SAWA v. RDG-GCS JOINT VENTURE III et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 7/14/17. 7/14/17 ENTERED AND COPIES E-MAILED.(kw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
GEMMA SAWA, et al.
RDG-GCS JOINT VENTURES III, et al.
MEMORANDUM RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
July 14, 2017
In this employment discrimination and retaliation action, Defendants RDG-CGS Joint
Ventures III (“RDG”) and Walter Paul Kelley (“Kelley,” and collectively, “Defendants”) move
for summary judgment on Plaintiffs Gemma Sawa (“Gemma”) and Jacqueline Sawa’s
(“Jacqueline,” and collectively, “Plaintiffs”) sexual harassment and retaliation claims, alleging:
(1) Sexual Harassment of both Plaintiffs, in violation of Title VII of the Civil Rights Act
of 1964, § 703, 42 U.S.C.A. § 2000e–2 (“Title VII”);
(2) Retaliation against both Plaintiffs, in violation of the Americans with Disabilities Act,
42 U.S.C. § 12101, et seq. (“ADA”);
(3) Retaliation against both Plaintiffs, in violation of the Family and Medical Leave Act,
29 U.S.C. § 2611, et seq., (“FMLA”); and
(4) Retaliation against both Plaintiffs, in violation of the Pennsylvania Human Relations
Act, 43 P.S. § 951, et seq., (“PHRA”); and
(5) “wrongful termination” of Jacqueline only, in “violation of Pennsylvania public
(ECF 1, Complaint, “Compl.” ¶¶ 50-71). Plaintiffs, who are sisters, were employees of RDG
before they were each terminated for allegedly egregiously violating RDG’s computer use policy
by spending a significant portion of on-the-clock time completing coursework at the URL
“Walden.edu,” an online educational platform for attaining collegiate and post-collegiate
degrees. Plaintiffs contend that Defendants subjected them to a hostile work environment and
sexual harassment, and that their termination was either in retaliation for complaining about the
sexual harassment, or, alternatively, in retaliation for their use of authorized medical leave time.
Defendants seek summary judgment on the ground that Plaintiffs have failed to make out a
prima facie case for any of their claims, and that even assuming, arguendo, they had established
prima facie evidence of their claims, they have failed to show that Defendants’ proffered reasons
for Plaintiffs’ terminations are pretextual.
For the reasons discussed below, Defendants’ motion will be GRANTED in its entirety.
The following is a fair account of the factual assertions at issue in this case, as taken
from, inter alia, RDG’s Statement of Undisputed Facts, and not genuinely disputed by Plaintiff.
(See ECF 47-1, “DSOF”; ECF 49-3, Plaintiffs’ Response to Defendants’ Statement of
Undisputed Material Facts, “Pls.’ Resp. DSOF”).
A. General Facts of Plaintiffs’ Employment
RDG is under contract to the U.S. Department of Homeland Security (“DHS”), Federal
Protective Service (“FPS”), and manages and operates DHS’s emergency management and
emergency communications program charged with maintaining a safe and secure environment
for federal employees, contractors and visitors at federal facilities. (Defs.’ Mot., Ex. 3,
Declaration of Sheila McCombs, “McCombs Decl.,” ¶ 5; DSOF ¶ 3). RDG’s operations include
dispatch and alarm monitoring, radio and telephone communications, information technology
services, coordination and support of law enforcement, fire and other emergencies, and
emergency response and medical communications. (DSOF ¶ 6).
RDG operates on a nationwide basis, twenty-four hours per day, seven days per week, at
four sites known as MegaCenters, one of which is located in Philadelphia, Pennsylvania. (Id. ¶¶
6-7). In March 2013, the Philadelphia MegaCenter (“PMC”) was awarded a new federal
government contract, RDG, and both Plaintiffs thereafter became RDG employees. (Id. ¶¶ 910).
Each Plaintiff’s title at RDG was, for a time, “Alarm Monitor/Telecommunicator
(Dispatcher),” which involved “protect[ing] federal facilities, from any crime that was
committed, on behalf of the government dispatching services where required, and coordinating
emergency services and communications.” (Id. ¶¶ 11-13). Their responsibilities included
“coordination of inter-agency communications in cases where FPS is tasked with working with
state and local emergency service agencies.” (Id. ¶¶ 12).
During the course of her employment, Jacqueline was promoted to “Telecommunications
(Dispatch) Supervisor,” which involved “supervis[ing] 7-8 employees who were taking
emergency response calls, monitoring alarms and dispatching and acting as lead to the other
employees.” (Id. ¶¶ 15-16).
Incident to their employment at RDG, Plaintiffs received copies of RDG’s employee
handbook, which details, inter alia, its computer use, anti-discrimination, anti-harassment, and
anti-retaliation policies, as well as the DHS handbook, which also details a computer use policy.
(Id. ¶¶ 17-18). Both Gemma and Jacqueline read these policies and understood that, pursuant to
them, only limited personal use of RDG computers was permitted. (Id. ¶ 18-20, ¶ 90; see Defs.’
Mot., Ex. 10, DHS Handbook, at 36 (“I understand that I can only use Government systems for
official Internet activities and email, with limited personal use allowed.”) (emphasis added)).
The record reflects that when RDG employees had “down time”—i.e., they were not
answering the phones or responding to alarms—they were permitted to, and did, engage in
activities such as reading books and magazines, playing computer games, and watching TV.
(See ECF 49-4, Plaintiffs’ Statement of Facts of Record, “PSOF,” ¶ 57). As far as internet use
was concerned, RDG also tolerated employees’ use of the internet to “check a score on ESPN”
or “look up online menus to order foods, stuff of that nature.” (Defs.’ Reply, Ex. 1, Deposition of
Walter Paul Kelley, “Kelley Dep.,” at 38-39).
The undisputed record evidence shows that taking online courses (and completing tests,
assignments, and quizzes associated with that course), however, exceeded the permissible
“limited” use of the internet at RDG. (DSOF ¶ 90; Pls.’ Resp. DSO F¶ 90) (admitting that
“taking online courses and completing coursework during work hours, on RDG computers,
might be a violation of the write policy,” yet maintain that “the rule was not enforced.”). This is
because completing coursework is, by nature, more distracting than the other types of “down
time” activities. (Id.). Specifically,
“when you’re taking tests . . . . it’s set to time-out after a certain
amount of time. So if you just don’t answer questions, you just get
marked wrong on those questions and the test will end. So you
have to pay attention to the test when you’re doing it. And if the
phone’s ringing and you’re trying to pay attention to a test, then
usually you might miss the time period and pay more attention to
the program. If you’re reading a book and the phone rings, you put
it down and start up again. That’s the difference.”
(PSOF ¶¶ 58-60; Kelley Dep. at 50, 52). There is no evidence in the record that suggests that
Walden.edu—the online course website that Plaintiffs used in this case—did not have this type
of “time-out” functionality.
B. FMLA Leave
During the course of their employment, both Plaintiffs applied for and took FMLA leave
on several occasions. (DSOF ¶ 21). Gemma first applied for intermittent FMLA leave in
October 2012 due to a serious illness, which was granted. (Id. ¶ 22) Gemma’s FMLA leave was
recertified twice during the course of her employment—on October 29, 2013, and again on
February 28, 2014—and she was never denied any leave she requested. (DSOF ¶¶ 21-27). The
last day on which Gemma exercised her FMLA leave was May 28, 2014, due to dizziness caused
by “a flare-up of Hashimoto’s—a disability.” 1 (DSOF ¶¶ 26; PSOF ¶ 26).
Jacqueline also applied for, and was granted, intermittent FMLA leave, in her case in
order to care for her mother. (DSOF ¶ 28). Jacqueline, like Gemma, was never denied any leave
she requested. The last days on which Jacqueline exercised her FMLA leave were July 19 and
20, 2014. 2 (DSOF ¶ 30).
C. Cyber-Stalking Complaints and Initial Investigation
i. 2013 Cyber-Stalking Activity
The record evidence, summarized below, provides a detailed account of the highlyunusual cyber-stalking situation that began to unfold at RDG in 2013.
In early 2013, Michael Berardis, an RDG employee with the title of Shift Supervisor
(“Berardis”), started receiving unwanted anonymous emails and texts, some of which were
sexual in nature. Over the next few months, the texts increased and the sender of the texts would
show Berardis that he or she was able to access his online bank and tax accounts and find his
passwords. (DSOF ¶ 33).
Gemma also used her FMLA leave on November 28, 2012, January 23, 2013, January 24,
2013, February 7, 2013, February 20, 2013, March 2, 2013, March 21, 2013, April 9, 2013, May
6, 2013, May 29, 2013, June 3, 2013, June 4, 2013, August 3, 2013, August 7, 2013, August 16,
2013, August 17, 2013, August 30, 2013, September 5, 2013, September 10, 2013, September
14, 2013, October 7, 2013, October 21, 2013, November 18, 2013, November 19, 2013,
December 3, 2013, December 7, 2013, December 16, 2013, December 21, 2013, December 30,
2013, January 3, 2014, January 23, 2014, January 26, 2014, February 1, 2014, March 5, 2014,
March 19, 2014, March 24, 2014, March 25, 2014, April 8, 2014, April 21, 2014, and April 25,
2014 (Def. Mot., Ex. 13 at 46-86).
Jacqueline also used her FMLA leave on March 30, 2013, May 22, 2013, December 23,
2013, May 19, 2014, June 2, 2014, July 19, 2014, and July 20, 2014 (Id., Ex. 15 at 89-99; DSOF
In May 2013, Plaintiffs and another RDG employee named Jennifer Jackson also started
receiving anonymous, graphic messages to their personal electronic devices, including sexual
comments and comments relating to their workplace and people that they knew. 3 (DSOF ¶ 34).
