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McGarvey v. TE Connectivity Ltd.

United States District Court, M.D. Pennsylvania

July 26, 2018

BARBARA MCGARVEY, Plaintiff,
v.
TE CONNECTIVITY, LTD., T/D/B/A TYCO ELECTRONICS, LTD., Defendant.

          MEMORANDUM

          SYLVIA H. RAMBO, UNITED STATES DISTRICT JUDGE

         In this action, Plaintiff has brought claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §§ 951-963, the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-634 against her former employer for discrimination, hostile work environment, and retaliation. Presently before the court is Defendant's motion for summary judgment as to all claims. (Doc. 21.) For the reasons stated herein, Defendant's motion will be granted in its entirety.

         I. Background

         In considering the instant motion, the court relied on the uncontested facts, or where the facts were disputed, viewed the facts and deduced all reasonable inferences therefrom in the light most favorable to the nonmoving party.

         A. Facts

         Plaintiff Barbara McGarvey (“Plaintiff) is a fifty-three year old female who was employed by Defendant TE Connectivity (“Defendant”) and its predecessor entity between 1986 and 2015. (McGarvey Dep., p. 34-35 of 230; Dep. Ex. 1.) Defendant is a large engineering and telecommunications company that develops technology for industrial applications, transportation, medicine, energy, data communications, and home uses. (Showers Aff. at ¶¶ 1-2.) During the time period relevant to her complaint, Plaintiff was employed as a Senior Industrial Engineer. Her job functions included determining the cost of materials, engineering time, and equipment purchases for projects and preparing cost models and break-even analyses for various projects. (McGarvey Dep., p. 36-37 of 230.) Plaintiff was promoted to Senior Industrial Engineer from her previous position as a Senior Supplier Quality Engineer in 2010. (McGarvey Dep., p. 38-40 of 230; Dep. Ex. 1.) From the time of her promotion until Fall 2014, Plaintiff's direct supervisor was Andy Balthazer (“Balthazer”). (McGarvey Dep., p. 40 of 230.) In Fall 2014, James Showers (“Showers”) became Plaintiffs direct supervisor until her employment with Defendant was terminated in 2015. (Id. at 41, 53-54 of 230.) Tabatha Sultzaberger (“Sultzaberger”) is currently employed by Defendant as a technician and worked with Defendant during the time period relevant to her complaint. (Sultzaberger Dep., p. 11 of 34.) Steven “Chris” Farmer (“Farmer”) was hired by Defendant as an Industrial Engineer in March 2014. (Farmer Dep., p. 9 of 16.) Farmer was 23 years old at the time he was hired. (Id. at 10 of 16.) Both Sultzaberger and Defendant were responsible for training Farmer. (Sultzaberger Dep., p. 14 of 34.)

         In October 2010, Plaintiff suffered a fall during a hunting trip, resulting in broken ribs and spinal vertebrae that required surgeries to repair. (McGarvey Dep., p. 11 of 230.) Plaintiff requested and received six months of medical leave from Defendant while she healed from her injuries. During her leave, her position was “held open” and no temporary employee was hired to fulfil her job functions. (Id. at 43 of 230.) Plaintiff returned to work in or around April 2011. (Id.) Beginning in 2013, Plaintiff requested and was approved by Balthazer to work from home one day per week to accommodate complications related to her spinal injuries. (Id. at 107 of 230.) When Showers became Plaintiff's direct supervisor in 2014, Plaintiff asked Showers if she could continue to work from home one day per week. (Id. at 109 of 230.) Showers did not immediately respond. (Id.) Instead, Showers consulted with Defendant's Human Resources Manager, Natalie Stevens, and met jointly with Stevens and Plaintiff. (Id. at 110 of 230.) Showers and Stevens informed Plaintiff that she would be required to submit a doctor's note demonstrating the need for the accommodation and that the accommodation would be for a three-month trial basis. (Id. at 111 of 230.) Plaintiff, however, was continually allowed to work from home one day per week from 2013 until the end of her employment with Defendant, and Defendant did not, at any point, deny her request to work from home. (Id. at 111-117 of 230.) In early 2015, Plaintiff requested that Defendant provide her with a “standing desk” that could be raised and lowered, to alleviate discomfort associated with her spinal injury. (Id. at 121-122 of 230.) Showers did not immediately respond to Plaintiffs request, but again met with Stevens, who informed Plaintiff that she would need to provide a doctor's note demonstrating the need for such a desk. (Id. at 122-124 of 230.) Plaintiff provided the note and received the standing desk, although she believed that other employees had received similar desks without being required to provide a doctor's note. (Id. at 128-131 of 230.)

