United States District Court, E.D. Pennsylvania
law protects an employee from gender and disability
discrimination in the workplace and prohibits the employer
from firing an employee because she complained about
perceived gender discrimination. But federal law does not
guarantee a workplace code of civility and a female employee
subject to criticism of her job performance unrelated to her
gender or disability cannot automatically transform feelings
of disrespect - even when justified - into a federal gender
or disability discrimination case. She may proceed to a jury
trial arguing her employer fired her in retaliation for her
alleged complaints of gender discrimination by supervisors to
the company president. Following discovery, we today grant an
employer's motion for summary judgment dismissing a
terminated employee's gender and disability
discrimination claims as lacking evidence of discriminatory
animus. She is not out of court entirely as she adduced thin
but competent evidence of inconsistency or implausibility in
the employer's reasons for firing her after a private
conversation with the company president. We require our jury
evaluate credibility of these differing reasons possibly
allowing recovery for retaliation responsive to her
complaints of gender discrimination.
Facts in the light most favorable to Ms. Schwartz.
Nicomatic, Inc. hires Ms. Schwartz into a newly created human
Inc., a subsidiary of a French company, assembles and sells
connectors from its Warminster, Pennsylvania
facility. Illene Schwartz began working as an
accounting clerk at Nicomatic through a temporary placement
agency in April 2014. Oliver Nicollin, serving as president of
the Nicomatic subsidiary in Warminster while David Fisher,
the subsidiary's president, worked in its United Kingdom
office, hired Ms. Schwartz as a permanent employee in June
2014. Mr. Nicollin wanted Ms. Schwartz to plan
employee parties and events. Ms. Schwartz disputes his
characterization of her initial job duties.
Fisher returned from the U.K. and resumed serving as
Nicomatic's president.Upon returning, Mr. Fisher decided to
change Ms. Schwartz's role into a “more traditional
HR role.” Ms. Schwartz had no experience or
knowledge about human resources when she started in this new
role. Her role included “to be there and
motivate and engage employees, to keep records, to do
payroll.” Before Ms. Schwartz began this role,
Nicomatic did not have a dedicated human resources employee
at this location. Instead, Mr. Fisher and outside consultant
ADP TotalSource handled the human resources
Ms. Schwartz's issues with non-supervisor Payman
Schwartz began to have issues with Payman Karim, a business
unit manager shortly after becoming a permanent
employee. Mr. Karim did not manage Ms. Schwartz.
Mr. Karim was “nasty” towards Ms. Schwartz and
“scrutinize[d] [her] for everything he could come up
with.” Mr. Karim's conduct “was a
constant belittling of [her], regularly” and “he
didn't think much of [her] because I was
August or September 2014, Ms. Schwartz wore a sleeveless
shirt to a work meeting.Someone in the meeting made a comment
about “how [women's clothes] can't tell the
difference between a tank top, and different kinds of
shirts.” Mr. Karim then commented, “look,
Ilene doesn't wear her-follow the dress code
rules.” While Ms. Schwartz acknowledges
Nicomatic's dress code does prohibit sleeveless shirts,
she felt Mr. Karim's comment was “uncalled
for” because she dressed professionally. Ms. Schwartz
also believed Mr. Karim used his approach and comment in the
meeting to “belittle” her. Ms. Schwartz
reported Mr. Karim's “belittling” dress code
comment to Mr. Fischer. He initially ignored her complaint
but then asked her to re-write the dress code to define her
sleeveless shirt as compliant. Mr. Fisher denies ignoring her
first complaint, instead testified the sleeveless shirt
incident happened before he returned from the United
another point, Mr. Karim called Ms. Schwartz into his office
to remind her about the confidentiality of their roles and
suggested she had breached confidentiality by saying
something about an employee. Ms. Schwartz claims Mr. Karim
falsely accused her of breaching confidentiality because
another employee stated the confidential information, not Ms.
Karim also “scrutinized” Ms. Schwartz for snacks
in the lunchroom. First, Mr. Karim criticized her for not
having healthy snacks. Ms. Schwartz then put healthy snacks
in the lunch room and Mr. Karim complained she did not let
him know there were snacks in the lunchroom. Ms. Schwartz
then began e-mailing employees, including Mr. Karim, to let
them know the snacks were in the lunchroom. Then Mr.
Karim criticized her for not having enough fruit and healthy
snacks for everyone.
Karim accused Ms. Schwartz of causing the cleaning woman to
quit because she criticized her. Ms. Schwartz “never
had any issue with [the cleaning woman] or had a problem with
her” so Mr. Karim wrongly said it was her
fault. Mr. Karim set up interviews with
prospective employees on a casual Friday and
“intentionally” did not inform Ms. Schwartz,
leaving her “very upset” because she was dressed
in jeans and hoodie with her hair in a
ponytail. When meeting with the staff he
supervised, Mr. Karim told them he refused to “deal
with” Ms. Schwartz during reviews and then he and his
employee did not show up to the review meeting or showed up
really late because he “felt the whole thing was a
waste of his time.”