In July 2013, Jackson, on behalf of herself, Berardis, and Plaintiffs made a “collective
report” to Sheila McCombs, the Director of Contract Administration and Human Resources
(“McCombs”), and to Walter Paul Kelley, the Contract Manager at the PMC, who also served as
Plaintiffs’ supervisor (“Kelley”). (DSOF ¶ 35). McCombs advised that she would conduct an
Gemma expressed concern that her complaints about the cyber-stalking situation were
being discounted by RDG because, in response to complaints to Kelley made in the Spring of
2013, Kelley called Plaintiffs, Jackson, and Berardis “babies,” and Jackson told Gemma that
Kelley was “getting pretty mad” about their complaints and “didn’t want to hear about it
anymore at work.” (DSOF ¶ 70; Defs.’ Mot., Ex. 4, Deposition of Gemma Sawa, “Gemma
Dep.,” at 109-110).
At some point, Colonel John F. McClay (“McClay”)—who was not an employee of
RDG—was informed by RDG about the cyber-stalking situation because of his role as Law
Enforcement Program Manager for the DHS at the PMC. On July 15, 2013, McClay sent an
email to all PMC staff, explaining that several employees were receiving harassing messages,
and that based on the type of information being released it is apparent that there is an internal
source feeding information to this individual/s.” (DSOF ¶ 36; Defs.’ Mot., Ex. 17). He
explained that he had “deferred the matter to the [FPS] Criminal Investigation Branch and to the
Additionally, McClay and Trooper Sembler were minor targets of the cyber-stalking.
(DSOF ¶¶ 53-55)
ICE Forensic Unit to investigate,” and invited any employees to contact either him or Kelley
with any information regarding the cyber-stalking situation. (DSOF ¶¶ 37-38).
On July 16, 2013, McClay forwarded emails that Berardis had received to, among others,
George Rossner, the Network Engineer and Information Systems Security Officers for RDG
(“Rossner”), for the recipients to investigate. (DSOF ¶ 40; Defs.’ Mot., Ex. 18).
Also that day, Jacqueline received a forwarded version of an email, signed by Rossner,
which was originally drafted to send to DHS’s Joint Intake Center, and was intended to serve as
the “official statement” and summary of the cyber-stalking situation. (DSOF ¶ 41-42; Defs.’
Mot., Ex. 19). In the statement, Rossner states that “not only are these happenings a concern to
the victims themselves, but also [for] . . . the loss of confidentiality when it comes to the
everyday SBU/LES/PII information we handle as an operation on an everyday basis.” (Id.). In a
subsequent email to McClay and others, Rossner explained that he included this and other detail
in the statement to “demonstrate urgency” and to “bring about a prioritized investigation by this
On July 18, 2013, McClay sent an email to all PMC employees explaining that all
pertinent information regarding the cyber-stalking situation had been forwarded to DHS for
investigation, and instructing that electronic devices “are not to be directly or indirectly
connected to any PMC computer[.]” (DSOF ¶ 44; Defs.’ Mot., Ex. 20).
On August 1, 2013, Plaintiffs, Berardis and Jackson also reported the cyber-stalking
activity to the New Jersey State Police (“NJSP”), and between August 1, 2013 and September
30, 2013, the NJSP—while coordinating with McClay—conducted a thorough investigation of
the situation. (DSOF ¶¶ 49-51). The investigation entailed, inter alia, numerous interviews,
service of multiple subpoenas on internet and email providers, forensic review of computers and
other electronic devices, surveillance and background research on suspects, and executing a
search warrant. (Id.).
Because McClay was coordinating with the NJSP, McClay—rather than RDG
personnel—became Gemma’s point of contact as to the progress of the investigation. (Id. ¶ 52).
Gemma contends that when she spoke with someone at the NJSP on the phone during this
investigation, they “weren’t very nice” to her. (Gemma Dep. at 109)
By mid-August 2013, McClay had also become a target of the cyber-stalking, and on
September 10, 2013, Gemma reported to McClay that she had received a photograph of him with
his wife from the unknown stalker. (DSOF ¶¶ 54, 56).
On September 12, 2013, McClay emailed Plaintiffs, cc’ing Kelley, indicating that the
investigation was ongoing, and instructing them to (1) cease discussing the cyber-stalking
situation in the workplace, and (2) avoid “finger pointing” regarding the identity of the cyberstalker. (Id. ¶ 57; Defs.’ Mot., Ex. 23).
On September 13, 2013, in the course of its investigation, the NJSP executed a search
warrant on the home of Joseph Mandi, an RDG employee (“Mandi”), who had become a suspect
in the New Jersey Police’s investigation. Mr. Mandi was terminated from RDG, though he was
ultimately not identified as the stalker. (DSOF ¶¶ 58, 60).
ii. 2014 Cyber-Stalking Activity
After Mandi’s termination, from December 7, 2013 until at least March 2014, the cyberstalking temporarily ceased. (DSOF ¶¶ 60, 61). When it resumed in, at the earliest, March 2014,
the targeted individuals were, once again, Plaintiffs, Berardis and Jackson. All targeted
employees again complained to McCombs and Steven Schrimpf, the Director of Security at RDG
(“Schrimpf”). (Id. ¶¶ 62-63).
This time around, Schrimpf conducted an internal investigation into the cyber-stalking
situation, which included conducting interviews with Plaintiffs, Berardis, and Jackson about the
messages they were receiving. (Id. ¶ 64). Schrimpf compiled the information he learned from
the interviews into a summary, which he circulated to McCombs and Albert Gonzales, the
President of Gonzales Consulting Services, and Member of RDG (“Gonzales”), on May 19,
2014. (Defs.’ Mot., Ex. 24). The May 19, 2014 summary indicated that Gemma was “convinced
by the number and content of the text messages [sent by the stalker] that [Berardis] is the
primary impetus for all of the harassing messages.” (Id., DSOF ¶ 67). Accordingly, Schrimpf’s
summary concluded that “[Berardis] appears to be the nexus to all of these events, as the
majority of texts are sexually motivated towards him.” (DSOF ¶ 68).
At the end of the summary, Schrimpf made certain recommendations, including, inter
alia, that (1) RDG should “coordinate with the assigned FPS Investigator and relay information
obtained through employee interviews;” (2) “further investigation and interviews should be
conducted with Dana Scott and K. Mustafaa,” since Gemma told Schrimpf that she suspected
them of the cyber-stalking conduct; (3) RDG should “coordinate safety escorts for affected
employees;” (4) RDG should “[ensure Kelley] is fully aware of the scope of the complaints[;]”
and (5) RDG should “coordinate contact with the NJ law enforcement agency investigating the
Mandi case[.]” (Id. ¶ 68; Defs.’ Mot., Ex. 24).
On May 20, 2014, the day after Schrimpf sent his summary, Schrimpf emailed Plaintiffs,
Jackson and Berardis stating that Kelley was aware of all the complaints and concerns regarding
the cyber-stalking situation, and instructing them to report any further incidents to their “on-site
supervisor or [Kelley].” He indicated that they would “let [them] know when FPS completes
their investigation into the matter and what the resolution is.” (Id. ¶ 69; Defs.’ Mot., Ex. 25).
D. Gemma’s May 9, 2014 Altercation
On May 9, 2014, Gemma got into an altercation with Khajeefah Mustafaa, another RDG
employee/dispatcher (“Mustafaa”), while at work. (DSOF ¶ 72). Essentially, the telephone rang,
Mustafaa said to Gemma, “Don’t you answer the phone anymore,” and an argument escalated
from there over who would answer the phone. (Id.). During the argument and in its aftermath,
both women accused each other of doing homework online while at work. (Id. ¶ 77). Gemma
admitted that if she had had an internet browser open when the phone rang and did not answer it,
“that would be reason [for Mustafaa] to be ticked off.” (Id. ¶ 76; Gemma Dep. at 144). She
further admits that doing homework requires concentration and can, in some instances, be
distracting from work. (DSOF ¶ 78; Gemma Dep. 149-150). During the course of the argument,
Mustafaa also asked Gemma, “Don’t you come to work anymore?[,]” which Gemma believes
“thr[ew] her FMLA out on the dispatch floor.” (DSOF ¶ 74).
After the altercation, Kevin Kline, the dispatch supervisor (“Kline”), issued a “Corrective
Action Notice” to (1) Gemma, based on Berardis’ first-hand account of the incident, (DSOF ¶
72; Defs.’ Mot., Ex. 26), and (2) Mustafaa, based on Mustafaa’s own description of the incident.
(Id. ¶ 73). While Gemma believes that Mustafaa’s comment about coming to work had “thrown
her FMLA out on the dispatch floor,” (id. ¶ 74), Gemma concedes that Mustafaa, who was not
her supervisor, did not have any authority to affect the terms of her employment, and her
comment had no bearing on whether or not she was permitted to take FMLA leave. (Id. ¶ 75).
Also after the altercation, RDG separated the women’s workspaces, by temporarily
moving Gemma to Region 2, and keeping Mustafaa in Region 3. (Id. ¶ 79). According to RDG,
the decision to move Gemma, rather than Mustafaa, was due to Mustafaa’s seniority, but Gemma
thought that it was not fair to move her rather than Mustafaa because Gemma considered Region
3 “home base” and because she believed Mustafaa had been the bad actor in the altercation. (Id.
¶ 80; Gemma Dep. at 158-160).
On May 12, 2014, Kelley sent an email to all PMC employees instructing that “[d]ue to
recent incidents . . . no dispatcher shall be working on homework during work hours. A
violation of this policy could result in suspension and or termination. It is unfortunate that these
policies had to be put into place by the abuse of the few.” (Id. ¶ 81; Defs.’ Mot., Ex. 29). 4
On May 14, 2014, Gemma emailed Kelley requesting to be moved back to Region 3,
because “it is unjust that [her] work assignment [has] been altered as a result of the
confrontation,” given that “[Mustafaa] attacked [her] and [she] feel[s] as though [she is] being
unfairly punished[.]” (Id. ¶ 82; Defs.’ Mot., Ex. 30).
That day, Kelley responded that Gemma would remain in Region 2 “until such time as a
complete investigation can be conducted.” He continued, “[t]here is also the allegation of
working on school work on a government computer and that is a government violation.
[McClay] will need to be involved and he is currently on vacation. Once this is all complete a
determination will be finalized.” (DSOF ¶ 83; Defs.’ Mot., Ex. 30).
