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Patrick v. Werner Enterprises

United States District Court, M.D. Pennsylvania

December 11, 2017

LEONARD L. PATRICK, Plaintiff
v.
WERNER ENTERPRISES, Defendant

          REPORT AND RECOMMENDATION

          SUSAN E. SCHWAB, CHIEF UNITED STATES MAGISTRATE JUDGE.

         I. Introduction.

         The 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.

         II. Background and Procedural History.

         Patrick 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.

         The 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.

         On 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.

         On July 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.

         On 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 motion.

         Also on 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.

         Patrick 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.

         III. Summary Judgment Standards.

         Werner 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)).

         The 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 ...


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