         In or around March 2014, Defendant hired Chris Farmer as an industrial engineer assigned to Plaintiffs “module” and under the supervision of Showers. (Farmer Dep., p. 9 of 16.) Plaintiff, a more senior engineer, was tasked with training Farmer. (McGarvey Dep., pp. 90-91 of 230.) During the training, Plaintiff stated that Farmer began rubbing his genitals on the outside of his pants. (Id. at 91-92 of 230.) Plaintiff was taken aback, but told Farmer to stop. (Id. at 92-93 of 230.) Farmer continued to rub his genitals intermittently throughout the training. (Id.) Plaintiff expressed her disgust with Farmer to Sultzaberger, who stated that Farmer had twice done the same during her training session. (Sultzaberger Dep., pp. 16-17 of 34.) Both Plaintiff and Sultzaberger complained directly to Showers, who stated that he would address the issue with Human Resources. (Id. at 17-18 of 34; McGarvey Dep., pp. 96-99 of 230.) Plaintiff testified that Farmer avoided interacting with her whenever possible after the incident. (McGarvey Dep., pp. 98-99.) Farmer, however, testified that he was unaware of any complaints filed against him by either Plaintiff or Sultzaberger. (Farmer Dep., pp. 11-12 of 16.) Showers testified that Sultzaberger alone complained about Farmer's conduct. (Showers Dep., p. 23 of 34.)

         In July 2015, Defendant began a “Reduction-in-Force” (“RIF”), mandating that 100 employees within Plaintiff's division be laid off. (Showers Dep., p. 11 of 34; Stevens Dep., p. 21 of 23.) Plaintiff was one of the individuals whose employment was terminated as a result of the RIF. Although Balthaser had input in the decision to terminate Plaintiffs employment, Showers made the final decision to do so. (Balthaser Dep., p. 15 of 21; Showers Dep., pp. 15-16 of 34.) Showers and Balthaser both testified that the predominant reason for Plaintiffs selection in the RIF was her poor work performance and a secondary reason was that Plaintiff has stated her intention to seek employment elsewhere. (Balthaser Dep., pp. 15-16 of 21; Showers Dep., pp. 11-12 of 34.) Showers stated that he based his decision on feedback from Project Managers who worked with Plaintiff. (Showers Dep., p. 18 of 34.) Showers testified that Project Managers Dave Skotek and Dave Allison had voiced concerns that Plaintiff was producing inaccurate work and was taking too much time to complete certain tasks. (Id. at 18-19 of 34.)

         B. Procedural History

         On December 29, 2015, Plaintiff filed a complaint with the United States Equal Employment Opportunity Commission (“EEOC”), which was dual-filed with the Pennsylvania Human Relations Commission (“PHRC”). (Doc. 1-2.) On or around July 5, 2016, the EEOC notified Plaintiff of her right to sue. (See Doc. 1 at ¶ 17.)

         Plaintiff filed the instant complaint on October 3, 2016. (Doc. 1.) On October 28, 2016, Defendant filed an answer to the complaint, wherein it generally denied Plaintiffs allegations of discrimination and indicated that it lacked sufficient information to admit or deny nearly all other allegations contained therein. (See generally Doc. 5.)