Gemma subsequently emailed McCombs to complain about the way Kelley was handling
the altercation between her and Mustafaa. (DSOF ¶ 84, Defs.’ Mot., Ex. 31). She closed the
email by saying, “I just want you to know how grateful I am that you are taking things
seriously.” (DSOF ¶ 85). On May 15, 2014, Gemma emailed McCombs again, in which she
Given this email was sent three days after the altercation between Gemma and Mustafaa,
it is presumable that it was sent in connection with their respective accusations about the use of
the internet to complete homework during work time. The record does not indicate, however,
whether the email was sent as a result of these accusations, or whether, by May 12, 2014, RDG
had pulled and reviewed Gemma’s internet browser history and seen that she had spent a
significant amount of work time completing homework. In any event, the distinction is
restated her dissatisfaction with the way Kelley was handling the altercation and subsequent
move to Region 2. Gemma said “[t]he appropriate thing to do would have been to make us both
take turns working in different regions.” (Id. ¶ 84; Defs.’ Mot, Ex. 31).
E. RDG’s Discovery of Gemma’s Violations of the Computer Use Policy
Sometime after the altercation between Gemma and Mustafaa, Kelley instructed Rossner
to pull the internet histories for Gemma and Mustafaa for May 9, 2014, the date of the
altercation. (Id. ¶ 86). Upon review, it appeared that Gemma had logged in for two hours to
complete online coursework at Walden.edu that day, while Mustafaa had not logged in at all.
(Id. ¶ 87, Def.’s Mot., Ex. 28). Kelley subsequently asked Rossner to pull each of their internet
browsing histories for the past year, which again revealed that Gemma had been frequently
completing homework and taking tests while on duty, and Mustafaa had not. (Id.). Gemma’s
browser history revealed that, between March 16, 2014 and May 9, 2014, she had spent 41.08
hours logged into Waldenu.edu while at work. (DSOF ¶ 88).
On June 3, 2014, Kelley submitted a Recommendation for Termination of Gemma to
Rudy Garcia, President of RDG (“Garcia”), and Gonzales, who decided to terminate her that day.
(DSOF ¶ 91, Def.’s Mot., Ex. 28).
F. RDG’s Discovery of Jacqueline’s Violations of the Computer Use Policy
Notwithstanding the incidents related to Gemma altercation with Mustafaa, RDG
continued its ongoing investigation into the cyber-stalking situation, as indicated in Schrimpf’s
May 19, 2014 summary.
On June 11, 2014, Schrimpf emailed Plaintiffs, Jackson and Berardis to update them on
the “status of what is occurring regarding your complaints/concerns[,]” namely, that “FPS has
taken over this inquiry into what had been occurring, and “[t]o avoid duplicating efforts or
interfering with their investigation, we have essentially suspended any further internal query into
this matter.” (DSOF ¶ 94; Defs.’ Mot., Ex. 33). He advised that “FPS is speaking with different
persons, gathering evidence, and trying to draw some conclusions as to who may be
responsible.” He added that, in the meantime, they should “continue to directly notify
[McCombs and Schrimpf] of any further concerns you may have or addition events that occur.”
On June 18, 2014, Schrimpf circulated an email to Gonzales, McCombs and Garcia,
providing an update on the investigation. (DSOF ¶ 95; Def.’s Mot, Ex. 34). He stated that,
because they caught Gemma “in a few lies” and because “one of the messages from last year
originated from Gemma’s neighbor’s IP address,” the “NJSP Investigator feels that Gemma may
be responsible for this entire series of events and that is where their investigation is starting to
Sometime in June 2014, Agent Anthony Fuscellaro, a special agent with FPS
(“Fuscellaro”), requested to review the internet browser histories from all employees
complaining of cyber-stalking; namely Plaintiffs, Jackson and Berardis. (DSOF ¶ 96). Based on
that review, on July 1, 2014, an FSP officer advised RDG’s President Garcia that “[o]n June 30,
2014, it was brought to [his] attention by [McClay] that. . . Jacqueline Sawa . . . had been
completing on-line college courses on a Government computer during work hours.” (DSOF ¶
96, Ex. 36). The FPS officer requested that RDG immediately address the problem because such
activities were routinely occurring and it was the “third such instance over the past year and a
half in which an RDG employee engaged in activities during work hours.” (DSOF ¶ 98).
Jacqueline’s browser history revealed that she had spent 26.5 hours completing online college
courses during working time. (Id. ¶¶ 97, 100). RDG had to refund Jacqueline’s salary for this
time to FPS, but Jacqueline never had to refund her wages earned for this time to RDG. (Id. ¶
On July 24, 2014, Jacqueline was suspended. (Id. ¶ 99). On July 30, 2014, she was
terminated from RDG, pursuant to a Recommendation for Termination submitted by Kelley to
Garcia and Gonzales. (Id. ¶ 101).
McCombs told Jacqueline that the reason she was being terminated was because she had
spent time doing online educational coursework during work hours. (Id. ¶ 102).
Plaintiffs were not the first RDG employees to be terminated for completing coursework
online during work time. On March 20, 2013, Ms. Terry Woods-Phillips, an RDG employee
who worked in data entry, was terminated for completing coursework for Kaplan University
during work hours. (Id. ¶ 103, Defs.’ Mot., Ex. 38).
On December 11, 2015, Gemma filed a Complaint against Defendants (ECF 1) alleging:
(1) Sexual Harassment, in violation of Title VII 5
(2) Retaliation, in violation of the ADA
(3) Retaliation, in violation of the FMLA
(4) Retaliation, in violation of the PHRA
That same day, Jacqueline filed an almost identical complaint, except it contained one
additional Count of “wrongful termination,” in “violation of Pennsylvania public policy.”
(Defs.’ Mot., Ex. 2, ¶ 70-78). On February 2, 2016, Defendants filed Answers to each
Complaint. (ECF 5; 15-cv-6586, Dkt. No. 6). On July 18, 2016, the Court granted the parties’
joint motions to consolidate the two cases and extend deadlines. (ECF 22).
Despite some initial confusion (see Defs.’ Mot. at 10 n.1; Pls.’ Opp’n at 8 n.3), Plaintiffs
confirmed at Oral Argument that it was not pursuing a claim for gender discrimination.
On March 24, 2017, Defendants filed a motion for summary judgment (ECF 47, “Defs.’
Mot.”), to which Plaintiff responded on May 5, 2017 (ECF 49, “Pls.’ Opp’n”), and Defendants
filed a Reply on May 12, 2017 (ECF 51). On May 19, 2017, Plaintiff moved for leave to file a
Surreply, and attached a proposed Surreply (ECF 53), to which Defendants’ filed an objection on
May 22, 2017 (ECF 55). 6
Oral argument was held on June 6, 2017 regarding the pending summary judgment
motion. (ECF 56, “Oral Argument”).
A district court should grant a motion for summary judgment if the movant can show
“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). A dispute is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” if it “might affect the outcome of
the suit under the governing law.” Id.
A party seeking summary judgment always bears the initial responsibility for informing
the district court of the basis for its motion and identifying those portions of the record that it
believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular
issue at trial, the moving party's initial burden can be met simply by “pointing out to the district
court . . . that there is an absence of evidence to support the nonmoving party's case.” Id. at 325.
After the moving party has met its initial burden, the adverse party's response must, “by citing to
particular parts of materials in the record” set out specific facts showing a genuine issue for trial.
Plaintiff’s motion to file a Surreply will be GRANTED, and Plaintiffs’ proposed Surreply
was considered for purposes of the instant memorandum and corresponding Order.
Fed. R. Civ. P. 56(c)(1)(A). “Speculation and conclusory allegations do not satisfy [the nonmoving party’s] duty.” Ridgewood Bd. of Educ. V. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d
Cir. 1999) (superseded by statute on other grounds as recognized by P.P. v. West Chester Area
Sch. Dist., 585 F.3d 727, 730 (3d Cir. 2009)). Summary judgment is appropriate if the nonmoving party fails to rebut by making a factual showing “that a genuine issue of material fact
exists and that a reasonable factfinder could rule in its favor.” Id. Under Rule 56, the Court
must view the evidence presented on the motion in the light most favorable to the opposing
party. Anderson, 477 U.S. at 255.
A. Both Plaintiffs’ Title VII Sexual Harassment/Hostile Work Environment
In Count One of their complaints, Plaintiffs respectively allege that sexual harassment at
RDG created a hostile work environment for Plaintiffs, in violation of Title VII.
Under Title VII, an employer may not “discharge . . . or . . . discriminate against any
individual with respect to . . . compensation, terms, conditions, or privileges of employment
because of such individual’s . . . sex [.]” 42 U.S.C. § 2000e-2(a)(1). “A plaintiff may further
establish that an employer violated Title VII by proving that sexual harassment created a hostile
work environment.” Huston v. Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir.
2009); see also Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986) (The term
“sexual harassment” embodies both quid pro quo harassment as well as claims for a hostile work
environment.). To prove a hostile work environment claim against an employer, a plaintiff must
prove the following elements:
(1) the employee suffered intentional discrimination because of their sex;
(2) the discrimination was pervasive and regular;
(3) the discrimination detrimentally affected the plaintiff;
(4) the discrimination would detrimentally affect a reasonable person of the same sex in
that position; and
(5) the existence of respondeat superior liability.
See Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir. 1999). 7 For purposes of the
instant motion, Defendants dispute Plaintiffs’ ability to prove only the first and fifth elements of
the test. (Defs.’ Mot. at 10 n.2)
i. Discrimination because of Sex
Title VII does not prohibit all verbal or physical harassment in the workplace; rather, it is
directed only at “discriminat[ion] . . . because of... sex.” Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, 81 (1998). “The critical issue, Title VII’s text indicates, is whether
members of one sex are exposed to disadvantageous terms or conditions of employment to which
members of the other sex are not exposed.” Id. at 80 (quoting Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993) (Ginsburg, J., concurring)). “The intent to discriminate on the basis of
sex in cases involving sexual propositions, innuendo, pornographic materials, or sexual
derogatory language is implicit, and thus should be recognized as a matter of course. A more
fact intensive analysis will be necessary where the actions are not sexual by their very nature.”
Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 n.3 (3d Cir. 1990).
Defendants contend that Plaintiffs, as a matter of law, cannot prove that they were subject
to harassment because of their sex—i.e. because they are females—because Berardis, a male,
was also a target (indeed, the prime target) of the harassment, and was sent messages which were
Unlike Plaintiffs’ other claims, hostile work environment claims are not subject to burden
shifting under the familiar McDonnell-Douglas framework. See, e.g., Ogilvie v. N. Valley EMS,
Inc., 07-cv-485, 2008 WL 4761717, at *7 (E.D. Pa. Oct. 29, 2008) (explaining that the Third
Circuit has “strongly suggested” that McDonnell Douglas does not apply to hostile work
environment claims). Accordingly, the Court must determine only whether Plaintiffs have
presented sufficient evidence to create a dispute of material fact in order to avoid summary
equally sexual in nature. (Defs.’ Mot. at 11). Similarly, they point to some additional evidence
in the record that McClay and Trooper Sembler, both male, were also recipients of harassing
messages. (Id. at 11-12).
Plaintiffs, by contrast, argue that because the harassing messages they were sent were
“sexual by their very nature,” that is enough to prove that they were sent because of their sex,
notwithstanding the fact that similar messages were also sent to members of the opposite sex.
(Pls.’ Opp’n at 9). They further argue that Defendants cannot insulate themselves from liability
on the basis that the harassment was not “because of” Plaintiffs’ female sex because the
harassment was also directed towards male employees.
Here, because of the sexually explicit nature of the messages sent by the harasser, it is
clear that Plaintiffs were being harassed because they are females, notwithstanding the fact that
Berardis may also have been harassed because he is male. Many of the messages directed at
Plaintiffs reference their female genitalia, or their participation in heterosexual intercourse. (See
PSOF ¶ 14). The fact that other messages, obviously directed at Berardis, were also sexual in
nature does not negate the reason for the harassment of Plaintiffs. In fact, it is not clear based on
the messages that the same individual was sending messages to both Plaintiffs and Berardis
because the harasser indicated his/her own gender in the texts, which is even more suggestive of
the fact that the harassment was based on gender. (Id.).
In their brief, Plaintiffs point to two instructive cases in sister Circuits where the courts
rejected arguments that alleged harassment could was not legally viable because the plaintiffs
were female because similar conduct was directed towards men. In Steiner v. Showboat
Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994), the Court held that “the district court erred in
endorsing [the defendant’s] argument that [the harasser’s] conduct was not sexual harassment
because he consistently abused men and women alike.” While the Court held that the
harassment was, in fact, different in nature, it went on to say that, even assuming the harasser
“used sexual epithets equal in intensity and in an equally degrading manner against male
employees, he cannot thereby ‘cure’ his conduct toward women.” Id. at 1464. Accordingly, the
Court continued, “we do not rule out the possibility that both men and women working at
[Defendant’s company] have viable claims against [the harasser] for sexual harassment.” Id.
In McDonnell v. Cisneros, the Seventh Circuit similarly cast doubt on any bright-line
rejection of sexual harassment claims where the harassment was directed at both male and
female employees. 84 F.3d 256, 260 (7th Cir. 1996) (“It would be exceedingly perverse if a
male worker could buy his supervisors and his company immunity from Title VII liability by
taking care to harass sexually an occasional male worker, though his preferred targets were
The Court agrees with the analysis in these cases, and finds that a reasonable jury could
find that Plaintiffs were subjected to sexual harassment by the cyber-stalking because of their
gender, notwithstanding the fact that Berardis may also have been subject to sexual harassment
based on his gender. Therefore, Defendants are not entitled to summary judgment based on this
factor of Plaintiffs’ sexual harassment claims.
ii. Prompt Remedial Action
The Court must still consider whether Plaintiffs have satisfied the fifth element of their
hostile work environment claim, which establishes the basis on which to hold the employer
liable. The basis of an employer’s liability for sexual harassment depends in part on whether the
harasser is the victim’s supervisor or merely a coworker. Huston v. Procter & Gamble Paper
Products Corp., 568 F.3d 100, 104 (3d Cir. 2009); see Faragher v. City of Boca Raton, 524 U.S.
775 (1998). In the present case, the identity of the alleged harasser is unknown, yet Plaintiffs do
not allege that the harasser was a supervisor.
An employer will be liable for the harassing conduct of the alleged victim’s coworker if
the employer was “negligent or reckless in failing to train, discipline, fire or take remedial action
upon notice of harassment.” Andreoli v. Gates, 482 F.3d 641, 644 (3d Cir. 2007) (quoting
Bonenberger v. Plymouth Twp., 132 F.3d 20, 26 (3d Cir. 1997)). An employer is negligent if it
“knew or should have known about the harassment, but failed to take prompt and adequate
remedial action.” 8 Jensen v. Potter, 435 F.3d 444, 453 (3d Cir. 2006) (internal quotations
omitted). “In most cases, the focus will be on the timing and nature of the employer’s response.”
Andreoli, 482 F.3d at 644. Even if the remedial action does not stop the alleged harassment, it is
“adequate” if it is “reasonably calculated” to end the harassment. Id. (quoting Knabe v. Boury
Corp., 114 F.3d 407, 412-13 (3d Cir. 1997)).
The parties dispute whether the remedial actions taken by RDG after Plaintiffs (and
Jackson and Berardis) complained about the alleged cyber-stalking were prompt and adequate as
a matter of law. Defendants argue that, after the first complaint in July 2013, and beginning on
July 15, 2013, RDG engaged in a “multi-faceted, extensive investigation” into the situation,
involving the DHS, FPS, Ice Computer Forensic Unit, and NJSP. (Defs.’ Mot. at 14-16; DSOF ¶
36; see supra pp. 5-9). They further argue, “[t]hat RDG and the other agencies were unable to
definitively identify the stalker is irrelevant to RDG’s liability” given how thorough the
investigation was. (Defs.’ Mot. at 16).
Plaintiffs, by contrast, argue that RDG’s remedial action “was neither prompt, nor
sufficient” with respect to the 2014 cyber-stalking activity. (Pls.’ Opp’n at 11). In support, they
The parties agree that this is the appropriate standard.
argue that, (1) they “complained to Kelley and McClay in March of 2014, and RDG took no
action whatsoever in response to these complaints until mid-May”; (2) upon complaining, Kelley
told Plaintiffs to “just ignore it” (PSOF ¶ 39); and (3) Kelley and McClay generally “hinder[ed]
the progress of any actual investigation.” (Pls.’ Opp’n at 12).
For the following reasons, the Court finds that the record evidence does not support
Plaintiffs’ characterization of Defendants’ conduct in response to the cyber-stalking situation.
First, by Plaintiffs’ own admission, when Plaintiffs initially complained to RDG about
the cyber-stalking situation, RDG—with the coordination of several other federal agencies and
the NJSP—undertook a prompt and thorough investigation into the cyber-stalking situation.
(See DSOF ¶ 46 (Gemma testified that by sending an email to the Joint Intake Center, Rossner
“was trying to get someone’s attention to deal with the situation posed by the anonymous
messages. Gemma further agreed that her complaints and the complaints of her co-workers,
including her sister, were being taken seriously”); id. ¶ 47 (“Gemma  testified it was reasonable
that if the matter was referred to DHS, then her employer would reasonably defer to DHS to
investigate the issues. Gemma further agreed that doing so would not be any indication that her
employer does not care about the ongoing issue relative to the known person stalking RDG
employees electronically”); id. ¶ 50 (“From August 1, 2013 through September 30, 2013, the
New Jersey State Police conducted a thorough investigation[.]”); id. ¶ 61 (“Gemma  agreed
that, as of December, 2013, since the stalking had died down and DHS, FPS and the New Jersey
State Police were doing their jobs, there really was “not much for [her] employer to do relative to
the stalking activities.”).
Moreover, Gemma admitted that her gripe, with respect to the handling of the cyberstalking situation, was with “the way [Kelley] handled the situation” as opposed to how RDG, as
an employer, handled the situation. (Reply, Ex. 8, “Gemma Dep,” at 110; see DSOF ¶ 85).
The parties dispute whether the stalking activity resumed in March, April or May 2014.
(DSOF ¶ 62). While Plaintiffs contend that it resumed in March, the only documentary evidence
to which they point is Scrimpf’s summary, which states that the activity resumed “approximately
2-3 months” after Mandi was terminated, in December 2013. (Defs.’ Mot, Ex. 24). There is no
evidence that Plaintiffs complained before April, and, in fact, Gemma testified in her deposition
that “approximately sometime in April , I did make a telephonic complaint to Sheila
McCombs . . . and Steven Schrimpf.” (Gemma Dep. at 140). Moreover, the record indisputably
shows that Schrimpf circulated a detailed summary of his internal investigation in mid-May
2014, which was clearly the product of a serious investigation that began well in advance of the
date of circulation. (Defs.’ Mot., Ex. 24). Accordingly, there is simply no evidence in the record
to suggest that RDG’s response to Plaintiffs’ complaints about the cyber-stalking situation was
anything but ignored, regardless of whether Kelley may have, in a single instance, told Plaintiffs
to “just ignore it.”
At Oral Argument, Plaintiffs’ counsel argued that RDG primarily failed to take prompt
remedial action when the cyber-stalking activity resumed for the second time, in April 2014.
However, as Defendants note, Plaintiffs’ complaints in the spring of 2014 were not “about
anything different or new relative to the stalking incidents, but instead, [were] about the same
allegations that had been investigated in 2013. (Defs.’ Reply at 12). And, in any event, the
record shows that RDG’s response to the new wave of complaints was prompt and robust.
