United States District Court, E.D. Pennsylvania
OPINION DEFENDANT'S MOTION FOR SUMMARY JUDGMENT,
ECF NO. 32 - GRANTED.
F. LEESON, JR. United States District Judge.
case, Plaintiff Alice Berger, an equipment operator for
Defendant Commonwealth of Pennsylvania, Department of
Transportation (PennDOT) asserts a series of sex and
disability discrimination claims against PennDOT. First, she
alleges that PennDOT discriminated against her on the basis
of sex and retaliated against her for opposing sex
discrimination when it suspended her in August 2014 after she
was accused of stealing a load of dirt from a work site.
Second, she alleges PennDOT subjected her to a hostile work
environment when a PennDOT foreman harassed her because of
her sex. Third, she alleges that PennDOT maintains a bathroom
policy that has a disparate impact on female employees who
work outdoors. Fourth, she alleges that PennDOT discriminated
against her on the basis of her disabilities-diverticulitis
and Lyme disease-when it failed to accommodate these
conditions and that it retaliated against her for seeking
accommodations for these conditions. PennDOT has moved for
summary judgment on each of these claims. For the reasons set
forth below, PennDOT's motion is granted.
following facts, which are derived substantially from the
parties' Statements of Facts, are either undisputed or
interpreted in the light most favorable to Berger, the
Berger's colleagues and chain-of-command
was hired by PennDOT in 1991 as an equipment operator in
Northampton County. Def.'s Statement of Undisputed
Material Facts (“Def.'s Stat.”) ¶ 1, ECF
No. 32-2. The unit in which Berger works employs over fifty
male equipment operators and three female equipment
operators. Pl.'s Resp. to Def.'s Statement of
Undisputed Material Facts and Pl.'s Counter-Statement of
Material Facts (“Pl.'s Stat.”) ¶ 123,
ECF No. 35-1.
worked within “District 5” of PennDOT. Denise
Levchak was the Human Resources Officer for District 5.
Pl.'s Stat. ¶ 124. Joseph Rhodomoyer was the Labor
Relations Coordinator for District 5 and reported to Levchak
in 2014. Pl.'s Stat. ¶ 125. In 2014, Shawn Campanaro
was the Assistant County Maintenance Manager. Pl.'s Stat.
Fred Farleigh's conduct
and 2014, Fred Farleigh served as a foreman for PennDOT.
Def.'s Stat. ¶ 15. A foreman's job is to
coordinate PennDOT projects in the field and manage operators
to execute the project's goals. Def.'s Stat. ¶
16. Berger is Farleigh's cousin and she has known him
since her childhood. Def.'s Stat. ¶ 18. Berger began
encountering problems with Farleigh immediately after she
began working under him. Def.'s Stat. ¶ 20. The
problems included Farleigh's “yelling, screaming,
throwing his hands up, saying the Lord's name in
vain” and “throwing his hands up in the air,
turning around, [and] shaking his head” to express his
disgust. Def.'s Stat. ¶ 21. In addition, Farleigh
would intentionally antagonize Berger in various ways; for
example, while Berger was operating machines, Farleigh would
use incorrect hand signals to indicate what Berger was
supposed to do and then reprimand Berger when she did things
incorrectly. Def.'s Stat. ¶ 23. Farleigh also did
not assign Berger certain overtime shifts. Def.'s Stat.
¶ 26. Although he would say critical things about and
use inappropriate language towards others, he was especially
loud and impatient with Berger and directed more
inappropriate language to her than to others. See
Pl.'s Stat. ¶ 22. Berger believes that Farleigh
acted this way toward her based on her sex because, although
she was the only woman operating the equipment, Farleigh did
not seem to treat the male operators the same way. Def.'s
Stat. ¶ 25.
Berger's discrimination and harassment complaint against
March 4, 2014, PennDOT received a class grievance filed by
the AFSCME Council 13 union alleging “harassment and/or
discriminatory treatment” by Farleigh toward the
operators working under him. Def.'s Stat. ¶ 34. On
April 3, 2014, Berger called the PennDOT TipLine alleging
that Farleigh created a hostile work environment and
discriminated against her because she is a woman. Def.'s
Stat. ¶ 35. Shortly after Berger called the
TipLine-perhaps a “couple of weeks”
after-Farleigh was removed from any assignment as
Berger's foreman. Def.'s Stat. ¶ 49.
Rhodomoyer conducted PennDOT's investigation of
Berger's complaint and the class grievance against
Farleigh. Def.'s Stat. ¶ 37. The record contains a
number of witness statements dated in May 2014, which reveal
a variety of opinions regarding Farleigh's conduct; for
example, some believed he treated women unequally, while
others thought he simply had “anger issues.”