         After the parties engaged in discovery, Defendants filed a motion for summary judgment, a brief in support thereof, and a statement of facts on October 2, 2017. (Docs. 21-24.) In its brief, Defendant argues that they should be awarded judgment on Plaintiffs age and disability discrimination claims because Plaintiff failed to establish prima facie cases of discrimination, hostile work environment, and retaliation, and Defendant had legitimate, non-pretextual reasons for terminating her employment. (Doc. 22, pp. 6-14 of 25.) Defendant further argues that Plaintiffs claims fail because Plaintiff failed to identify record evidence demonstrating conduct directed to her because of her gender, age, or disability or a pattern or practice of gender, age, or disability discrimination by Defendant. (Id. at 14-17 of 25.) Finally, Defendant argues that Plaintiff has failed to establish a prima facie case of retaliation based on her requests for accommodations or complaints about Farmer's inappropriate conduct towards her. (Id. at 17-18 of 25.)

         On November 6, 2017, Plaintiff filed an opposition brief, a counter statement of facts, and an answer to Defendant's statement of facts. (Docs. 27, 28.) In her opposition brief, Plaintiff concedes her age discrimination claim under the ADEA. (Doc. 27, p. 1 of 9.) In addition to refuting Defendant's arguments, Plaintiff argues that this court should preclude Showers' testimony to the extent he relies on statements made by project managers Skotek and Allison because neither Skotek nor Allison were included on Defendant's Rule 26 statement. (Doc. 27, pp. 8-9 of 9; Doc. 27-15.) Defendant filed a reply brief on November 20, 2017. (Doc 30.) In its reply brief, Defendant argues that by conceding her age discrimination claim under the ADEA, she also necessarily must concede her age discrimination claim under the PHRA. Defendant further argues that Plaintiff failed to pursue her retaliation claims under Title VII, the ADA, and the PHRA, as well as her hostile work environment claims under the ADA and PHRA, and, thus, the court should construe Plaintiff's brief in opposition to concede those claims as well. Defendant also argues that Plaintiff's claims are generally based on her own subjective feelings and conjecture, which cannot be a proper basis to support her claims of discrimination and retaliation. Finally, Defendant argues that this court should consider Showers' testimony on the statements made by Skotek and Allison because Plaintiff is not prejudiced by the inclusion of Showers' reference to their statements, their statements are not being offered for the truth of the matter asserted, and because the issues raised by Plaintiff are more properly raised in a motion in limine rather than in a brief in opposition. The motion has been fully briefed and is now ripe for disposition.

         II. Legal Standard

         Summary judgment is appropriate when no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). A fact is “material” if “proof of its existence or nonexistence would affect the outcome of the lawsuit under the law applicable to the case.” Burke v. TransAm Trucking, Inc., 605 F.Supp.2d 647, 650 (M.D. Pa. 2009). An issue of material fact is genuine if “the evidence is such that a reasonable jury might return a verdict for the non-moving party.” Id. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986) (emphasis in original).

         When considering a motion for summary judgment, a court must look beyond the pleadings and into the factual record. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmoving party may not merely restate allegations made in the pleadings or rely upon factually unsupported legal conclusions. See Id. at 323-24. Instead, the nonmoving party must support each essential element of its claim with specific evidence from the record. Id. at 317. All factual doubts and reasonable inferences are to be resolved in favor of the nonmoving party. Id.

         The moving party bears the initial burden of proving that no genuine issue of material fact exists. See Id. at 323. Once this burden is met, the burden shifts to the nonmoving party to produce evidence proving the existence of every essential element to its case. Id. The nonmoving party must then “go beyond the pleadings by way of affidavits, depositions . . . or the like in order to demonstrate specific material facts which give rise to a genuine issue.” Id. at 324. In considering a motion for summary judgment, the court is not to engage in credibility determinations or the weighing of evidence. Burke, 605 F.Supp.2d at 650. “Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993).

         Defendant has moved for summary judgment, arguing that there are no genuine issues of material fact pertaining to any of Plaintiffs claims and that Defendant is entitled to judgment as a matter of law.