Additionally, there was also reason to believe that the investigative efforts had been
effective, since after firing Mandi, a suspect in the investigation, there was a brief reprieve from
the stalking activity. (DSOF ¶¶ 60-63). As Defendants argue, however, the adequacy of RDG’s
remedial action—including the considerable amount of time, resources and coordination among
entities involved—is not undermined by the fact that RDG was never able to conclusively
determine the identity of the harasser. (Defs.’ Mot. at 13); see Austin v. Norfold Southern Corp.,
158 Fed. App’x 374, 377-8 (3d Cir. 2005) (reversing district court’s denial of motion for
summary judgment where employer was never able to determine who wrote offensive graffiti at
workplace but took “immediate and appropriate corrective action” by, inter alia, meeting
frequently with the plaintiff, posting notices of the employer’s sexual harassment policy,
interviewing the employees the plaintiff identified as suspects, and removing the graffiti).
Accordingly, notwithstanding Plaintiffs’ ability to establish the existence of sexual
harassment in the workplace, Plaintiffs have not raised a disputed issue of material fact sufficient
to allow a jury to conclude that RDG failed to take prompt and adequate remedial action in
response to the harassment. Therefore, Defendants are not liable to Plaintiffs for Title VII sexual
harassment as a matter of law.
B. Both Plaintiffs’ Title VII Retaliation Claims 9
Plaintiffs also allege that their respective terminations from RDG were in retaliation for
complaints they each made about sexual harassment by the cyber-stalker. In order to make out a
prima facie case for retaliation under Title VII, a plaintiff must demonstrate that
The analysis required for adjudicating plaintiffs claim under the PHRA is identical to a
Title VII inquiry. Scheidemantle v. Slippery Rock Univ., 470 F.3d 535, 539 n.5 (3d Cir. 2006);
Goosby v. Johnson & Johnson Medical, 228 F.3d 313 (3d Cir. 2000). Accordingly, the
resolution of Plaintiffs’ retaliation claims under Title VII will be dispositive of Plaintiffs’
retaliation claims under the PHRA.
(1) the employee engaged in a protected employee activity;
(2) the employer took an adverse employment action after or contemporaneous with the
employee’s protected activity; and
(3) a causal link exists between the employee’s protected activity and the employer’s
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000). Unlike hostile work
environment claims, the burden-shifting framework established in McDonnell Douglas applies to
retaliation claims arising under Title VII. Therefore, if a prima facie case is established, then
RDG must articulate a legitimate, non-retaliatory reason for the adverse employment action.
Smith v. Borough of Wilkinsburg, 147 F.3d 272, 278 (3d Cir. 1998). If RDG offers such a
reason for its action, then Gemma must present evidence proving that the reason is a pretext for
i. Title VII Retaliation against Gemma: Prima Facie
1. Protected Activity
Defendants first argue that Gemma’s complaints are not “protected activity,” under the
first prong of the prima facie test, because her complaints were not based on her membership in a
protected class, but rather were complaints about Kelley’s handling of the May 9, 2014
altercation between Gemma and Mustafaa. (Defs.’ Mot. at 17-18).
Defendants are correct that “Title VII and the ADEA do not protect an employee from
the consequences of any and all complaints he or she makes or dissatisfaction he or she
expresses.” O’Malley v. Fairleigh Dickinson Univ., 10-cv-6193 (KSH), 2014 WL 67280, at *15
(D.N.J. Jan. 7, 2014) (citing Barber v. CSX Distribution Services, 68 F.3d 694 (3d Cir. 1995)).
Here, however, it is clear that Plaintiffs’ complaints were at least in part related to the cyber10
Since many of the Plaintiffs’ remaining claims involve the burden-shifting framework,
the Court will address the existence of prima facie evidence as to each claim first, and address
stalking situation (see Pls.’ Opp’n, Exs. M, I, P, Q, K). Specifically, Plaintiffs aver that
Gemma’s final protected activity was on May 25, 2014, when she “emailed McCombs and
Scrimpf additional graphic sexual messages[.]” (Pls.’ Opp’n at 15). Plaintiff’s complaints about
the cyber-stalking situation are “protected activity,” for purposes of Title VII retaliation, so long
as they are made based on a belief that the activity they opposed was unlawful under Title VII.
See generally, Eldridge v. Municipality of Norristown, 514 Fed. App’x 187, 190 (3d Cir. 2013).
Based on the foregoing discussion regarding Plaintiffs’ allegations that they were the
subject of discrimination based on their sex, discussed infra, V.A.i, the Court finds that
Plaintiffs’ complaints satisfy the “protected activity” element of the prima facie test.
2. Adverse Employment Action
It is undisputed that Gemma’s termination, on June 3, 2014, constituted an adverse
employment action for purposes of Title VII.
3. Causal Link
The critical component of Plaintiffs’ Title VII retaliation claim (and all of Plaintiffs’
retaliation claims) is the retaliatory nexus or causal link between Plaintiffs’ protected conduct
and RDG’s decision to terminate them. Courts consider “a broad array of evidence” in
determining whether a sufficient causal link exists to survive a motion for summary judgment.
LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232–33 (3d Cir. 2007) (quoting
Farrell, 206 F.3d at 284. Where the temporal proximity between the protected activity and the
adverse action is “unusually suggestive,” it is sufficient standing alone to create an inference of
causality and defeat summary judgment. See Clark County School Dist. v. Breeden, 532 U.S.
268, 273–74 (2001) (temporal proximity alone, when “very close,” can in some instances
establish a prima facie case of retaliation); Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989)
(reversing summary judgment in favor of the defendant where the plaintiff had been discharged
two days after his employer’s receipt of his EEOC claim).
Where the temporal proximity is not “unusually suggestive,” however, courts ask
whether “the proffered evidence, looked at as a whole, may suffice to raise the inference.”
Farrell, 206 F.3d at 280 (internal citation and quotation marks omitted). Among the kinds of
evidence that a plaintiff can proffer are intervening antagonism or retaliatory animus,
inconsistencies in the employer’s articulated reasons for terminating the employee, or any other
evidence in the record sufficient to support the inference of retaliatory animus. Id. at 279–81,
see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a
scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.”).
a. Temporal Proximity
Plaintiffs argue that they can establish causation because the temporal proximity alone
between Gemma’s “final act of protected activity” on May 25, 2014—when she sent an email to
McCombs and Schrimpf attaching some of the graphic sexual messages she received from the
cyber-stalker—and RDG’s termination of her on June 3, 2014, is sufficient to “satisf[y] the low
burden of establishing a prima facie case.” (Pls.’ Opp’n at 15-16).
Defendants argue, by contrast, that Gemma’s relevant complaint was made on May 15,
2015, when she sent an email to McCombs regarding Kelley’s handling of the altercation
between Gemma and Mustafaa. Since the time between May 15, 2014 and June 3, 2014 is not
“unduly suggestive,” they argue, “supplementary evidence of retaliatory motive” is needed to
establish a causal link. (Defs.’ Mot. at 19).
For purposes of the causal link analysis, the Court will accept as the last date of
“protected activity” Plaintiffs’ May 25, 2014 email (which can be construed as a complaint about
the cyber-stalking situation) as opposed to Defendants’ May 15, 2014 date (which was a
complaint about the way Kelley was handling Gemma’s altercation with Mustafaa). (See Pl.’s
Opp’n, Ex. M; DSOF ¶¶ 84-85). Therefore, the time that elapsed between Gemma’s final
complaint and her termination was nine days, which under Third Circuit precedent, could be
suggestive of retaliatory motive. See Farrell, 206 F.3d at 280 (“the probative value of temporal
proximity in retaliation cases. . . [depends] . . . on how proximate the events actually were”);
Sowell v. Kelly Services, Inc., 139 F. Supp. 3d 695 (E.D. Pa. 2015) (seven days is “within the
realm of what courts have found to be sufficient to establish a prima facie case”).
Even if temporal proximity is unusually suggestive of retaliatory motive, however, the
“degree of suggestiveness of the time span depends on the particular facts of the situation.”
Mascioli v. Arby’s Restaurant Group, Inc., 610 F. Supp. 2d 419, 437 (W.D. Pa. Mar 16, 2009).
The suggestiveness of temporal proximity can be diminished by the circumstances surrounding
termination. Id. (citing Zelinski v. Pa. State Police, 108 F. App’x 700, 706 (3d Cir. 2004)).
The suggestiveness of the temporal proximity between Gemma’s last complaint and her
termination is significantly diminished in this case. Plaintiffs do not dispute—yet neglect to
mention in their briefs—that, in the course of the investigation into the cyber-stalking situation,
Gemma was involved in an entirely unrelated altercation with Mustafaa on May 9, 2014, as a
result of which RDG reasonably decided to review both of their browser histories. Once pulled
and reviewed, RDG discovered that Gemma had been spending a significant amount of her
working hours taking online education courses, in violation of RDG’s computer use policy. The
record indicates that Gemma had been complaining about the cyber-stalking situation since July
2013 (DSOF ¶ 35), yet her employment was never in jeopardy. Once it was discovered, in May
2014, that Gemma had been egregiously violating the computer use policy, however, Gemma
was swiftly terminated.
This significant intervening event makes the time span between Gemma’s complaints and
termination far less suggestive of retaliation, as the far more proximate event was the discovery
of her browser history. See Caplan v. L Brands/Victoria’s Secret Stores, LLC, 210 F. Supp. 3d
744, 760 (W.D. Pa. Sept. 28, 2016) (finding temporal proximity of 10 days not sufficient to
satisfy causation element of prima facie retaliation case because the plaintiff’s “termination is
even more proximate to [the defendant’s] receipt of an ethics complaints about her.”). There is
no dispute that, during the course of this altercation, each accused the other of improper use of
the internet while at work. (See DSOF ¶ 77). Indeed, it defies logic to attribute the decision to
review her browser history to her complaints about the stalking situation rather than to the
immediately preceding incident that put the question of her browser history in issue.
Plaintiffs explicitly state that, other than temporal proximity, the only basis for their Title
VII retaliation claim is that Defendants offer “shifting reasons for their terminations” in that they
first indicated that Plaintiffs were being fired for “rule violation,” and subsequently indicated that
they were being fired for “rule violation,” “dereliction of duty,” and “failing to recognize the
gravity and importance of their duties.” (Pls.’Opp’n at 17 (citing PSOF ¶¶ 71-72)). The Court
recognizes that a plaintiff may establish a causal link by showing that an employer gave
inconsistent reasons for terminating an employee. See Waddell v. Small Tube Products, Inc.,
799 F.2d 69, 73 (3d Cir. 1986). However, the record evidence here does not support a finding
that RDG gave inconsistent explanations for terminating Plaintiffs, as they are all descriptions of
the underlying reason: improper use of the RDG computers.
