Donaldson et al v. Norfolk Southern Railway Company et al
MEMORANDUM AND ORDER: 1. Plaintiffs Motion for Summary Judgment 26 is DENIED.2. Defendants Motion for Summary Judgment 32 is GRANTED.3. The clerk is instructed to CLOSE this case.Signed by Honorable John E. Jones, III on 08/15/11 (ma, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
IAN D. DONALDSON and
NORFOLK SOUTHERN RAILWAY, CO., :
and NORFOLK SOUTHERN CO.,
Hon. John E. Jones III
MEMORANDUM AND ORDER
August 15, 2011
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Presently before the Court is Plaintiff Ian D. Donaldson and Megan
Donaldson’s Motion for Summary Judgment, (Doc. 26), and Defendant Norfolk
Southern Railway Company and Norfolk Southern Corporation’s cross Motion for
Summary Judgment. (Doc. 32). For the reasons set forth below, Plaintiffs’ motion
shall be denied and Defendants’ motion shall be granted.
PROCEDURAL HISTORY and FACTUAL BACKGROUND
Due to the familiarity of the parties and this Court with the record, we
herein set forth a number of material facts supplemented as necessary by
additional facts throughout our analysis and disposition of the pending motions.
Plaintiffs Ian Donaldson (“Ian”) and his wife Megan Donaldson (“Megan”)
(collectively “Plaintiffs”) were employed by Norfolk Southern Railway (“NSR”)
during the time of the alleged incidents. Norfolk Southern Corporation (“NSC”), a
Virginia corporation, is a national transportation company engaged in the business
of hauling freight by rail through its subsidiary NSR. (Doc. 1 ¶¶ 7, 8). Ian was
hired by NSR to work as a conductor in the Enola Yard on February 8, 2007.
(Doc. 1 ¶ 16). On February 11, 2008, Megan, who was engaged to Ian, was hired
by NSR as a train dispatcher in the Harrisburg Office. (Id. ¶ 17).
In April of 2008, Ian and Megan allege they began experiencing harassment
when sexually explicit graffiti was written about Megan in the Enola Yard, where
Ian worked. (Id. ¶ 18). Plaintiffs allege that some of the graffiti described illicit
sexual activity between Megan and her boss, the Assistant Division
Superintendent. (Id.). Ian contends that he reported the sexually explicit and
offensive graffiti to his supervisor on April 5, 2008, but that sexually explicit
graffiti was again written about Megan at the Enola Yard. (Id. ¶ 19). Defendants
claim that Jeff Moore (“Moore”), the Enola Yard Terminal Superintendent,
immediately contacted higher management to inform them of the situation and
issued a bulletin the same day reiterating NSR’s policy concerning all types of
harassment. (Doc. 33 ¶¶ 35-36). In addition to instructing Ian that he should
report any further incidents of graffiti to management for investigation, NSR
directed Gary Petrewicz (“Petrewicz”), local chairman for the UTU, to talk to
UTU members and instruct them to stop writing graffiti, which he did. (Id. ¶¶ 3334).
After graffiti appeared a second time, on May 12, 2008, Ian again reported
the incident to management. (Doc. 1 ¶ 20). In response, Moore contacted higher
management including Ben Fennell (“Fennell”), the Assistant General Manager
for the Northern Region, and Don Craine (“Craine”), the Assistant Division
Superintendent, as well as NSR’s EEO Department who subsequently commenced
a formal investigation. (Doc. 33 ¶ 41). NSR’s internal investigation involved
interviewing all west end crews who used the office close to the graffiti, and
notifying Norfolk Southern Police about the incident. (Id. ¶ 42). Defendants
claim that on May 19, 2008, less than one week after the second occurrence of
graffiti was reported, NSR painted over the graffiti and was completing interviews
of the west end crews. (Id. at 43). Handwritten samples were also taken from the
twelve (12) individuals who were interviewed about the graffiti, and those samples
were forwarded to Debra Seibert (“Seibert”) in NSR’s EEO Department on June
19, 2008, who then forwarded the samples to an independent handwriting expert,
Cina Wong, (“Wong”), for analysis. (Id. ¶¶ 44-45).