Karim stated Ms. Schwartz only came to his area “to
complain about his staff.”Ms. Schwartz complained
about an employee managed by Mr. Karim, “Suhail”,
because he used the “internet inappropriately and
against company policy” to watch croquette, play games,
and watch television. Nicomatic's IT personnel
confirmed Mr. Suhail had higher internet usage than all other
employees and she reported this to Mr. Fisher and Mr.
Karim. Mr. Suhail tried to hide this from Ms.
Schwartz but once, when he was away from his desk, she
“took a peak at his history and was quite surprised by
what [she] found.” Ms. Schwartz did not tell or seek
permission from Mr. Fisher or Mr. Karim to access Mr.
Karim also publically pointed out Ms. Schwartz's
mistakes. For example, in March 2015, she mistakenly included
a recently deceased employee and a recently fired employee in
a PowerPoint and Mr. Karim “nit-picked” and
“replied all” pointing out her mistake to
everyone.When Ms. Schwartz told Mr. Fisher about
Mr. Karim's “nit-pick, ” Mr. Fisher called
her “sensitive and thin-skinned.” Mr. Karim
also complained Ms. Schwartz's employee appreciation
breakfast in March 2015 was “disorganized” but it
was delayed due to morning snow and no one else
complained. Mr. Karim also disliked the concept of
serving the employees breakfast as a manager, he only wanted
to serve his own employees.
Karim told Mr. Fisher and Mr. Heft Ms. Schwartz failed to
send him testing for a prospective candidate but Mr. Heft
showed Mr. Karim the e-mail Ms. Schwartz sent with the
prospective candidate's testing. Mr. Heft told Ms.
Schwartz this happened and Ms. Schwartz did not take any
Nicomatic's “BG Day, ” a strategy and team
building event for Nicomatic employees around the world, in
November 2015, Ms. Schwartz booked hotel rooms for the
salespeople on her company credit card but the hotel declined
her credit card. Ms. Schwartz was not there when the card
was declined but Mr. Karim was and he, instead, used his
company credit card to pay for the hotel. Mr. Karim
“deliberately” never told Ms. Schwartz her card
was declined and she did not learn it until the hotel called
to tell her. Also during BG Days, Ms. Schwartz met
with Julian Nicollin, the president of Nicomatic in France,
and complained about Mr. Fisher. Ms. Schwartz did not
complain about gender harassment but abut “what goes on
in the plant” and how it is Mr. Fisher's way or no
Schwartz felt “at that point [he] was just a
jerk” because “he was always picking on
[her].” Ms. Schwartz complained to Phil Heft, a
business unit manager with Nicomatic, about Mr. Karim's
conduct towards her.
female employees complained about Mr. Karim to Ms. Schwartz
but none of them characterized it as gender
discrimination. A female employee told Mr. Karim she was
pregnant but requested he keep it confidential. Mr. Karim
instead shared the information with Mr. Nicollin, one of
Nicomatic's owners. Mr. Karim also belittled this female
employee based on “just the way he talks to females
… like they are dumb.” Ms. Schwartz reported
this female's complaint to ADP TotalSource liaison Mary
Jayne Dwyer who said it was “too late” because
the conduct was too far in the past.
Karim also offended another female employee, Cathy Juarb,
when he called her “Dawn's little helper.”
Dawn works in accounting but Dawn's gender is
unclear. Ms. Juarb asked Ms. Schwartz to address
it with Mr. Karim. She told him Ms. Juarb found his comment
“offensive” because she is not “a little
helper, ” she is an accounting clerk but Mr. Karim
refused to apologize because he “didn't say
anything wrong.” Ms. Schwartz informed Mr. Fisher of
Ms. Juarb's complaint and Mr. Karim's response and
Mr. Karim eventually did apologize to Ms. Juarb. Ms. Schwartz
did not report Ms. Juarb's to ADP
TotalSource. A third female employee who worked in IT
complained about the way Mr. Karim “talks to people,
the way he talks to her” but she preferred not take her
complaint any further.
point, Mr. Karim told Ms. Schwartz he no longer wanted to do
time cards for the three females in the assembly parts under
his department. Ms. Schwartz does not recall why Mr.
Karim made this request. Mr. Karim also complained after she
told male staff they should not use the female
Schwartz told Ms. Dwyer of ADP TotalSource she was
“constantly belittled” and “once again, the
male co-workers, they pretty much get away with murder before
something's done, and I get in trouble for the littlest
things or told about for the littlest
things.” Ms. Dwyer “downplayed” Ms.
Schwartz's complaints. Maureen Bradley replaced Ms.
