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Berger v. Commonwealth

United States District Court, E.D. Pennsylvania

June 12, 2018

ALICE BERGER, Plaintiff,


          JOSEPH F. LEESON, JR. United States District Judge.

         I. Introduction

         In this 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.

         II. Background

         A. Factual Background

         The 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 non-moving party.

         i. Berger's colleagues and chain-of-command

         Berger 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.

         Berger 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. ¶ 126.

         ii. Fred Farleigh's conduct

         In 2013 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.

         iii. Berger's discrimination and harassment complaint against Farleigh

         Around 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.

         Joseph 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.

         On May 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. ¶ 44.

         iv. The events of June 24 and 25, 2014

         On June 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.

         The 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.

         Berger 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.

         v. PennDOT's investigation of Berger

         After 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.

         The 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.

         Rhodomoyer 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.

         Berger 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.

         On July 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.

         A 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. ¶ 230.

         On 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 ...

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