Following the third instance of sexually explicit and offensive graffiti, and
another report of the incident to management on July 11, 2008, Moore
photographed the graffiti and forwarded the same to Seibert in NSR’s EEO
Department for inclusion in the already existing file sent to Wong. (Id. ¶ 47). On
August 4, 2008, Moore issued another bulletin emphasizing NSR’s EEO policy
regarding harassment to all employees at the Enola Yard. (Id. ¶ 48). Furthermore,
following Wong’s analysis of the handwriting samples and photographs, a report
was issued that resulted in five individuals being accused as the parties
responsible for the graffiti. (Id. ¶ 49). The five coworkers identified by Wong
included Shawn Cox, Jason St. Clair, Michael Whisinnand, Jack Hurley, and Ryan
Maulfair. (Id. 33 ¶ 50). Subsequently, on October 3, 2008, these individuals were
charged with “conduct unbecoming an employee; defacing company property and
engaging in harassment. . . .” (Id. ¶ 51). A hearing on this matter was rescheduled
numerous times and eventually took place on March 11, 2009. (Id. ¶¶ 51-55).
Prior to the hearing, Ian and Megan both filed individual Charges of
Discrimination with the Equal Employment Opportunity Commission (“EEOC”)
on February 9, 2009, who referred the matter to the Pennsylvania Human
Relations Commission (“PHRC”) for dual filing. (Doc.. ¶¶ 9, 10).1 Subsequently,
formal notice of Plaintiffs’ EEOC complaints was provided to Defendants on
March 3, 2009. (Doc. 27 ¶ 42). In early March, Ian reported another incident of
graffiti to Moore, but noted that he was unsure how long it had been present. (Id.¶
¶ 56-57). Before the end of the day on March 11, 2009, NSR photographed and
painted over the graffiti. (Id. ¶ 58). NSR disciplined the five employees identified
by Wong with a “30 days deferred” suspension, akin to a probationary period,
meaning that if the employee were to receive disciplinary action within a given
period of time, the employee would be suspended for 30 days. (Doc. 37 ¶ 46).
Ian contends that NSR’s investigation into the matter was not conducted in
a confidential manner and consequently, in the summer of 2008, he began
experiencing retaliation by co-workers and supervisors at NSR. (Doc. 1 ¶ 22). He
alleges that these individuals ostracized him, verbally and physically threatened
him, and physically attacked him for reporting the harassment he experienced.
(Id.). In addition, Ian claims he experienced retaliation when he was suspended
twice without pay on the basis of groundless reports regarding his work conduct
Ian’s claim was docketed as charge number 530-2009-01807, and Megan’s claim was
docketed as charge number 530-2009-01808. (Doc. 1 ¶¶ 9,10).
which were fabricated by co-workers in retaliation for his reporting of the sexually
explicit graffiti. (Id. ¶ 23).
On April 9, 2010, the PHRC closed Megan’s case administratively, and on
May 12, 2010, the PHRC closed Ian’s case administratively. (Doc. 1 ¶¶ 11, 12).
Ian and Megan both received notice of their right to sue in federal court on July 1,
2010. (Id. ¶¶ 13, 14). Plaintiffs contend they satisfied all administrative
prerequisites necessary to bring suit in federal court, and therefore they filed the
instant complaint on July 27, 2010 alleging five counts of discrimination pursuant
to Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations
Act.2 (Doc. 1). Defendants filed a Motion to Dismiss Counts IV and V of
Plaintiffs’ Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) on
September 27, 2010. (Doc. 8). Thereafter, on January 1, 2011, we issued a
Memorandum and Order denying Defendants’ motion to dismiss. (Doc. 20).