Dwyer at ADP TotalSource in May 2015. Ms. Schwartz
complained to Ms. Bradley about the difference with her male
co-workers and the constant belittling.
Ms. Schwartz's issues with her manager, David
Schwartz was the only woman to hold a “leadership
role.” She felt Mr. Fisher, her manager, also
treated her differently from the men in
October 2014, Ms. Schwartz complained to Ms. Dwyer of ADP
TotalSource about Mr. Fisher. She told Ms. Dwyer she felt
she was being “pushed out” by Mr. Fisher because
he took her duties away, excluded her from management, and
informed her she was not a manger. Ms. Dwyer does recall
this call about being pushed out and characterized Ms.
Schwartz's half a dozen calls as “venting”
and stated Ms. Schwartz requested she not make
Schwartz also asked Mr. Fisher to promote her to manager
several times because there were no female
managers. Mr. Fisher did not respond initially to
her requests but then refused her telling her he would
consider promoting her to manager in the
future. Mr. Fisher then offered Ms. Schwartz a
promotion to quality manager but she declined the position to
stay in human resources. Mr. Fisher told Ms. Schwartz he
offered her the quality manager position to “kill two
birds with one stone” because she would get a
management position and Nicomatic would have a female
Schwartz believes Mr. Karim “fed” Mr. Fisher
information on her “at the
beginning.” Whenever Mr. Karim complained about Ms.
Schwartz to Mr. Fisher, Mr. Fisher would scrutinize the
complaint and Ms. Schwartz. Mr. Fisher never disciplined
or wrote her up. Mr. Fisher also routinely criticized and
rejected Ms. Schwartz's suggestions. Ms. Schwartz
suggested keeping employees' days off in a central
location and he rejected it. Mr. Fisher also wanted Ms.
Schwartz to feature a game for work lunches as an
“ice-breaker” but employees told her they hated
the games so she did not plan a game and Mr. Fisher
criticized her for not having a game. He said
“for $70, 000 we should show some employee
satisfaction” meaning for the $70, 000 salary Nicomatic
paid Ms. Schwartz, Mr. Fisher wanted to see employee
satisfaction. Mr. Fisher also told Ms. Schwartz she
“target[ed] employees for asking for updated
information on I9 forms.” Mr. Fisher also
criticized Ms. Schwartz for asking interviewees about family
and children but Ms. Schwartz denies asking these
Fisher told Ms. Schwartz someone complained Ms. Schwartz was
“unprofessional” and she was “picking on
people” her in a management meeting. Ms. Schwartz
asked two managers who were at the meeting and they said her
name was not mentioned. Once during a meeting, Ms. Schwartz
commented about how she was prepared and Mr. Fisher rejoined
“for the first time.” Nicomatic discouraged
employees from using their personal cell phone during work
and Ms. Schwartz “very, very rare[ly]” use[d] her
phone. One day she took a call from her husband
at 4:55pm and Mr. Fisher walked by and then waited at her
door until she hung up to say, “I thought you never
used your phone on company time?” Mr. Fisher
put Ms. Schwartz down a least once a week.
Fisher criticized Ms. Schwartz for bringing a job applicant
to interview because she had two previous workers'
compensation claims. He also “snapped” at her in
front of other staff for not training an employee but it was
not Ms. Schwartz's duty or assignment to train that
employee. Mr. Fisher also required Ms. Schwartz to
e-mail him explaining why she did not clock in one
morning” but did not require explanations from anyone
else. Mr. Fisher also accused Ms. Schwartz of
clocking out at 3:30pm but he incorrectly looked at the wrong
employee and Ms. Schwartz left at 5:10pm.
point, Mr. Fisher and Ms. Bradley from ADP TotalSource met
with Ms. Schwartz and told her she was negative and asked her
to “[p]ut on a happy face.”
Nicomatic's treatment of male employees.
Schwartz claims the criticisms pointed at her are distinct
from how Nicomatic treats male employees. For example, Nick
repeatedly talked on his phone, refused to wear safety gear
and was written up for violating these
policies. Nick also failed a drug test but Mr.
Fisher wanted to offer him rehabilitation, instead of firing
him under Nicomatic's policy. Ron Bowers had repeated
attendance issues which Ms. Schwartz and his manager
addressed with him. Nicomatic terminated Mr. Bowers'
employment for his attendance issues. Mr. Suhail
violated Nicomatic's internet policy but his manager, Mr.
Karim, did not terminate him. Rocco consistently arrived
late or not at all because of family issues and Ms. Schwartz
does not believe Nicomatic addressed his infractions but she
is not aware if his direct supervisors spoke to
him.Takisha, a man who worked as a cable
machine operator, fell asleep while his machine ran and his
supervisor caught him and wrote him up for an
infraction. Carlos, supervised by Mr. Fisher, had
repeated performance issues for which Nicomatic terminated
his employment.Even with all inferences in Ms.