Def.'s Stat. ¶ 38. On April 10, 2014, Berger wrote a
statement describing a recent dispute she had with Farleigh
and providing additional allegations about Farleigh's
treatment of other female PennDOT employees. Def.'s Stat.
¶ 41. Also on that date, she met with Rhodomoyer and
Levchak concerning her complaints against Farleigh.
See Pl.'s Stat. ¶ 41.
27, 2014, Farleigh was informed via a “Pre-Disciplinary
Conference” memorandum that he was suspected of
inappropriate behavior and violating the harassment and
hostile work environment policy. Def.'s Stat. ¶ 43.
On June 24, 2014, Farleigh signed a “Pre-Grievance
Settlement Agreement and Release, ” in which he agreed
to serve a one-day suspension for his conduct and
“attend some form of leadership, supervisory, or
employee relations training.” Def.'s Stat. ¶
The events of June 24 and 25, 2014
24 and 25, 2014, Berger was working for foreman Terry Nasatka
on a site along Route 611 near Easton, Pennsylvania, laboring
and hauling dirt from the PennDOT work site to the designated
dump site on Hackett Hill. See Def.'s Stat.
¶ 52. On June 24, 2014, Berger hauled multiple loads of
dirt from the work site to the dump site. Def.'s Stat.
¶ 55. Berger testified that the dirt was not topsoil,
but rather consisted of “leaves, limbs, garbage, a
tire, tire-parts, a lot of debris . . . . and rocks.”
Pl.'s Stat. ¶ 55.
following day, June 25, Nasatka told Berger around 1:00 p.m.
to “go dump off and get lost.” Def.'s Stat.
¶ 56. Berger understood “dump off and get
lost” to mean that she should dump her last load of the
day but she should not return to the stockpile-the location
where she starts and ends each day-any earlier than 2:45 p.m.
Def.'s Stat. ¶ 57. Leaving the work site, Berger
drove north on Route 611 toward Lafayette Street. Def.'s
Stat. ¶ 58. Berger intended to make the next left turn
at Frost Hollow Road, which would allow her to proceed
southwest back toward the dump site, but she missed that
turn. Def.'s Stat. ¶ 59. Berger proceeded to
Frutchey Hill Road-approximately 3.5 miles north of Lafayette
Street-where she claims she turned left. Def.'s Stat.
¶ 60. In between Frost Hollow Road and Frutchey Hill
Road, Berger passed another PennDOT work site where Farleigh
was foreman. Def.'s Stat. ¶ 61. Berger lived at 480
Evergreen Road in Mount Bethel, Pennsylvania, which was north
of her work site and north of Farleigh's work site, just
off Route 611. Def.'s Stat. ¶ 62. As Berger drove by
Farleigh's work site, she thought to herself
“he's probably going to say I am taking this dirt
home, ” since she was driving in the direction of her
home, Farleigh knew where she lived, and he “was always
blaming [her] for things.” Berger Dep. 171:12-172:5,
Def.'s Mot. Ex. A, ECF No. 32-3. Farleigh contacted his
supervisor, Shawn Campanaro, and reported that at
approximately 1:30 p.m. he saw Berger driving a PennDOT
vehicle loaded with dirt northbound on Route 611. Def.'s
Stat. ¶ 63.
claims that she turned off Route 611 onto Frutchey Hill Road,
and that she proceeded to the dump site via Richmond Road and
Elizabeth Avenue. Def.'s Stat. ¶ 67. Berger did not
know the exact amount of time it takes to go from Frutchey
Hill Road to the dump site, but she would not dispute that it
would take about fifteen minutes. Def.'s Stat. ¶ 68.
Berger estimates that she spent three minutes at the dump
site. Def.'s Stat. ¶ 69. Berger claims she drove
from the dump site back to Martin's Creek, where she
reconnected with Route 611 and headed home. Def.'s Stat.
¶ 70. Berger began having stomach and bowel issues
off-and-on during her drive, and she had a
stomach-and-bowel-related accident sometime after turning
onto Frutchey Hill Road; after she visited the dump site, she
proceeded home to clean up and change clothes. Def.'s
Stat. ¶ 71.
PennDOT's investigation of Berger
receiving Farleigh's report about Berger's activities
on June 25, Campanaro sent an email to his superior, Rodney
Vanscavish, that same day, stating that Farleigh had seen
Berger drive by his work site with a load on her truck, and
that he (Farleigh) later drove by Berger's house and saw
tire tracks in her yard. See Def.'s Stat. ¶
72; Def.'s Mot. Ex. A at PENNDOT 003050, ECF No. 32-9.
Vanscavish forwarded Campanaro's email to Rhodomoyer.