On May 23, 2011, Plaintiffs filed a Motion for Summary Judgment, (Doc.
26), and a brief in support thereof. (Doc. 28). Defendants filed an opposition
The complaint lodges the following claims of discrimination against Defendants:
Count I- Title VII Violations, Sexual Discrimination and Harassment (Ian Donaldson v.
Defendants); Count II- Title VII Violations, Retaliation (Ian Donaldson v. Defendants); Count
III- PHRA Violations, Sexual Discrimination and Harassment (Ian Donaldson v. Defendants);
Count IV- Title VII Violations, Sexual Discrimination and Harassment (Megan Donaldson v.
Defendants); and Count V- PHRA Violations, Sexual Discrimination and Harassment (Megan
Donaldson v. Defendants). (See Doc. 1).
brief on June 16, 2011. (Doc. 38). NSR and NSC filed their own cross Motion for
Summary Judgment, (Doc. 32), and brief in support thereof, (Doc. 35), on June 1,
2011. Plaintiffs filed a brief in opposition on June 22, 2011, (Doc. 40), and
Defendants filed a reply brief in further support of their motion on July 8, 2011.
(Doc. 42). Therefore, the motions have been fully briefed and are ripe for
STANDARD OF REVIEW
Summary judgment is appropriate if the record establishes “that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c). Initially, the moving party bears the
burden of demonstrating the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by
pointing to an absence of evidence supporting an essential element as to which the
non-moving party will bear the burden of proof at trial. Id. at 325. Once the
moving party meets its burden, the burden then shifts to the non-moving party to
show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is
“genuine” only if there is a sufficient evidentiary basis for a reasonable jury to find
for the non-moving party, and a factual dispute is “material” only if it might affect
the outcome of the action under the governing law. Anderson v. Liberty Lobby,
Inc, 477 U.S. 242, 248-49 (1986).
In opposing summary judgment, the non-moving party “may not rely merely
on allegations of denials in its own pleadings; rather, its response must ... set out
specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). The
non-moving party “cannot rely on unsupported allegations, but must go beyond
pleadings and provide some evidence that would show that there exists a genuine
issue for trial.” Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000).
Arguments made in briefs “are not evidence and cannot by themselves create a
factual dispute sufficient to defeat a summary judgment motion.” Jersey Cent.
Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985).
However, the facts and all reasonable inferences drawn therefrom must be viewed
in the light most favorable to the non- moving party. P.N. v. Clementon Bd. of
Educ., 442 F.3d 848, 852 (3d Cir. 2006).
Summary judgment should not be granted when there is a disagreement
about the facts or the proper inferences that a factfinder could draw from them.
Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still,
“the mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; there must
be a genuine issue of material fact to preclude summary judgment.” Anderson,
477 U.S. at 247-48.
Count I, III, IV & V: Hostile Work Environment Claim
Plaintiffs’ motion and Defendants’ motion both move for summary
judgment on Plaintiffs’ hostile work environment claims pursuant to Title VII.3
Plaintiffs note that the Third Circuit’s decision in Andreoli v. Gates requires a
plaintiff to establish that: “(1) the employee suffered intentional discrimination
because of her sex, (2) the discrimination was pervasive and regular, (3) the
discrimination detrimentally affected the employee, (4) the discrimination would
detrimentally affect a reasonable person of the same sex in that position, and (5)
the existence of respondeat superior liability.” (Doc. 28 at 14 (citing Andreoli v.
Gates, 482 F.3d at 643)).