Schwartz's favor, Nicomatic treated each disciplinary
matter on its own merit as a case-by-case decision.
Ms. Schwartz's medical leave.
February 2016, Ms. Schwartz had problems with her blood
pressure and spent two days in the hospital. Her
doctor then placed her on a week of bedrest. She returned to
work 30 hours the next week and then back to her normal 45
hour work week shortly after. While on bedrest, Mr.
Fisher e-mailed Ms. Schwartz with payroll questions and she
told him she was on bedrest and could not answer the
questions. Mr. Fisher accepted her refusal and
also approved her leaving early for medical needs when she
Ms. Schwartz returned from bedrest, she asked Maureen Bradley
for information about the Family Medical Leave Act, because
Nicomatic may employ the 50 persons necessary to qualify
under the Act, but Ms. Bradley never sent her the
information. Ms. Schwartz had the applications for
both leave under both the Act and Nicomatic's medical
leave plan when it was under 50 employees “printed out
on [her] desk” but she was not sure which plan applied,
although her role undisputedly included Nicomatic's human
resources. Ms. Schwartz never needed additional
medical leave so she never applied for leave.
Ms. Schwartz complains of harassment to President of
March 2, 2016, the president of Nicomatic in France, Julian
Nicollin, visited the Warminster facility of its
subsidiary. Ms. Schwartz told Mr. Nicollin she
felt harassed, treated differently than her male co-workers,
and called it a hostile work environment. She told him
“it's Dave-o-matic, not
Nicomatic.” She described how Mr. Karim treats
females, “it depends on who you are and how you're
treated.” Mr. Nicollin listened to her for over
an hour and he seemed to get “annoyed” but
thanked her sharing this information. Mr.
Nicollin then asked Ms. Schwartz what he could do for her and
she responded, “it didn't matter anymore because,
you know, I've already reached my point ….I was
looking for another job.” She also said she
liked her job and did not want to leave but did not like how
she was treated.
Nicomatic terminates Ms. Schwartz's employment.
March 2016, ADP TotalSource began to investigate an incident
between two employees Anna and Deb. The incident involved
Anna speaking on her phone loudly and Ms. Schwartz observed
the employees on either side of Anna “looking over in
aggravation” but Anna did not stop
talking. Ms. Schwartz went over to Anna's
manager and pointed out the employees are obviously annoyed
and the manager went over to say something. Anna,
however, believed Deb complained about her. When Anna
learned Ms. Schwartz actually made the complaint, she
complained directly to ADP TotalSource because she felt she
could not talk to Ms. Schwartz. During the
investigation, Ms. Bradley also spoke with Mr. Nicollin about
Ms. Schwartz's conversation with him and he stated her
complaints “did not appear to be an issue of
harassment.” In April, shortly after Ms. Schwartz
spoke with Mr. Nicollin, Nicomatic held a sales meeting but
did not invite her based on her meeting with Mr. Nicollin
because she “should have been
before April 8, 2016, Ms. Bradley e-mailed Ms. Schwartz
stating she would be at Nicomatic to speak with Deb and Ms.
Schwartz stated Deb would not be in. Ms.
Bradley requested Ms. Schwartz meet with her while there and
they scheduled a meeting for April 15.
April 15, 2016, Mr. Fisher and Ms. Bradley met with Ms.
Schwartz to discuss her position with Nicomatic. When Ms.
Schwartz arrived, Mr. Fisher began by wanting to end her
employment amicably and for her to take severance
pay. Ms. Schwartz asked what happens if she
refused severance pay and he stated she would be put on
performance improvement plan and explained why. Ms.
Schwartz responded she needed another six weeks working in
human resources to qualify for a certification in the human
resources field. Mr. Fisher and Ms. Bradley offered
eight weeks of severance pay and to call her a consultant so
she could still apply for her certificate, and they also
would not contest her unemployment.
Schwartz accepted the offer because she felt Mr. Fisher would
not permit her to take the performance improvement plan and
he made it “very clear” he wanted her
gone. She also could not read the separation
agreement because she did not have her reading glasses but
Mr. Fisher told her not to get her glasses and to “just
sign it.” Mr. Fisher's “last
words” to Ms. Schwartz were “I don't know
what you said to Julian [Nicollin], but he made it seem as if
this relationship was irreversible.” Mr.
Fisher denies saying this and testified he and Ms. Bradley
had no intention of firing Ms. Schwartz because “we
hadn't done anything to justify firing
her.” Mr. Fisher testified he called Ms.
Schwartz to see if she would return to work but Ms. Bradley
testified she and Mr. Fisher would not consider Ms. Schwartz
returning to work.These conflicting accounts create some
inconsistency in the reasons why Nicomatic fired Ms.
