United States District Court, M.D. Pennsylvania
JAMES M. MUNLEY UNITED STATES DISTRICT COURT
the court is the defendants' motion for summary judgment
filed on April 26, 2017 pursuant to Rule 56(a) of the Federal
Rules of Civil Procedure. Count I of the plaintiff's
amended complaint filed on February 6, 2017, alleges Title
VII retaliation against A. Pickett Construction, Inc.,
(hereinafter “employer”). Count II alleges
Pennsylvania Human Relations Act retaliation against both
parties have briefed their respective positions and oral
argument was held on defendants' motion on August 10,
2017. The motion is thus ripe for disposition.
worked for employer beginning from October 2015 to December
21, 2015. (Doc. 30 ¶ 12, 18). No evidence or allegations
of record reflect any issues with plaintiff's work
quality, showing up for work, or timeliness. Disputed issues
of material fact exist as to whether plaintiff was a good
employee. (See Doc. 33-1 ¶¶ 114-116).
Gill (hereinafter “Gill”) was plaintiff's
supervisor. (Doc. 30 ¶ 3). During plaintiff's
employment Gill allegedly made numerous inappropriate and
sexually offensive comments, gestures, and jokes, including
but not limited to comments about Gill's penis; putting a
tape measure between plaintiff's face and Gill's
groin and saying plaintiff was “thirty-three inches
away from being a cocksucker;” and banging under a
table and saying plaintiff's mother was under the table,
implying plaintiff's mother was engaging in oral sex with
Gill. See generally (Doc. 20) (amended complaint).
Gill allegedly “asked [plaintiff]...who kicks [your]
sister in the back of the head, ” to which plaintiff
responded “what are you talking about?” Gill
allegedly replied “I heard that's how you
circumcise a hillbilly is by kicking your sister in the back
of the head. So was it your father or your brother?”
(Doc. 33-1 ¶ 27).
alleges that on December 18, 2015 he complained to management
about Gill's pervasive and sexually offensive comments
and conduct. (Doc. 20 ¶ 17). Next time he reported for
work defendant James Zavaskas (hereinafter
“Zavaskas”) fired him on the spot (Doc. 30 ¶
52), allegedly saying that complaining about Gill's
conduct was insubordination and the complaints of sexual
harassment were the reason for plaintiff's termination.
(Doc. 33-1 ¶¶ 101-107). In the same meeting
plaintiff alleges he complained again about Gill's
conduct to Zavaskas. Zavaskas allegedly said he
“didn't care.” Notably, Zavaskas co-owns A.
Pickett Construction, Inc. (Doc. 30 at 1).
plaintiff sued employer, and later added Zavaskas, for
same-sex sexual harassment under Title VII and the
Pennsylvania Human Relations Act (hereinafter
“PHRA”), claiming sexual harassment by his
supervisor, Gill. Zavaskas' alleged firing of plaintiff
in retaliation for reporting Gill's conduct gave rise to
a retaliation claim against both defendants. Only the
retaliation claim remains in the case.
moved jointly for summary judgment on both counts, bringing
the case to its current posture.
subject matter jurisdiction in this case pursuant to 28
U.S.C. § 1331. Plaintiff initially proceeded under Title
VII and the PHRA. He has exhausted his administrative
remedies for both claims by dually filing Charge of
Discrimination with the Equal Employment Opportunity
Commission (“EEOC) and the Pennsylvania Human Relations
Commission by filing a lawsuit within 90 (ninety) days of
receiving his Notice of Right to Sue letter from the EEOC,
and by bringing the case at bar after his PHRA claims were
pending for at least 1 (one) year. (Doc. 20 ¶ 5). Thus,
we properly exercise supplementary jurisdiction over his
state claims pursuant to 28 U.S.C. § 1367.
summary judgment is proper “‘if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law.'” See Knabe v. Boury, 114 F.3d 407,
410 n.4 (3d Cir. 1997) (quoting Fed.R.Civ.P. 56(c)).
“[T]his standard provides that the mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (emphasis in original).
considering a motion for summary judgment, the court must
examine the facts in the light most favorable to the party
opposing the motion. Int'l Raw Materials, Ltd. v.
Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990).
The burden is on the moving party to demonstrate that the
evidence is such that a reasonable jury could not return a
verdict for the non-moving party. Anderson, 477 U.S.
at 248 (1986). A fact is material when it might affect the
outcome of the suit under the governing law. Id.
Where the non-moving party will bear the burden of proof at
trial, the party moving for summary judgment may meet its
burden by showing that the evidentiary materials of record,
if reduced to admissible evidence, would be insufficient to
carry the non-movant's burden of proof at trial.
Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once
the moving party satisfies its burden, the burden then ...