Under the first element, Plaintiffs assert it is undisputed that they were the
subjects of sexually explicit graffiti in their workplace that described illicit sexual
Plaintiffs and Defendants also move for summary judgment on Plaintiffs’ hostile work
environment claims to the extent this cause of action is based on the Pennsylvania Human
Relations Act, (“PHRA”), 42 P.S. § 951, et seq. As we have previously noted, since the PHRA
and Title VII share the same precedent, our analysis of the summary judgment motion under Title
VII shall also apply to Plaintiffs’ PHRA claims. (Doc. 20 at 12 (citing Dici v. Pennsylvania, 91
F.3d 542, 553 (3d Cir. 1996) (nothing that “[g]enerally, the PHRA is applied in accordance with
conduct between Plaintiffs and between Plaintiffs and other third parties. (Id. at
15). They argue that the graffiti targeted Plaintiffs based on their respective
female and male genders. (Id. at 16). Plaintiffs cite Andrews v. Philadelphia for
the proposition that “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.” (Doc. 41 at 11 (citing 895 F.2d 1469, 1482 (3d Cir. 1990))). They
contend that the graffiti at issue here was designed to harass, intimidate, and
humiliate Ian and Megan based on their respective genders. (Id. at 12 (citing
Harris v. Forklift Sys. Inc., 510 U.S. 17, 21-22 (1993) (“When the workplace is
permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create
an abusive working environment, Title VII is violated.”))).
As to the second element, the pervasiveness and regularity of the
discrimination, Plaintiffs contend that the sexually explicit and offensive graffiti
began in April of 2008 and continued throughout Megan’s employment with NSR.
(Doc. 1 ¶ 39). Moreover, they claim that because this Court found such facts to
sufficiently allege the pervasive and regular element at the motion to dismiss
stage, that the same facts adequately support this element in granting Plaintiffs’
summary judgment motion.
Concerning the third element, the detrimental affect of the discrimination on
the employee, Plaintiffs claim it is undisputed that they had actual knowledge of
the sexually explicit graffiti about them. (Doc. 28 at 17). Furthermore, they
maintain it is undisputed that Plaintiffs’ coworkers at NSC observed the sexually
explicit graffiti as well. (Id.). Plaintiffs argue it is also undisputed that Megan
experienced embarrassment, emotional feelings, and stress as a result of the
sexually explicit graffiti and from interacting with her supervisors, among them
Mr. Martinez, who were also aware of the graffiti. (Id. at 18). In addition,
Plaintiffs claim it is undisputed that Ian experienced stress in his personal
relationship with Megan as a result of the graffiti. (Id.).
Under the fourth element, whether the discrimination would detrimentally
affect a reasonable person of the same gender, Plaintiffs argue it is undisputed that
they were subjected to at least three (3) separate instances of sexually explicit
graffiti between early 2008 and the summer of 2009. (Id. at 19). They also claim
it is undisputed that the graffiti was severe based on its inherent content. (Id.).
Finally as to the fifth element, the existence of respondeat superior liability,
Plaintiffs argue it is undisputed that the five (5) individuals responsible for
authoring the sexually explicit graffiti were NSR4 employees. They also claim that
management-level employees had actual knowledge of the sexually explicit
graffiti. (Id.). Plaintiffs assert that despite Ian reporting the graffiti to
management employees and his union representative, the graffiti continued to
appear. They also contend that NSC did not commence an informal EEO
complaint concerning the graffiti until Ian reported additional instances of
sexually explicit graffiti. Moreover, Plaintiffs maintain, the graffiti itself was not
properly or timely removed and remained on the property for over six (6) months.
(Doc. 28 at 20).
In response, Defendants contend that Ian and Megan fail to offer any
evidence in support of their motion other than conclusory statements. (Doc. 38 at
7). Concerning the first element, discrimination because of Plaintiffs’ gender,
Defendants argue it is not the gender of the victim or source of the alleged
harassment that is critical to a sexual harassment claim, but rather the victim must
prove that “the conduct at issue was not merely tinged with offensive sexual
While Plaintiffs’ complaint noted that they were both employed by NSR, a subsidiary
of NSC, (see Doc. 1 ¶¶ 16-17), their Statement of Material and Undisputed Facts claims that both
were employees of NSC. (Doc. 27 ¶¶ 1-2). However, Defendants note in their Counter
Statement of Undisputed Material Facts In Opposition to Plaintiffs’ Motion for Summary
Judgment that NSR previously admitted that it, not NSC, employed both Plaintiffs. (Doc. 37
n.2). As we have granted Defendants’ motion for summary judgment, we find it unnecessary to
address the parties’ arguments regarding Plaintiffs’ employment by either NSR, NSC, or both.
connotations, but actually constituted ‘discrimination . . . because of . . . sex.’”