Schwartz then rescinded the severance agreement within the
seven day window.Mr. Fisher twice left voice mails
telling Ms. Schwartz it would not pay severance because she
rescinded the agreement. Ms. Schwartz did not listen
to the message “until forever afterwards” and did
not return his call or return to work at
Nicomatic. Nicomatic replaced Ms. Schwartz with a
Schwartz sued her employer Nicomatic, Inc. and its related
entities and consultant ADP TotalSource, Inc., and its
affiliate ADP TotalSource FL XVII, Inc. (collectively
“Nicomatic”) alleging “unlawful gender
discrimination and/or retaliation in violation of Title
VII.” Ms. Schwartz alleged Nicomatic
discriminated against by terminating her employment because
they regarded her as disabled violating the Americans with
Disabilities Act. Ms. Schwartz also alleges Nicomatic's
discrimination in firing her based on her gender and
disability violated Pennsylvania's Human Rights Act. Ms.
Schwartz alleges Nicomatic interfered and retaliated with her
exercise of rights under the Family Medical Leave Act.
moves for summary judgment on Ms. Schwartz's Title VII
claims but there is confusion as to which exact claims Ms.
Schwartz brings under Title VII between the pleadings and
summary judgment motions. In her complaint, Ms.
Schwartz does not clearly separate out her Title VII claims
but generally alleges “unlawful gender discrimination
and/or retaliation in violation of Title
VII.” Nicomatic moves for summary judgment
on Title VII gender discrimination and retaliation under
Title VII. In her response to summary judgment, Ms. Schwartz
argues she adduced evidence of a hostile work environment
claim based on gender and a retaliation claim under Title
VII. We presume Ms. Schwartz's abandoned her Title VII
gender discrimination claim. Ms. Schwartz's unplead
hostile work environment claim is more complicated. Her
complaint does not mention “hostile work
environment” or reference severe or pervasive conduct
and Nicomatic did not move for summary judgment on a hostile
work environment claim.
Ms. Schwartz does not adduce evidence of Title VII gender
Schwartz alleges Nicomatic discriminated against her on the
basis of her gender by terminating her employment for
violations when Nicomatic did not enforce these same
violations against male employees. Ms. Schwartz offered no
argument in her response as to her gender discrimination
claim. Ms. Schwartz also fails to adduce evidence of a
genuine dispute of material fact whether Nicomatic terminated
her employment based on gender.
the McDonnell Douglas framework, Ms. Schwartz must
adduce evidence (1) she is a member of a protected class; (2)
she was qualified for the position; (3) she suffered an
adverse employment action; and (4) the “action occurred
under circumstances that give rise to the inference of
unlawful discrimination.” We use the
McDonnell Douglas framework in the absence of direct
evidence of discriminatory animus, to determine if
Nicomatic's termination of is motivated by discriminatory
animus based on gender.
Schwartz is a woman, qualified for her job, and Nicomatic
terminated her employment. Ms. Schwartz must then point to
facts showing an inference Nicomatic fired her because she is
a woman. Ms. Schwartz did not testify to any direct evidence
of gender based discrimination because she never testifies to
an affirmative derogatory statement about women by either Mr.
Fisher or Mr. Karim. Ms. Schwartz instead testified she
perceived Mr. Fisher and Mr. Karim belittled and picked her
because she was a woman.
absence of direct evidence, Ms. Schwartz can create an
inference Nicomatic fired her because she was a woman by
adducing evidence “similarly situated persons outside
the protected class were treated more favorably” or
other evidence establishing “some causal nexus between
… membership in a protected class and the [adverse
Schwartz first fails to adduce evidence Mr. Fisher treated a
similarly situated male employee differently. Ms. Schwartz
can meet this burden by showing “two employees dealt
with the same supervisor, were subject to the same standards,
and had engaged in similar conduct without such
differentiating or mitigating circumstances as would
distinguish their conduct or the employer's treatment of
them.” Ms. Schwartz argues her termination
raises the inference of gender discrimination because male
employees committed infractions and never suffered adverse
action. Mr. Fisher supervised Ms. Schwartz and allegedly
wanted to fire her because she reported to his supervisor Mr.
Fisher only scrutinized her infractions because she was a
woman, treating her differently from male employees. Besides
the final meeting where Mr. Fisher offered her a performance
improvement plan, he never formally wrote up Ms. Schwartz for
Schwartz testified about six male comparators, however, she
testified three of the male comparators, Ron Bowers, Takisha,
and Carlos, were either written up or fired for their
infractions discounting their value as
comparators. The other three males either did not
share the supervisor or engaged in conduct so dissimilar they
cannot be a comparator. Suhail is not a comparator because he
was supervised by Mr. Karim, not Mr. Fisher and allegedly
used the internet for non-work purposes, an infraction, which
Mr. Fisher never alleged Ms. Schwartz
committed. Rocco is similarly not a comparator
because he was supervised by Phil Heft and Elsa, not Mr.
