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Bass v. A. Pickett Construction, Inc.

United States District Court, M.D. Pennsylvania

August 18, 2017

WALTER BASS, Plaintiff,



         Before 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 defendants.[1]

         The 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.


         Plaintiff 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).

         Michael 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).

         Plaintiff 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).

         Subsequently 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.[3]

         Defendants moved jointly for summary judgment on both counts, bringing the case to its current posture.


         We have 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.

         Standard of review

         Granting 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).

         In 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 ...

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