(Doc. 35 at 14 (citing Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 81
(1998))). Defendants highlight the Third Circuit’s decision in Bibby v.
Philadelphia Coca Cola Bottling Company which discussed the three ways a
plaintiff could prove same-sex harassment:
there are several situations in which same-sex harassment can be seen
as discrimination because of sex. The first is where there is evidence
that the harasser sexually desires the victim. . . . Same-sex harassment
might also be found where there is no sexual attraction but where the
harasser displays hostility to the presence of a particular sex in the
workplace. . . . Further, although it is less clear, a plaintiff may be able
to prove that the same-sex harassment was discrimination because of sex
by presenting evidence that the harasser’s conduct was motivated by a
belief that the victim did not conform to the stereotypes of his or her
(Id. at 15 (citing 260 F.3d 257, 262 (3d Cir. 2001))).
Applying Bibby, Defendants maintain, Plaintiffs have provided no evidence
to infer that the sexually explicit graffiti was written in order to sexually harass or
discriminate against Ian for any of the three reasons outlined above. (Doc. 35 at
16). In particular, Defendants emphasize Ian’s deposition in which he testified to
his belief regarding the cause of the graffiti as follows:
Why do you think your coworkers were writing this graffiti
Because I had a pretty girlfriend at the time. I was very – I
don’t know – proud. I really couldn’t tell you. I drove a nice
car, had a pretty girlfriend. I was making – I was doing well at
work. I don’t know. People didn’t like that.
So they were jealous?
I would assume. . . .
(Doc. 34 Ex. A-1 at 89:25-90:9).
Defendants further claim that Ian testified that the content of the grafitti was
not true and to his knowledge, no one at NSR believed it to be true. (Doc. 35 at
17). They also cite the deposition testimony of Ian’s coworkers who stated that
the graffiti was jocular in nature. (Id. (citing Doc. 34 Ex. A-8 at 13:23-14:5; Ex.
A-6 at 38:5-38:17)). Defendants contend that Ian’s coworkers may have posted
graffiti about him out of animosity, because a few coworkers testified that Ian had
a reputation for being cocky, a trouble-maker, and having a bad mouth. (Id. at 18
(citing Doc. 34 Ex. A-8 at 43:22-24; Ex. A-7 at 78:17-80:3; Ex. A-5 at 26:5-25)).
Additionally, Defendants cite a slew of cases highlighting that while
comments or conduct directed toward a coworker may contain vulgar sexual
content or connotations, such actions, without more, do not rise to the level of
discrimination on the basis of sex that would benefit from protection under Title
VII. (Id. at 18-19 (citing Davis v. Coastal Int’l Security, Inc., 275 F.3d 1119, 1126
(D.C. Cir. 2002) (“We find only that however vulgar [Mr.] Smith’s and [Mr.]
Allen’s behavior [when they grabbed his crotch, made kissing gestures, and used a
phrase describing oral sex], no reasonably jury could believe that it constitutes
discrimination [against Mr. Davis] because of sex. To conclude otherwise on the
facts of this case would trivialize the important values protected by Title VII and
elevate a gross workplace dispute into a federal case.”); Vandeventer v. Wabash
Nat’l Corp., 887 F.Sup. 1178, 1181 n.2 (N.D. Ind. 1995) (“while the epithet used
[dick sucker] and the taunting had a ‘sexual’ component, as do most expletives,
the crucial point is that the ‘harasser’ was not aiming expletives at the victim
because of the victim’s maleness.”))). Thus, Defendants maintain, Ian’s claims
concerning the facially sexual content of the graffiti are insufficient to prove that
vulgar comments were directed toward him because of his gender.