Fisher and Ms. Schwartz does not know if either supervisor
subjected Rocco to formal or informal scrutiny. Nick
allegedly failed a drug test but Ms. Schwartz testified Mr.
Fisher wanted to offer him rehabilitation, instead of firing
him under Nicomatic's policy.Based on her testimony,
we will assume Mr. Fisher supervised both Ms. Schwartz and
Nick. Nick cannot be a comparator because allegedly failing a
drug test is too dissimilar from being scrutinized for minor
infractions to compare if Mr. Fisher treated them differently
based on gender. Ms. Schwartz fails to adduce evidence of a
male employee supervised by Mr. Fisher who committed minor
infractions and received no criticism or scrutiny.
Schwartz can also use other evidence to establish a causal
nexus between her protected class and the adverse action,
however, she fails to adduce evidence of a causal nexus. Even
if we considered “me too” evidence
from other female employees, Ms. Schwartz testifies three
female employees complained about Mr. Karim's, not Mr.
Fisher's conduct, and also testified the women did not
couch their complaints as gender
grant summary judgment for Nicomatic on Ms. Schwartz's
Title VII and PHRA gender discrimination claim because she
fails to adduce evidence of a genuine dispute of material
fact of a causal nexus between her gender and the adverse
Ms. Schwartz does not adduce evidence of Title VII hostile
work environment based on gender.
Schwartz alleges a hostile work environment claim based on
gender for the first time in response to Nicomatic's
motion for summary judgment. She does not allege hostile work
environment and Nicomatic consequently did not move for
summary judgment on it. We address her claim because there is
no prejudice to Nicomatic as Ms. Schwartz fails, in any
event, to adduce evidence of a prima facie case of
hostile work environment based on gender.
proceed, Ms. Schwartz must adduce evidence: (1) Mr. Karim and
Mr. Fisher intentionally discriminated against her based on
her gender; (2) Mr. Karim's and Mr. Fisher's
discrimination was severe or pervasive; (3) the
discrimination detrimentally affected Ms. Schwartz; (4)
“the discrimination would detrimentally affect a
reasonable person in like circumstances, and (5) the
existence of respondeat superior
liability.” “Severe or persuasive”
requires evidence Mr. Karim's and Mr. Fisher's
discrimination “alter[ed] the conditions of [Ms.
Schwartz's] employment and create[d] an abusive working
environment.” We look “at all the
circumstances, including the frequency of the discriminatory
conduct, its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with [Ms. Schwartz's] work
first element, Ms. Schwartz fails to adduce evidence of
intentional discrimination based on gender by either Mr.
Karim or Mr. Fisher. Because Title VII is not a “code
of civility for the work place, ” Ms. Schwartz must
adduce evidence beyond rude or inappropriate conduct, she
must show Mr. Karim or Mr. Fisher intentionally harassed
because of her gender. Ms. Schwartz offers no
evidence Mr. Karim's or Mr. Fisher's comments were
based on her gender besides her own perception it was because
she was a woman. Neither used derogatory terms for women, or
allegedly ever mentioned Ms. Schwartz's gender in a
Deans v. Kenndey House, Inc., in a plead hostile
work environment claim, a man alleged intentional
discrimination based on gender and race because his
supervisor made numerous comments about the man's
childcare responsibilities, took disciplinary actions against
the man, and engaged in heightened scrutiny of the man's
work. The court found the man did not allege
intentional discrimination because none of the
supervisor's “actions is clearly
discriminatory” and the man did not allege the
supervisors “ever made overtly racist or sexists
Schwartz's allegations center on scrutiny and criticism
of her work, as in Dean, and the record is devoid of
a clearly discriminatory action taken by or an overt sexist
or gender based comments made by Mr. Karim or Mr. Fisher. Ms.
Schwartz fails to adduce evidence of intentional
discrimination because of her gender and fails to adduce
evidence of a prima facie but unplead claim for
hostile work environment based on gender.
Ms. Schwartz adduces scant but enough evidence of Title VII
Schwartz alleges Nicomatic retaliated against her for
complaining to Mr. Nicollin about Mr. Fisher's gender
based harassment. A Title VII retaliation claim requires Ms.
Schwartz adduce evidence “(1) she engaged in activity
protected by Title VII; (2) [Nicomatic] took an adverse
employment action against her; and, (3) there was a causal
connection between her participation in the protected
activity and the adverse employment
action.” Viewing evidence in the light most
favorable to her, Ms. Schwartz adduces evidence she engaged
in protected activity by reporting her view of Mr.
Fisher's gender based harassment to Mr. Nicollin, Mr.
Fisher's supervisor and an adverse employment action,
Nicomatic terminating her employment.