Accordingly, because the temporal proximity between Gemma’s last complaint and her
termination is insufficient, and Plaintiffs point to no supplementary evidence sufficient to
establish the causal nexus, Plaintiffs have failed to make out a prima facie claim of Title VII
ii. Title VII Retaliation against Jacqueline: Prima Facie
1. Protected Activity
With regard to Jacqueline, Plaintiffs allege that her termination from RDG on July 30,
2014, was in retaliation for (1) complaints about the cyber-stalking situation beginning in March
2014, and (2) a letter she and Gemma sent to Kelley and McCombs, via counsel, on July 23,
2014 (see PSOF ¶ 34; Pls.’ Opp’n, Ex. U), indicating that Gemma is “highly concerned that her
sister . . . will be retaliated against” and requesting that she not be retaliated against for her
complaints. (Pls.’ Mot. at 16). For the reasons stated supra,V.B.i.1, these complaints constitute
“protected activity” under Title VII.
2. Adverse Employment Action
It is undisputed that Gemma’s termination, on July 30, 2014, constituted an adverse
employment action for purposes of Title VII.
3. Causal Link
Plaintiffs again rely on the temporal proximity to establish a causal link between
Jacqueline’s protected activity, which ended on July 23, 2014, and her termination, which
occurred on July 30, 2014. (Pls.’ Opp’n at 16-17).
Here again, however, Plaintiffs’ reliance on temporal proximity is misplaced, since
Plaintiffs fail to mention the glaring, intervening event that more reasonably accounts for her
termination. That is, because the cyber-stalking situation investigation continued even after
Gemma’s termination, at some point in June, Agent Fuscellaro, a special agent with DHS,
requested that the internet browser histories of all affected employees be reviewed. (DSOF ¶¶
95, 96). Thereafter, an FSP officer advised RDG that Jacqueline’s browser history showed that
she had spent 26.5 hours completing online college courses at Walden.edu during work hours.
(DSOF ¶¶ 96, 97). Plaintiffs’ joint letter to counsel was in the three-week period between RDG
learning of Jacqueline’s internet browser history and its decision to suspend and then terminate
Therefore, while Jacqueline’s termination may have been in close temporal proximity to
her complaints, it is clear that the motivation behind its review was to solve the cyber-stalking
problem, not to retaliate against Jacqueline for complaining about it. This is made clear by the
fact that her browser history was not singled out, but rather was part of a procedure that applied
to all complaining employees. At Oral Argument, Plaintiff’s counsel even conceded that
Jacqueline did not believe that her browser history was targeted for review.
Plaintiffs point to no evidence other than temporal proximity to establish that the reason
for Jacqueline’s termination was because of her complaints about the cyber-stalking situation.
Accordingly, Plaintiffs fail to establish a prima facie case for Title VII retaliation against
C. Both Plaintiffs’ FMLA Retaliation Claims: Prima Facie
Plaintiffs also allege that Defendants discriminated against them for use of their granted
FMLA leave time. FMLA retaliation claims are subject to the same burden-shifting analysis as
Because Plaintiffs cannot establish their Title VII claims, and PHRA claims are subject to
the same legal analysis as Title VII claims, there is no unlawful activity that Kelley could have
“aided or abetted.” (See Compl. ¶ 70). Accordingly, Plaintiffs also cannot establish their PHRA
claims alleging individual liability against Kelley.
Title VII claims, outlined above. Betz v. Temple Health Sys., No. 15-CV-00727, 2016 WL
147155, at *7 (E.D. Pa. Jan. 13, 2016), aff’d, 659 Fed. App’x 137 (3d Cir. 2016).
To make out a prima facie case for FMLA retaliation, a plaintiff must show that,
(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.
Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012). Here, it is
undisputed that both Plaintiffs were entitled to, and invoked, FMLA leave time, and that both
Plaintiffs’ termination in 2014 constituted an adverse employment decision. Therefore, the only
disputed element of the prima facie case is whether there was a causal connection between
Plaintiffs’ respective invocations of FMLA leave time and RDG’s decision to terminate them.
Here, Plaintiffs attempt to satisfy causation based on temporal proximity alone—i.e., they
argue that “the single fact that each of them took FMLA leave within a short time of being
terminated suffices to defeat summary judgment.” 12 (Defs.’ Reply at 5).
In Gemma’s case, Plaintiffs argue that the causal connection exists because there was
only a six-day separation between the final time that she took FMLA leave, May 28, 2014, and
the date of her termination, June 3, 2014. (Pls.’ Opp’n at 7). Plaintiffs argue that the existence
of a causal connection is also supported by the comment Mustafaa made during their altercation
There is some suggestion in recent case law that temporal proximity should be measured
from the first date on which an employee engaged in protected activity, see, e.g., Blakney, 559
Fed. App’x. at 186 (citing Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989)), rather than the
last. Given that Gemma began taking FMLA leave in November 2012, and Jacqueline, in March
2013, measuring from that point would entirely undermine Plaintiffs’ temporal proximity
arguments with respect to their FMLA claims. However, because, as Plaintiffs note (Pls.’ Opp’n
at 7), there is also support for the proposition that temporal proximity is calculated form the most
recent time a plaintiff used an FMLA leave day, we will assume that those dates are the
appropriate date under which to analyze the claim.
about Gemma coming to work anymore, which Gemma contends “thr[ew] her FMLA out on the
dispatch floor.” (DSOF ¶ 74).
Similarly, in Jacqueline’s case, there was a ten-day separation between the last day she
took FMLA leave, July 20, 2014, and the date of her termination, July 30, 2016. Plaintiffs argue
that “[t]his timing alone is sufficient to establish the causation element.” (Pls. Opp’n at 7).
Defendants contend that while there may be temporal proximity, that proximity is not
unduly suggestive of retaliatory animus when considered in context. They argue, “noticeably
absent from the facts underpinning Plaintiffs’ argument is that [both Gemma and Jacqueline
were] approve for and used FMLA leave beginning in 2012 and through 2014 without incident.
In fact, they both testified that they received every day of leave they asked for and both had
recertified for FMLA leave without a problem.” (Defs.’ Reply at 6; DSOF ¶¶ 21-32).
Defendants continue, “[a]s for termination, in each instance, the Plaintiffs were terminated for
using an inordinate amount of time to pursue their education online at Walden.edu, an internet
school.” (Defs.’ Reply at 6). That the independent discoveries of each Plaintiff’s browser
histories happened to be in close proximity to one of the several times in which Plaintiffs took
FMLA leave is, according to Defendants, sheer coincidence.
As discussed above in the context of Title VII, even if temporal proximity is suggestive
of retaliatory motive, the “degree of suggestiveness of the time span depends on the particular
facts of the situation,” and the suggestiveness of temporal proximity can be diminished by the
circumstances surrounding termination. Mascioli, 610 F. Supp. 2d at 437 (citing Zelinski v. Pa.
State Police, 108 Fed. App’x 700, 706 (3d Cir. 2004)). Here, the Court agrees with Defendants
that the suggestiveness of the temporal proximity between Plaintiffs’ use of FMLA leave time
and their termination is diminished by the fact that their browser histories were independently
discovered in close proximity to each of their termination dates. See, e.g., Caplan, 210 F. Supp.
3d at 760 (“suggestiveness” of 9 day span between plaintiff’s return to work from FMLA leave
and termination “diminished . . . because [plaintiff’s] termination is even more proximate to
[defendant’s] receipt of an ethics complaint about her.”).
Even if the suggestiveness created by the temporal proximity in this case was not
diminished by these circumstances, Plaintiffs’ FMLA retaliation claim suffers from an even
more fundamental flaw. In order for either Plaintiff to rely upon temporal proximity to prove the
third element of their prima facie case, they must produce evidence sufficient to allow a
reasonable jury to find that the decision-makers knew about their FMLA-protected activities.
McElroy v. Sands Casino, 593 Fed. App’x 113, 116 (3d Cir. 2014) (citing Moore v. City of
Philadelphia, 461 F.3d 331, 351 (3d Cir. 2006) (“To the extent that [plaintiff] relies upon the
brevity of the time periods between the protected activity and alleged retaliatory actions to prove
causation, he will have to show as well that the decision maker had knowledge of the protected
activity.” (internal citations omitted)).
Here, the record directly contradicts such a finding. As for Gemma, regardless of
Mustafaa’s comment regarding Gemma’s use of FMLA leave time, it is beyond dispute that she
had no control over the terms and conditions of her employment, and did not have the authority
to terminate her. (DSOF ¶ 27; see Gemma Dep. at 78-80). A “stray remark, unconnected with
and remote from the decision-making process which resulted in [Gemma’s] discharge . . . does
not provide sufficient evidence from which a rational factfinder could conclude that plaintiff’s
termination was causally related to her FMLA activity.” Calero v. Cardone Indus., Inc., 11-cv3192, 2012 WL 2547356, at *8 (E.D. Pa. June 29, 2012) (Baylson, J.).
More critically, it is undisputed that the individuals who made the decision to
determinate Plaintiffs were Garcia and Gonzales, neither of whom was aware that either Plaintiff
had recently taken an FMLA leave day when they made the decision to terminate them. (Defs.’
Reply, Ex. 4, “Garcia Decl.” ¶ 5; Ex. 5, “Gonzales Decl.” ¶ 5).
For all the foregoing reasons, Plaintiffs fails to make out a prima facie case of FMLA
retaliation because there is no evidence of causation between their FMLA leave time and their
D. Gemma’s ADA Retaliation Claim: Prima Facie
Plaintiffs also allege that Defendants discriminated against Gemma by terminating her
due to a disability, in violation of the ADA. To establish a prima facie case of employment
discrimination under the ADA, a plaintiff must be able to establish that he or she
(1) had a disability,
(2) is a qualified individual, and
(3) has suffered an adverse employment action because of that disability.
Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 (3d Cir. 1998).
In opposing Defendants’ motion to dismiss, Plaintiffs rely on the exact same facts to
support Gemma’s ADA claim as they do to support her FMLA claim. (See Pls.’ Opp’n at 13
(“Gemma Sawa engaged in protected activity under the ADA when she requested an
accommodation of her disability on May 28, 2014. She was subjected to an adverse employment
action when she was terminated on June 3, 2014, six days later. Finally, Gemma Sawa can
establish the third element of her prima facie case of ADA retaliation by relying upon the unduly
suggestive timing between her request for intermittent leave on May 28, 2014, and her
termination that occurred six days later on June 3, 2014.”)). Plaintiffs do not point to a single
piece of record evidence where decision-makers so much as mentioned her disability, in the
context of her termination or otherwise. Accordingly, Plaintiffs fail to make out a prima facie
case of ADA retaliation against Gemma for the same reasons they fail to establish a claim for
FMLA retaliation against Gemma, supra, IV.C.
E. Pretext Analysis 13
Although the Court concludes that Plaintiffs have failed to proffer sufficient evidence to
establish a prima facie case of retaliation under Title VII, the FMLA, and the ADA, the Court
will consider Plaintiffs’ evidence of pretext in the interest of completeness.
Plaintiffs’ Title VII, FMLA and ADA retaliation claims all follow the McDonnell
Douglas burden-shifting framework. See Lichtenstein v. University of Pittsburgh Medical Ctr.,
691 F.3d 294, 311 (3d Cir. 2012) (FMLA); Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000)
(ADA). Under this familiar framework, if a prima facie case of retaliation is established, then
the employer must articulate a legitimate, non-retaliatory reasons (“LNRR”) for the adverse
employment action. See Ross v. Gilhuly, 755 F.3d 185, 193 (3d Cir. 2014).
Here, Defendants’ proffered LNRR for terminating both Gemma and Jacqueline was the
discovery that they were each in egregious violation of the computer use policy by completing
online coursework and tests on Walden.edu during work time. Accepting Defendants’ LNRR,
the burden then shifts back to Plaintiffs to prove by a preponderance of the evidence that the
proffered reason is a pretext for retaliation.
Under the so-called Fuentes test, to demonstrate pretext, an employee must either: (1)
offer evidence that casts sufficient doubt upon the legitimate reason proffered by the defendant
so that a fact-finder could reasonably conclude that the reason was a fabrication, or (2) present
In their Surreply, Plaintiffs argue that because Defendants argued in their original motion
for summary judgment that Plaintiffs’ failed to make out a prima facie case for discrimination,
they are precluded from arguing in their Reply brief that Plaintiffs’ have failed to show that
Defendants’ LNRR is pretextual. (Pls.’ Surreply at 2 n.1). This argument is rejected.
evidence sufficient to support an inference that discrimination was more likely than not a
motivating or determinative factor in the termination decision. Fuentes v. Perskie, 32 F.3d 759,
762 (3d Cir. 1994).
Applying the Fuentes test here, however, the Court finds conducting a pretext analysis in
this case would not change the ultimate ruling because the totality of the evidence in the record is
not sufficient to permit a reasonable jury to conclude that RDG’s LNRR for terminating both
Gemma and Jacqueline was pretext for retaliation.
i. Fuentes test: Prong One
Prong one of the Fuentes test focuses on whether an employee submitted evidence from
which a fact-finder could reasonably disbelieve the employer’s articulated legitimate reasons for
its employment decision. Under this prong, the employee must point to “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered
legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy
of credence,’ . . . and hence infer ‘that the employer did not act for [the asserted] non[retaliatory] reasons.’” Fuentes, 32 F.3d at 765 (internal citations omitted). An employee
“cannot simply show that the employer’s decision was wrong or mistaken.” Id. The fact that an
employer made a bad decision does not make that decision retaliatory; an employer can have any
reason or no reason for its employment action, so long as it is not a retaliatory reason. See
Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 332 (3d Cir. 1995). The question at prong
one of the Fuentes test “is not whether the employer made the best, or even a sound, business
decision;” it is whether the real reason for the employment decisions is retaliation. Keller v.
ORIX Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997). Evidence undermining an
employer’s proffered legitimate reasons must be sufficient to “support an inference that the
employer did not act for its stated reasons.” Sempier v. Johnson & Higgins, 45 F.3d 724, 731
(3d Cir. 1995).
Plaintiffs argue that the fact that Kelley was, in their estimation, “hostile” to their
complaints about the cyber-stalking activity is evidence that Kelley “used” his discovery of the
browser history “as a convenient way to be rid of two of the employees who were raising
complaints that [Kelley] felt should be ignored.” (Pls.’ Surreply at 6-7). As evidence of alleged
hostility, Plaintiffs point to the fact that Kelley (1) told Plaintiffs to “just ignore it” when they
complained in the spring of 2014 about the cyber-stalking (PSOF ¶ 39); (2) emailed McCombs to
say, “I think there are issues with Gemma” (PSOF ¶ 40); (3) mocked Jacqueline’s attempt to
“provide information for the alleged investigation” by forwarding an email be received to
McClay saying “check out this rambling email” (PSOF ¶ 51); and (4) was “dubious” of
Plaintiffs’ complaints because they were “critical” of her failure to contact Facebook to fix the
problem on her own. (PSOF ¶ 44).
The Court finds, however, that none of the evidence to which Plaintiffs points is truly
supplementary evidence of retaliatory motive. See generally Erbe v. Potter, No. 08-cv-0813,
2010 WL 1052947, at *4 (M.D. Pa. Mar. 22, 2010) (“‘Among the kinds of evidence that a
plaintiff can proffer are intervening antagonism or retaliatory animus, inconsistencies in the
employer’s articulated reasons for terminating the employee, or any other evidence in the record
sufficient to support the inference of retaliatory animus.’”) (quoting LeBoon, 503 F.3d at 232).
As for Gemma, regardless of Kelley’s attitude towards Plaintiffs, there is no evidence that
anything other than the altercation between Gemma and Mustafaa prompted Kelley to request
that their browser histories be reviewed, which led to the discovery of Gemma’s improprieties.
(DSOF ¶ 86).
Additionally, based on the record evidence, any skepticism expressed by Kelley towards
Gemma regarding the cyber-stalking situation was legitimate, and the record does not indicate
that it was motivated by a belief that Plaintiffs’ complaints were a nuisance, as a result of which
they should be fired. For instance, on May 5, 2014, Gemma reported that her medical records
were faxed to RDG without her consent, but Kelley discovered in her internet history that she
had “searched how to access Quest Diagnostics records from a cell phone shortly before the
incident was reported.” (Defs.’ Reply, Ex. 10). Additionally, the NJSP determined that at least
one of the harassing messages originated from Gemma’s neighbor’s IP address. (Def.’s Mot.,
Ex. 34), which led to Gemma being “identif[ied] as a suspect in the stalking matter.” (Defs.’
Mot., Ex. 21). Additionally, Berardis testified that early on during the stalking incidents, he
received a nude photo of Jacqueline in a bathtub at her home, leading him to suspect Gemma
“had a hand in the activity.” (Defs.’ Reply, Ex. 11).
As for Jacqueline, the undisputed evidence in the record shows that it was Agent
Fuscallaro—not Kelley—who requested the internet browser histories from all of those
employees complaining of harassment, “and “[o]n July 1, 2014, an FPS officer [not Kelley]
advised RDG that it was just brought to his attention that Jacqueline Sawa’s browser history
showed she was completing online college courses during work hours. “ (DSOF ¶ 96; Def.’s
Mot., Ex. 36). Further, the FPS officer specifically requested that RDG immediately address this
problem because this was the “third such instance over the past year and a half in which an RDG
employee engaged in activities during work hours.” (Id.). While Kelley may well have
reviewed all four individuals’ browser histories in connection with the investigation of the cyberstalking situation, and came upon Jacqueline’s browser activity in the course of that review, there
is no evidence that he targeted Jacqueline.
Plaintiffs also argue, as evidence that Defendants’ LNRR is pretextual, that RDG’s
computer use policy was not being enforced as written (see Pls.’ Opp’n, Ex. LL, MM) until
Kelley’s May 12, 2014 email (which was after Gemma’s May 9, 2014 altercation with
Mustafaa), in which he stated that the policy had to be “followed immediately.” 14 (PSOF ¶ 66).
The Court finds that RDG’s decision to become more concerned about enforcement of its
computer use policy after learning of allegations of breaches of its computer use policy is a
logical business decision that the Court will not disturb. See Andersen v. Mack Trucks, Inc., 118
F. Supp. 3d 723, 747 (E.D. Pa. 2015), aff’d, 647 Fed. App’x 130 (3d Cir. 2016) (“It is not the
Court’s role to second-guess business decisions where there is no evidence of discriminatory
animus.”). It is not for this Court to determine whether it was fair for RDG to decide to begin
enforcing an already-existing computer use policy after the discovery of egregious misuse by
employees. It is further not this Court’s role to second-guess RDG’s recognition of a material
distinction, in terms of employment consequences, between different types of “down time”
activities while at work.