As to Megan’s claim, Defendants argue that Plaintiffs fail to present
evidence demonstrating that the discrimination Megan suffered was a result of her
gender. (Doc. 35 at 33 (citing Oncale, 523 U.S. at 78 (noting that a plaintiff
alleging a sexual harassment claim “must always prove that the conduct at issue
was not merely tinged with offensive sexual connotations, but actually constituted
discrimination because of sex”))). In particular, Defendants contend, Megan
testified during her deposition that she believed the likely motivation behind the
graffiti was to make Ian angry. (Id. at 34 (citing Doc. 34 Ex. A-2 at 45:14-16, 20-
23)). Again, Defendants argue that Megan fails to prove that the graffiti
discriminated against her simply because of her gender.
Regarding the second element, the pervasiveness and regularity of the
harassment, Defendants challenge Plaintiffs’ supposition that because the Court
found that the graffiti “could alter the terms and conditions of employment” in
ruling on the motion to dismiss, that the same ruling conclusively establishes the
second element for purposes of summary judgment. (Doc. 38 at 9) (emphasis
added). Defendants maintain that Plaintiffs are conflating the plausibility standard
courts apply in analyzing a 12(b)(6) motion to dismiss, with the absence of a
genuine issue of material fact standard on summary judgment. They contend that
since discovery closed, Plaintiffs fail to offer any evidence that the graffiti
referencing Megan was severe or pervasive. (Id.). Defendants emphasize that
although Megan knew of a single incident of graffiti describing an illicit sexual
relationship between her and her supervisor, Mr. Martinez, she never saw the
graffiti herself. Thus, they argue, Plaintiffs’ claim that Megan was subjected to at
least three instances of graffiti lacks merit.
Moreover, while Defendants admit that graffiti of all types is common at
NSR, they claim that the graffiti at issue here was not sufficiently severe to alter
the terms and conditions of Ian’s employment. (Id. at 10). Defendants note that
the Supreme Court has instructed that “simple teasing, offhand comments, and
[non-serious] isolated incidents . . . would not amount to discriminatory changes in
the terms and conditions of employment.” (Id. (citing Abramson v. William
Paterson College, 260 F.3d 265, 280 (3d Cir. 2001))). Furthermore, Defendants
argue that Ian fails to provide evidence that the graffiti was so severe that it
intended to, or actually did, alter the terms or conditions of his employment.
As to Megan, Defendants claim that Plaintiffs fail to provide evidence that
the alleged harassment was pervasive or regular. Defendants highlight the
Supreme Court’s decision in Faragher v. City of Boca Raton where the Court
noted that in determining whether harassment was severe or pervasive courts must
consider “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating or a mere offensive utterance; and whether it
unreasonably interferes with the employee’s work performance.” 524 U.S. 775,
787-88 (1998). They also contend the Third Circuit has held that humiliating
comments, in and of themselves, do not constitute severe or pervasive harassment.
(Doc. 35 at 36 (citing Hamera v. County of Berks, No. 06-3518, 2007 WL
2745772, *3 (3d Cir. 2007))). Defendants claim Megan testified she was only
made aware of one instance of harassment by Ian, which alleged that she was
having an illicit sexual relationship with her boss, Mr. Martinez. (Id. at 38).
Significantly, Defendants assert, Megan never saw any photos of the graffiti,
talked to coworkers or supervisors about the graffiti, or heard anyone else discuss
the graffiti other than Ian. (Id. at 38-39). Additionally, Defendants note that in
E.G. Austin v. Norfolk Southern Corporation, the Third Circuit held that three
instances of vulgar graffiti, one of which occurred on Norfolk Southern property,
did not constitute severe or pervasive discrimination sufficient to support a cause
of action for sexual harassment. (Id. at 39 (citing E.G. Austin v. Norfolk Southern
Corporation, No. 04-1568, 2005 U.S. App. LEXIS 27298, at *8-9 (3d Cir. Dec.