Schwartz is able to establish a prima facie case of
retaliation based on her alleged complaint of gender based
harassment, although unable to adduce evidence of a prima
facie case of gender-based disparate impact
discrimination because the evidence required is different. In
LaRochelle v. Wilmac Corp., one of the employees,
Ms. LaRochelle alleged her co-worker harassed her by touching
her breasts and making sexually suggestive
comments. Ms. LaRochelle complained to her
superiors but nothing happened, and her co-worker
“intensified” his sexual advances. One night
in September 2010, in front of their superior, her co-worker
slapped Ms. LaRochelle on the backside and made a sexually
suggestive comment. Ms. LaRochelle told to remove his
hands and their superior told the co-worker to “keep
[his] hands off our House Nigger.” This
superior also made other racist remarks to Ms. LaRochelle,
including using the n-word and Ms. LaRochelle reported it to
a supervisor but the supervisor told her it was “just
joking” but he would speak with the superior.
night of her co-worker's assault, Ms. LaRochelle
attempted to file a police assault report but the night
supervisor told her it would be handled in-house so Ms.
LaRochelle gave the night supervisor a written complaint
against her co-worker and superior. Ms. LaRochelle also
complained directly to human resources director about the
co-worker's sexual harassment and assault and he told her
to follow the “chain of command.” On
September 22, 2010, Ms. LaRochelle complained about her
co-worker's sexual harassment and her superior's
racial harassment to the Administrator.
days before she was fired, on October 1, 2010, Ms. LaRochelle
also gave a written complaint about this harassment to the
Director of Nursing who tore it up and threw it in the
trash. Ms. LaRochelle left the Director's
office and shortly after, the Director called telling her
employment was terminated. The employer alleges it
terminated her employment for missing work two consecutive
days without notice, October 1st and 2nd, 2010.
LaRochelle alleged racial discrimination under § 1981
and retaliation under Title VII. The district court granted
summary judgment for the employer on Ms. LaRochelle's
racial discrimination claim because she failed to show causal
nexus between the superior's racist comments and her
being fired because she did not adduce “evidence of a
racially discriminatory animus on the part of any of the
decision makers in her termination or allege that similarly
situated employees who were not members of her protected
class were treated differently.”
district court, however, denied summary judgment for the
employer on Ms. LaRochelle's retaliation claim because
she adduced evidence she complained about harassment to
numerous superiors in late September, including to the
director of nursing, who ripped up her complaint two days
before firing her on October 1st. The court found she
adduced evidence for a jury to find the employer fired Ms.
LaRochelle for reporting the alleged
Schwartz, as in LaRochelle, fails to raise a causal
connection between any gender-based derogatory comments from
Mr. Fisher or evidence of similarly situated persons outside
her protected class treated differently to make a prima
face case of gender discrimination under Title VII. Ms.
Schwartz, however, does adduce evidence of temporal proximity
and factual inconsistencies between her alleged complaint of
gender-based harassment by Mr. Fisher to his superior and her
shown a prima facie case, the burden now shifts to
Nicomatic to articulate a legitimate, nondiscriminatory
reason for terminating Ms. Schwartz's
employment. Nicomatic meets the burden with
evidence of Ms. Schwartz's performance deficiencies and
it offered Ms. Schwartz the option to be placed on a
performance improvement plan or a severance package if Ms.
Schwartz decided not to accept the performance improvement
burden now shifts back to Ms. Schwartz to adduce evidence of
“weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in [Nicomatic's]
proffered legitimate reasons” to show discriminatory
animus is really the motivating factor for Nicomatic
terminating her employment. Ms. Schwartz must show
“by a preponderance of the evidence that there is a
‘but-for' causal connection' between the
adverse employment action and retaliatory
the evidence in a light most favorable to Ms. Schwartz, she
adduces evidence on March 2, 2016, she complained to Mr.
Nicollin about her manager Mr. Fisher stating she felt
harassed, treated differently than her male co-workers, and
called the local Warminster facility a hostile work
environment. She also told him Mr. Karim treats female
employees different.Mr. Nicollin testified when Ms.
Schwartz complained to him she never mentioned being treated
differently because she was a woman but only complained about
Mr. Fisher's micro-managing style. This
material fact is disputed.
Schwartz also adduces evidence Mr. Nicollin told Mr. Fisher
the contours of her complaint because Mr. Fisher told her
“I don't know what you said to Julian [Nicollin],
but he made it seem as if this relationship was
irreversible.” Mr. Fisher denies saying making
this statement. Ms. Bradley also testified Mr. Fisher
asked her to contact Mr. Nicollin to find out what Ms.
Schwartz said to Mr. Nicollin during the March 2nd
meeting. In Nicomatic's EEOC response,
however, Mr. Fisher denies knowing of Ms. Schwartz's
meeting with Mr. Nicollin until after they fired Ms.