         III. Discussion

         Plaintiff has asserted claims for discrimination, hostile work environment, and retaliation pursuant to Title VII, the ADA, and similar state law claims under the PHRA, as well as a claim for punitive damages. Because the standards governing Plaintiffs ADA and Title VII claims are substantially similar to the standards governing Plaintiffs claims under the PHRA, the court will analyze them collectively. See Meyer v. Callery Conway Mars HV, Inc., No. 13-cv-109, 2015 WL 65135, *5 (W.D. Pa. Jan. 5, 2015) (“The Pennsylvania courts ordinarily construe the provisions of the PHRA to be coterminous with their federal counterparts.”); see also Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996) (treating PHRA and ADA claims coextensively); Burton v. Heckmann Water Res., No. 13-cv-0880, 2015 WL 1427971, *8 n.3 (M.D. Pa. Mar. 27, 2015) (analyzing PHRA and Title VII claims collectively) (citation omitted)).

         As noted in Plaintiff's brief in opposition to Defendant's motion for summary judgment, Plaintiff is no longer pursuing her claims under the ADEA. (See Doc. 27, p. 1.) Furthermore, because Plaintiff fails to address any arguments related to her age-related PHRA claims, the Court presumes that she no longer intends to pursue any age-related claims under either the ADEA or the PHRA. Defendant argues that Plaintiff has additionally waived her claims for her hostile work environment claims under Title VII for failure to raise arguments regarding that claim in her brief in opposition to summary judgment. Because Plaintiff did not expressly decline to proceed on that claim and sufficient evidence exists for the court to dispose of the claim on the merits, the court will address all of Plaintiff's Title VII and ADA claims herein.

         A. Burden-Shifting Framework

         Title VII, ADA, and PHRA claims are analyzed according to the burden-shifting framework set forth by our Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Wilson v. Mobilex USA Inc., 406 Fed.Appx. 625, 626 (3d Cir. 2011). “Under McDonnell Douglas, a plaintiff must shoulder the initial burden of making out a prima facie case of discrimination. If the plaintiff does so, the burden shifts to the defendant to articulate a legitimate, non- discriminatory reason for the employment action. Once the defendant does so, the presumption of discriminatory action is rebutted and the plaintiff must prove that the defendant's stated reasons are a pretext for unlawful discrimination.” Id. at 626-27, citing McDonnell Douglas, 411 U.S. at 802-04. A plaintiff may demonstrate pretext by submitting evidence that would allow a factfinder to disbelieve the employer's justification or to conclude that an invidious discriminatory reason was more likely than not a “but for” cause of the employment action. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). To accomplish this, a plaintiff must show that a defendant's reasons are so weak, incoherent, implausible, or inconsistent that they lack credibility. Id. at 765. A plaintiffs rebuttal evidence must allow a reasonable factfinder to conclude, by a preponderance of the evidence, that unlawful discrimination was the “but for” cause of the adverse employment action. Abels v. DISH Network Serv. LLC, 507 Fed.Appx. 179, 183 (3d Cir. 2012) (citing Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 177-78 (2009)).

         B. Plaintiffs ADA Claims

         Plaintiffs Complaint raises claims under the ADA for disability discrimination, harassment, and retaliation. Although distinct elements exist for a prima facie showing of each of these three causes of action, Defendant's motion for summary judgment focuses on the same element of each claim: whether there is a causal link between Plaintiffs disability and the actions taken by Defendant. Accordingly, in disposing of this motion, the court will direct its analysis towards that common element and will assume without deciding that Plaintiff has met her burden to demonstrate the remaining elements of her claims under the ADA.

         In order to establish a prima facie case of discrimination based on disability under the ADA, a plaintiff must demonstrate that she (1) had a disability as defined by the ADA; (2) was a qualified individual;[1] and (3) suffered an adverse employment action because of her disability. Turner v. Hershey Chocolate U.S.A.,440 F.3d 604, 611 (3d Cir. 2006). To establish a prima facie case of retaliation under the ADA, a plaintiff must show that: (1) she engaged in a protected employee activity; (2) she suffered an adverse employment action either after or contemporaneous with the protected activity; and (3) that the protected activity and adverse action are causally connected. See Williams v. Philadelphia Hous. Auth. Police Dep't,380 F.3d 751, 759 (3d Cir. 2004). To establish a hostile work environment claim under the ADA, a plaintiff must show that: (1) she is a “qualified individual” with a disability; (2) she was subjected to unwelcome harassment because of her disability or request for an accommodation; (3) the harassment was sufficiently severe or pervasive to alter the conditions of her employment; and ...


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