It was a reasonable business decision to determine that use of the internet to complete
coursework—but not surf the internet or look up food menus—was a terminable offense. See
Paich v. Nike, Inc., 06-cv-1442, 2008 WL 696915, at *8 (W.D. Pa. Mar. 12, 2008) (noting that
“[i]n a discrimination case, the issue before the court is not the fairness of an employer’s
decision to terminate the plaintiff, but whether the record raises an issue of fact as to whether the
decision was motivated by discriminatory animus”) (citing Brokenbaugh v. Exel Logistics N.A.,
Inc., 174 Fed. App’x 39, 45 (3d Cir. 2006)). Indeed, courts frequently hold that an employee’s
Plaintiffs try to catch Kelley in an inconsistency by arguing that he stated in his
deposition that the computer use policy was “put in place” following the discovery of Gemma’s
browser history as opposed to just enforced. It is clear, and the parties do not dispute, that the
written computer use policies were in place all along and both Plaintiffs’ were aware of them.
improper use of an employer’s computer is a legitimate basis for termination. See, e.g., Twymon
v. Wells Fargo & Co., 462 F.3d 925, 935 (8th Cir. 2006) (“gross violation of the company’s
computer policy” is legitimate reason for termination); Weber v. Universities Research Ass’n,
621 F.3d 589, 593 (7th Cir. 2010) (same).
Accordingly, Plaintiffs have not raised an inference of pretext under the first prong of the
ii. Fuentes test: Prong Two
Prong two of the Fuentes test permits an employee to survive summary judgment if she
can demonstrate that retaliation “was more likely than not a motivating or determinative cause of
the adverse employment action.” Fuentes, 32 F.3d at 762. The kinds of evidence relied upon by
the Court of Appeals for the Third Circuit under this prong of the Fuentes test are: 1) whether the
employer previously retaliated against the plaintiff; 2) whether the employer has retaliated
against other persons; and 3) whether the employer has previously treated more favorably
similarly situated persons who did not engage in the protected activity at issue. See Simpson v.
Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644-45 (3d Cir. 1998).
Plaintiffs argue that Defendants’ LNRR is pretextual because similarly situated RDG
employees (i.e. comparators) used the internet for personal reasons, but were not terminated. It
is well established that a plaintiff alleging employment discrimination may establish pretext by
showing “that the employer treated other, similarly situated persons not of his protected class
more favorably.” Hodczak v. Latrobe Specialty Steel Co., 451 Fed. App’x 238, 242 (3d Cir.
2011) (quoting Fuentes, 32 F.3d at 765). “Comparator analysis normally focuses on an
infraction by the plaintiff that led to an adverse employment action and compares that to the
infractions and punishments of other employees[.]” Henry v. City of Allentown, 12-cv-1380,
2014 WL 4652474, at *2 (E.D. Pa. Sept. 18, 2014).
Here, Plaintiffs point to three RDG employees whom they assert are proper comparators:
(1) Andrew Konshak, (2) Kevin Kline, and (3) Brett Buddendorf. The record establishes that
Andrew Konshak used the internet while at work to, inter alia, research fantasy sports, read
sports and other news, browse ESPN.com, and look up dog wallpapers.” (See Pls.’ Surreply, Ex.
D). Similarly, Kevin Kline used the internet while at work to, inter alia, read online news, read
comic books, online shop, and look up pictures of female celebrities. (Id., Ex. G). Third, Brett
Buddendorf used to internet while at work to browse sports website, shop online, engage in
online dating, look at pictures of female celebrities, and—importantly—complete online
coursework. (Id., Ex. F).
The Court finds that these other employees are not similarly situated, and therefore
cannot function as comparators relevant to a finding of pretext. The record evidence reflects that
the computer use policies in place required that RDG employees make only limited personal use
of the computer systems. As previously discussed, the evidence shows that the nature of
Plaintiffs’, and Plaintiffs’ colleagues, work at RDG at times included a lot of down time,
depending on how busy the call centers were at any particular time. Therefore, it was
unsurprising that employees engaged in the type of online activities in which Kline, Konshak,
and Buddendorf engaged—internet surfing, checking sports scores, online shopping, etc.
However this type of internet use is different in kind from Plaintiffs’ use, which included large
percentages of their working time logged into Walden.edu. As discussed, supra, the record
evidence establishes that use of Walden.edu is a far more distracting use of the internet than
others, and is therefore a far more egregious violation of RDG’s “limited” personal use policy.
While the record shows that Budendorf did spend very minimal amounts of time logged into
Walden.edu, it is clear from the length of his log-in that he only checked his grades and score,
rather than complete assignments and assessment in real time. (Reply, Ex. 12, “Budendorf
Dep.,” at 24)
Plaintiffs cannot establish that Defendants’ LNRR is pretextual simply because others
who committed different and far less egregious transgressions did not suffer the same adverse
employment consequences. See Carter v. Midway Slots & Simulcast, 511 Fed. App’x 125, 128
(3d Cir. 2013) (noting dissimilarity of alleged comparators where they violated the attendance
policy and plaintiff was terminated for sleeping on the job), cert. denied, ––– U.S. ––––, 134
S.Ct. 138, 187 L.Ed.2d 97 (2013); Williams v. Potter, 07-cv-02, 2008 WL 282349, at *6 (W.D.
Pa. Jan. 31, 2008) (“Where an alleged comparator does not engage in the same misconduct for
which the plaintiff suffered an adverse employment action, he is not a similarly situated
employee for purposes of proving an inference of discrimination.”); Barrouk v. PNC Bank, N.A.,
14-cv-1102, 2016 WL 1109487, at *9 (M.D. Pa. Mar. 22, 2016) (“Barrouk’s efforts to create the
impression of similarly situated employees fails, however, because the alleged comparators are
not similarly situated to him, and committed different infractions.”).
Plaintiffs’ alleged comparators stand is stark contrast to the one comparator offered by
Defendants, Ms. Terry Woods-Philips. It is undisputed that RDG terminated Ms. WoodsPhillips, an RDG employee, in the recent past for the very same offense in which Plaintiffs were
caught, i.e., using the internet at work to complete online coursework. (DSOF ¶ 104). Plaintiffs
argue that Ms. Woods-Phillips is not an appropriate comparator because she had a slightly
different job description from Plaintiffs, (Pls.’ Surreply at 9 n.6). The Court finds that she is
similarly situated to Plaintiffs, however, given (1) the similarity in the type of offense, (2) that
they are members of the same protected class as women, and (3) while they may have different
job descriptions, there is no allegation that they are not of the same rank at RDG. RDG’s
decision to terminate Ms. Woods-Phillips demonstrates its consistency with respect to tolerable
use of work computers, and is strong evidence that Defendants’ decision to determinate Plaintiffs
was neither discriminatory nor retaliatory.
Accordingly, in addition to failing to establish the requisite causal link to make out a
prima facie case of Title VII retaliation, Plaintiffs have also failed to show that Defendants’
proffered LNRR is pretextual.
F. Jacqueline’s Wrongful Termination Claim
Plaintiffs additionally allege that Jacqueline was wrongfully terminated, “in violation of
recognized Pennsylvania public policy.” (Pls.’ Opp’n at 15). Plaintiffs assert that RDG’s
termination of Jacqueline violated public policy because it was done in retaliation for her
decision to testify at a hearing regarding her sister Gemma’s unemployment benefits. (Id. at 17).
Defendants argue that “while Pennsylvania recognizes a cause of action where an
employer retaliated against an employee for filing for employment compensation,” it does not
recognize a cause of action “for retaliation against an employee who assists another in his or her
unemployment compensation claim.” (Defs.’ Mot. at 25-26 (emphasis added)). Accordingly,
Defendants argue they are entitled to summary judgment as to this claim because Jacqueline
alleges that she was retaliated against for assisting Gemma in Gemma’s exercise of her rights
under the Pennsylvania Unemployment Compensation Law, not that she herself was retaliated
against for exercising those rights. (Id. at 27).
Plaintiffs, by contrast, argue that, notwithstanding the fact that Pennsylvania is an at-will
employer, the claim should survive in this case because “the freedom to testify truthfully, under
oath, at an unemployment hearing on behalf of another without fear of retribution for testifying
honestly” is an important and recognized public policy. (Id. at 18). They argue further that
refusing to recognizing this claim “would place employees who are called to testify at an
unemployment hearing in the impossible situation of choosing between lying under oath and
subjecting themselves to possible criminal prosecution for perjury, or losing their job for
testifying truthfully.” (Id. at 19).
Generally, there is no common law cause of action for the discharge of an at-will
employee. Krajsa v. Keypunch, Inc., 622 A.2d 355, 358 (Pa. Super. 1993); Field v. Philadelphia
Electric Co., 565 A.2d 1170, 1179 (Pa. Super. 1989). “The Third Circuit has observed
Pennsylvania Courts have construed the public policy exception to at will employment narrowly,
lest the exception swallow the general rule. . . . Because the power to formulate public policy
rests with the legislature, a court has a sharply restricted power to declare pronouncements of
public policy.” Spyridakis v. Riesling Group, Inc., 09-cv-1545, 2009 WL 3209478, *22 (E.D.
Pa. Oct. 6, 2009), aff’d, 398 Fed. App’x 793 (3d Cir. 2010). “Exceptions to this rule have been
recognized in only the most limited of circumstances, where discharges of at-will employees
would threaten clear mandates of public policy.” Clay v. Advanced Computer Applications,
Inc., 559 A.2d 917, 918 (Pa. 1989).
Pennsylvania recognizes a cause of action for wrongful discharge in retaliation for an
employee filing an unemployment compensation claim. The cause of action focuses on
protecting the individual’s substantive right to unemployment compensation benefits that
Pennsylvania unemployment compensation law itself creates. See Highhouse v. Avery Transp.,
660 A.2d 1374, 1377-78 (Pa. Super. Ct. 1995); Raykovitz v. K Mart Corp., 665 A.2d 833, 835
(Pa. Super. Ct. 1995) (same). This protection, however, extends only to the individual seeking
unemployment compensation. See Highhouse, 660 A.2d 1374, 1378 (Pa. Super. Ct. 1995) (“The
right of an employee to receive unemployment compensation is a benefit granted by the
Plaintiffs point to no authority in Pennsylvania where a court has recognized the
exception for which they advocate here. And it is not appropriate at this time, and in this
posture, for this Court to create or expand a cause of action under Pennsylvania state law,
particularly given that Plaintiffs’ federal claims will not proceed, so the Court would be doing so
while exercising pendent jurisdiction. See 28 U.S.C. § 1367(c)(3) (authorizing federal courts to
decline to exercise supplemental jurisdiction over state law claims once it has dismissed “all
claims over which it has original jurisdiction.”)
Moreover, as established extensively throughout this memorandum, the Court is
convinced that Jacqueline, like Gemma, was terminated for improper use of the internet during
work time at RDG, and not in retaliation for any other activity.
For all of the foregoing reasons, Defendants’ motion for summary judgment as to
Plaintiffs’ consolidated complaints is GRANTED.
An appropriate Order follows.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?