Schwartz. Ms. Schwartz also testified Mr. Fisher
planned to fire her because the first thing he told her was
they wanted to end her employment amicably and for her to
take severance pay and the performance improvement plan did
not come up until she asked what happened if she did not
accept the severance package. Ms. Schwartz also adduces
evidence challenging whether Mr. Fisher's true intention
was to fire her because Mr. Fisher testified after Ms.
Schwartz revoked the severance agreement he called her to ask
her when she was coming back to work. By comparison, Ms.
Bradley testified she and Mr. Fisher would not consider Ms.
Schwartz returning to work after she revoked the severance
the evidence to support Mr. Fisher's gender based
discriminatory animus is very thin, at this stage we must
resolve all inferences in Ms. Schwartz's favor and the
disputes are based entirely on the credibility of witnesses
which must be resolved by the jury. We deny Nicomatic summary
judgment on Ms. Schwartz's Title VII retaliation claim.
Ms. Schwartz does not adduce evidence of disability
Schwartz argues Nicomatic regarded her as disabled based on
her high blood pressure and discharged her because of her
disability violating the Americans with Disabilities Act. To
prove Nicomatic discriminated against Ms. Schwartz based on
her disability, she must adduce evidence “(1) [she] is
a disabled person within the meaning of the ADA; (2) [she] is
otherwise able to perform the essential functions of the job,
with or without reasonable accommodations by the employer;
and, (3) [she] suffered an otherwise adverse employment
decision as a result of discrimination.” To be a
“qualified individual with a disability”, Ms.
Schwartz adduce evidence “she has mental impairment
that substantially limits a major life activity, has a record
of such an impairment, or is regarded as having such an
Schwartz argues she is not disabled but Nicomatic
“regarded” her as being disabled after her
hospital stay and bedrest for high blood pressure. Ms.
Schwartz is otherwise able to perform her job and Nicomatic
terminated her employment. Ms. Schwartz, however, Ms. El must
adduce a causal connection between Nicomatic regarded her as
disabled and the adverse employment action of being
fired. Ms. Schwartz argues a causal
connection exists because “at the time” Nicomatic
fired her, Nicomatic did not know if her “condition
would abate” because Ms. Schwartz testified she still
was still undergoing testing. Undergoing medical testing
alone is not enough to establish an inference of
discriminatory animus. Ms. Schwartz does not testify Mr.
Fisher made a discriminatory comment about her high blood
pressure, and admits when she told him she could not work
while on bedrest, Mr. Fisher did not retaliate or act in a
negative way towards her. Ms. Schwartz also testified
Mr. Fisher approved her leaving early for medical needs when
she returned without comment. Ms. Schwartz adduced no
evidence of animus based on disability.
grant summary judgment on Ms. Schwartz's ADA and PHRA
disability discrimination claim because she fails to adduce a
genuine dispute of material fact Nicomatic's termination
of her employment is causally connected to Nicomatic
“regarding” her as disabled to create an
inference of disability discrimination.
Ms. Schwartz did not adduce evidence of Family Medical Leave
Act retaliation or interference.
prevail on her Family Medical Leave Act retaliation claim,
Ms. Schwartz must adduce evidence “(1) she invoked her
right to FMLA-qualifying leave, (2) she suffered an adverse
employment decision; and, (3) the adverse action was causally
related to her invocation of rights.” For a
Family Medical Leave Act interference claim, Ms. Schwartz
must adduce evidence (1) she was entitled to take FMLA leave
on a certain date; and, (2) Nicomatic denied her the right to
Schwartz fails to adduce a prima facie claim of FMLA
retaliation or interference because she never invoked her
right to take FMLA-qualifying leave nor did Nicomatic ever
interfere with leave because she never applied for FMLA
leave. Ms. Schwartz does not testify she used FMLA leave for
her hospitalization and bedrest. Ms. Schwartz first asked
about FMLA leave when she returned from bedrest and asked Ms.
Bradley whether, if she needed leave, the Family Medical
Leave Act applies because Nicomatic may qualify based on 50
employees.Ms. Schwartz, the human resources
manager in charge of payroll, alleges Ms. Bradley never
confirmed the employee number so she was unsure which
applications, one for federal and non- federal, to use if she
needed more leave. Ms. Schwartz never needed additional
medical leave so she never submitted either leave plan
grant Nicomatic summary judgment on Ms. Schwartz's FMLA
claims because she does not adduce evidence of a prima
facie case because she never invoked her right under the
Act and she was never entitled to leave under the Act.
accompanying Order, we grant Nicomatic summary judgment
dismissing Ms. Schwartz's gender discrimination and
hostile work environment claims under Title VII and PHRA. We
also grant Nicomatic summary judgment dismissing her
disability discrimination claim under the ADA and PHRA and
her interference/retaliation claim under the FMLA. We deny
Nicomatic summary judgment on Ms. Schwartz's Title VII
retaliation claim because there are genuine disputes of
material fact whether her complaints to the Nicomatic