Kovatis Decl. Ex. A at PENNDOT 003050. Approximately forty
minutes later, Campanaro sent Vanscavish another email,
attaching several pictures that he had taken of Berger's
driveway area and writing “[y]ou can clearly see du[al]
tire marks coming from her driveway.” See
Pl.'s Stat. ¶ 189; Pl.'s Resp. Ex. 90 at PENNDOT
003669, ECF No. 35-24. Vanscavish also forwarded this email
to Rhodomoyer. Pl.'s Resp. Ex. 90 at PENNDOT 003669.
next day, June 26, Rhodomoyer sent Vanscavish an email,
writing: “Thanks, that's not much evidence . . .
we'll get a statement from Fred [Farleigh] and try to get
a confession?” Id. That same day, Campanaro
emailed to Vanscavish a picture of Berger's house,
writing, “[h]ard to see but there is a fresh pile of
dirt and rocks behind the white building.” See
Pl.'s Stat. ¶ 191; Pl.'s Resp. Ex. 85 at PENNDOT
002860-61, ECF No. 35-23. Campanaro later testified under
oath that he saw on Berger's property two dirt piles that
had grass growing on them and two dirt piles with no grass
growing on them near a little shed, but that the two fresh
piles of dirt were not visible in the picture he took.
See Pl.'s Stat. ¶ 193.
and Levchak were responsible for investigating Farleigh's
allegations against Berger. Pl.'s Stat. ¶ 194. As
part of the investigation, Rhodomoyer reviewed Automatic
Vehicle Location (AVL) data from Berger's PennDOT
vehicle. The AVL is a location device that
“pings” a location for the vehicle, providing a
GPS location. The AVL data show that on June 25, Berger's
truck was pinged at the work site from 11:57 a.m. to 12:25
p.m.; on Route 611 from 1:31 p.m. to 1:44 p.m.; and then at
her home from 2:06 p.m. to 2:31 p.m. See Pl.'s
Resp. Def.'s Stat. ¶ 75. But the data also show that
at 1:44 p.m. she was both at her home and on Route 611-an
impossibility. See Id. There are no AVL pings for
Berger's truck at the dump site on June 25; Rhodomoyer
testified that this indicates that Berger never visited the
dump site on that date. Rhodomoyer Dep. 166:24-167:10,
Def.'s Mot. Ex. B. ECF No. 32-5. Rhodomoyer further
testified that he regarded the GPS data as the only
“clear and convincing” evidence to support a
finding of Berger's guilt, and that the rest of the
evidence “would have been circumstantial.”
Id. at 176:23-177:1.
had a problem with the AVL device on her truck sometime on
June 24 or 25, causing her radio to indicate “No
MRU” at various times. Def.'s Stat. ¶ 80.
During his investigation, Rhodomoyer learned that “No
MRU” most likely meant that the radio lacked sufficient
power, which would affect the GPS signal. See
Def.'s Stat. ¶ 81. Berger's foreman and
co-worker verified that Berger made trips to the Hackett Park
dump site on June 24-none of which appear on the AVL map
data. See Pl.'s Stat. ¶ 239. Rhodomoyer
testified that despite the “No MRU” problem, he
still believes that the GPS data provided clear and
convincing evidence of Berger's guilt “[b]ecause
absence of information is not the same thing as when the
information is-is active. So there was active GPS that
produced a timeline . . . . When the GPS was working,
it's clear and evident.” Rhodomoyer Dep. 186:4-15.
10, 2014, PennDOT held a Pre-Disciplinary Conference
concerning Berger's alleged theft. Def.'s Stat.
¶ 87. During the conference, Rhodomoyer asked Berger if
she had dumped the material before she went to her house, and
she responded “yes, anyway, I wouldn't want that
dirt it has broken bottles.” Pl.'s Stat. ¶
217. Berger was shown a picture of her property that had been
taken by Campanaro; she explained that the picture was of a
tarp covering a log splitter, not a pile of dirt. Pl.'s
Stat. ¶ 219.
second Pre-Disciplinary Conference was held on July 16.
Def.'s Stat. ¶ 88. At that hearing, Rhodomoyer told
Berger that PennDOT had evidence showing that she had dumped
a load of dirt at her home on both June 24 and 25. Pl.'s
Stat. ¶ 229. But at Rhodomoyer's deposition for this
case, he testified that he had “never concluded”
that Berger stole multiple loads of dirt. Pl.'s Stat.
August 6, 2014, Rhodomoyer emailed Sara VanderGheynst, a
PennDOT human resources official, a request for Berger's
removal along with supporting documents. Def.'s Stat.
¶ 89. The request stated that Berger “was
witnessed going to her house with Department equipment and a
load of dirt” and “was also tracked on the AVL
being at her house, at ...