14, 2005))). Thus, Defendants assert Megan has not proven that the one instance
of graffiti which she was aware of was so severe and pervasive that it altered the
terms and conditions of her employment. (Id. at 40).
As to the third element, the detrimental affect of the discrimination on the
employee, Defendants contend that although Megan alleges she was embarrassed,
emotional, and suffered stress from her knowledge of the graffiti, none of the
record evidence supports this conclusion. (Id. at 12). They also assert that
Plaintiffs fail to present evidence suggesting Ian suffered any detrimental affects
as a result of the graffiti. (Id.). Defendants maintain that the evidence produced
merely demonstrates that graffiti of all types is common in train yards, that graffiti
is a form of “jocularity” among male conductors who work in train yards, and that
Ian was not only subject to graffiti but admitted authoring graffiti about fellow
employees. (Id. at 12-13).
In addition, Defendants assert, Megan fails to demonstrate that the
discrimination detrimentally affected her. (Doc. 35 at 40). To support this
argument, Defendants highlight a portion of Megan’s deposition testimony
wherein she testified as follows:
Did the graffiti, itself, did that interfere with your ability to
perform your job as a train dispatcher?
And the graffiti didn’t interfere with your ability to succeed in
becoming qualified on the various territories as a train
(Doc. 35 at 42 (citing Doc. 35 A-2 at 76:24-77:6)). Moreover, Defendants argue
Megan’s claims that she was humiliated or embarrassed are insufficient to
constitute a detrimental affect because such feelings fail to show that the alleged
discrimination unreasonably interfered with her work performance. (Doc. 35 at 42
(citing Harris, 510 U.S. at 22-23)).
Regarding the fourth element, whether a reasonable person would be
detrimentally affected by the discrimination, Defendants assert that the evidence
actually establishes that a reasonable train conductor in Ian’s position would not
have been detrimentally affected given the prevalence of teasing and “jocularity,”
albeit crude and vulgar, in train yards. (Doc. 38 at 13 ). In support of this
assertion, Defendants cite the deposition testimony of Stewart McGarvey who
stated “[t]here’s not just graffiti about Ian, there’s graffiti about other people . . . .”
and “if a train goes by, almost every car has graffiti on it.” (Id. (citing Doc. 34 Ex.
A-7 at 24:22-25:3; 27:9-11)). They note that Petrewicz also remarked, “guys have
been writing [graffiti] about each other as long as I’m on the railroad . . . I’ve been
on the walls.” (Id. (citing Doc. 34 Ex. A-6 at 38:12-15))
As to Megan, Defendants claim that her knowledge of a single incident of
graffiti at a location several miles from her place of work, which she only learned
of through her fiancé, would not lead a reasonable woman in her position to be
detrimentally affected. (Doc. 35 at 44). They contend that under the
circumstances the graffiti at issue constitutes nothing more than an offensive
utterance and would not produce a detrimental affect. (Id.).
As to the fifth element, Defendants claim that Plaintiffs fail to provide
sufficient evidence to establish respondeat superior liability. (Doc. 38 at 20).
They cite the Third Circuit’s decision in Griffin v. Harrisburg Property Services,
Incorporated for the proposition that “where the harasser is a co-worker, the
employer is not automatically liable [;] . . . employer liability attaches only if the
employer failed to provide a reasonable avenue for complaint, or, alternatively, if
the employer knew or should have known of the harassment and failed to take
prompt and appropriate remedial action.” 2011 LEXIS 7011, at *9 (3d Cir., Apr.
