United States District Court, M.D. Pennsylvania
LEONARD L. PATRICK, Plaintiff
WERNER ENTERPRISES, Defendant
REPORT AND RECOMMENDATION
E. SCHWAB, CHIEF UNITED STATES MAGISTRATE JUDGE.
plaintiff, Leonard L. Patrick, brings claims of sexual
harassment and retaliation under Title VII against the
defendant, Werner Enterprises (“Werner”). Because
the undisputed facts show that Werner was not Patrick's
employer, we recommend that the Court grant Werner's
motion for summary judgment. In addition, even assuming that
Werner was Patrick's employer, Werner is entitled to
summary judgment because given the undisputed facts, a
reasonable trier of fact could not conclude that Werner
subjected Patrick to a sexually hostile work environment or
retaliated against him after he complained that he was
subject to a sexually hostile environment.
Background and Procedural History.
began this action in January of 2015. Although Patrick was
pro se when he began this action, counsel
subsequently entered an appearance on behalf of Patrick and
filed an amended complaint in March of 2016. The amended
complaint contains two Title VII claims against Werner. The
first is a sexual harassment claim based on conduct allegedly
perpetrated upon Patrick by David Tompkins. More
specifically, Patrick alleges that Tompkins told him that his
lisp made him sound gay, showed him photos on his cell phone
of nude women, and sexually assaulted him. The second is a
claim that Werner retaliated against him after he reported
the conduct by Tompkins. More specifically, Patrick alleges
that after he reported Tompkins's actions, he began
receiving lower paying, less desirable job assignments and he
was subsequently terminated. Werner filed an answer to the
amended complaint, and the parties engaged in discovery.
Court subsequently granted Patrick's counsel leave to
withdraw from the action after he accepted employment with
the Commonwealth. Discovery continued with Patrick proceeding
pro se. The undersigned held several telephone
discovery conferences with the parties.
March 24, 2017, Patrick filed a number of exhibits consisting
of documents from MassMutual Financial Group regarding
“Werner Enterprises, Inc. and Subsidiaries
Employees' 401(k) Retirement Savings Plan” and
documents regarding Patrick's application of unemployment
compensation benefits as well as other benefits from the
Pennsylvania Department of Public Welfare. See Docs.
78 & 79. Because there was no motion pending at the time,
the parties were in the discovery process, and it was not the
time for the parties to be filing evidence with the court, by
Order dated March 27, 2017, we ordered those documents
stricken from the record.
26, 2017, Patrick filed a “Memorandum” and
exhibits consisting of various photographs, a stick-figure
drawing of an assault, more unemployment compensation
documents, phone bills and call logs, excerpts from legal
treatises, a Werner ID card, Werner's response to
Patrick's EEOC complaint, and a written warning issued to
Patrick. See Doc. 90. Again, at the time Patrick
filed those documents, no motion was pending. Thus, by an
Order dated August 7, 2017, we ordered them stricken from the
record. We noted that Patrick may file a memorandum and
exhibits at the appropriate time, which would be either in
opposition to a motion filed by Werner or in support of a
motion filed by Patrick.
August 9, 2017, Patrick filed a motion for reconsideration of
the Order of August 7th striking his memorandum. But
concluding that he did not present a cogent reason for the
Court to reconsider the Order of August 7th, we denied that
August 9, 2017, Werner filed a motion for summary judgment, a
brief in support, a statement of material facts, and
supporting documents. We ordered Patrick to file, on or
before September 5, 2017, a brief in opposition to
Werner's motion, a response to Werner's statement of
material facts, and any transcripts, affidavits, or other
relevant documentation in accordance with Local Rules 7.6 and
56.1. We noted that unlike the previous memorandum that
Patrick filed, his brief in opposition to the motion for
summary judgment shall, at a minimum, respond to the
arguments raised in Werner's brief in support. Further,
we highlighted for Patrick that in accordance with Local Rule
56.1, his response to Werner's statement of material
facts must respond to the numbered paragraphs set forth in
Werner's statement of material facts, and he must cite to
record evidence supporting any denial of Werner's
statements of material fact. We also warned Patrick that if
he fails to deny a material fact set forth in Werner's
statement of material fact, that fact shall be deemed
admitted. Likewise, we warned Patrick that if he fails to
cite to record evidence to support a denial of a material
fact set forth in Werner's statement of material facts,
that fact shall be deemed admitted.
has not filed a brief in opposition to Werner's motion
for summary judgment as ordered. Nor has he filed a response
to Werner's statement of material facts. Based on the
undisputed facts, Werner is entitled to summary judgment.
Summary Judgment Standards.
moves for summary judgment under Rule 56(a) of the Federal
Rules of Civil Procedure, which provides that “[t]he
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “Through summary adjudication the
court may dispose of those claims that do not present a
‘genuine dispute as to any material fact' and for
which a jury trial would be an empty and unnecessary
formality.” Goudy-Bachman v. U.S. Dept. of Health
& Human Services, 811 F.Supp.2d 1086, 1091 (M.D. Pa.
2011) (quoting Fed.R.Civ.P. 56(a)).
moving party bears the initial responsibility of informing
the court of the basis for its motion and identifying those
portions of the record that demonstrate the absence of a
genuine dispute of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). With respect to an
issue on which the nonmoving party bears the burden of proof,
the moving party may discharge that burden by
“‘showing'-that is, pointing out to ...