4, 2011). Defendants further contend that an employer will only be held
vicariously liable for the alleged discrimination if the person charged with creating
the hostile work environment is the plaintiff’s supervisor. (Doc. 35 at 21 (citing
Durham Life Ins. Co. v. Evans, 166 F.3d 139, 150 (3d Cir. 1999))). Moreover,
they maintain, the Third Circuit in Andrews v. City of Philadelphia noted that “the
limited ability of employees to direct the work of crews or other small groups of
workers does not equate to a supervisory position for purposes of imputing
liability to the employer.” 895 F.2d 1469, 1482 (3d Cir. 1990). Defendants claim
that according to the Griffin court “an employee’s knowledge could be imputed [to
the employer] where the employee is sufficiently senior in the employer’s
governing hierarchy, or otherwise in a position of administrative responsibility
over employees under him, such as a departmental or plant manager, so that such
knowledge is important to the employee’s general management duties.” Griffin,
2011 LEXIS 7011 at *12.
Here, Defendants argue that because Ian’s coworkers, not supervisors,
authored the graffiti at issue, NSR cannot be held vicariously liable on this claim.
(Doc. 35 at 22). They assert that according to the court in Griffin “when the
harasser is a co-worker, employer liability attaches ‘only if the employer fails to
provide a reasonable avenue for complaint, or, alternatively, if the employer knew
or should have known of the harassment and failed to take prompt and appropriate
remedial action.’” Griffin, 2011 LEXIS 7011 at 10. As to the former, a
reasonable avenue for complaint, Defendants claim that Ian reported the graffiti to
NSR through procedures established pursuant to its EEO policy. (Doc. 35 at 22).
Thus, Defendants argue that the latter inquiry, whether NSR took prompt and
appropriate remedial action, is the only question this Court needs to address. (Id.).
Defendants cite Andreoli v. Gates for the proposition that the timing and nature of
an employer’s response will determine whether the remedial action was
“reasonably calculated to end the harassment.” 482 F.3d at 644.
In particular, Defendants argue that NSR responded promptly to each of
Ian’s reports concerning the graffiti. They claim despite the fact no one was
disciplined immediately after Ian’s reports, the parties acknowledged that the
graffiti was anonymous and required an internal investigation in order to
determine the source of the graffiti. (Id. at 23). Defendants contend that Plaintiffs
fail to explain how NSR’s actions were not prompt or appropriate under the
Regarding Ian’s first complaint about the graffiti, Defendants contend they
immediately removed the graffiti, contacted upper level manager, reiterated via
bulletin NSR’s EEO policy concerning harassment, interviewed crews working
nearby the graffiti, and directed Petrewicz to instruct all union members to stop
writing graffiti. (Doc. 35 at 26-27). As a result, Defendants highlight, Ian
followed up with Moore and informed him that he was satisfied with the remedial
action taken, that it had the desired effect, and that he did not wish to press the
issue further. (Id.).
Following Ian’s second report of graffiti on May 12, 2008, Defendants
claim that Moore reported the issue to management, interviewed the west end
crews, notified the Norfolk Southern Police, painted over the graffiti, and
commenced a formal internal investigation. (Id. at 27-28). Specifically, NSR
painted over the graffiti on May 19, 2008 and interviewed twelve individuals
concerning the graffiti between May 12, 2008 and June 18, 2008. (Id.).
Defendants assert that on June 19, 2008, handwriting samples were forwarded to
Cina Wong, a handwriting expert, for analysis.
After graffiti was discovered a third time on July 11, 2008, Defendants
claim that Moore photographed the graffiti, forwarded the images to NSR’s EEO
Department to be added to the file for Wong to analyze, and issued another
bulletin to NSR employees emphasizing the company EEO policy and stressing
compliance with it. (Id. at 28-29). Defendants highlight that the individuals
identified by Wong’s report were charged with “conduct unbecoming an
employee; defacing company property and engaging in harassment. . . .” (Id.). In
addition, although a hearing was initially scheduled for the week of October 10,
2008, Petrewicz, the union representative for the five suspects, requested that the
hearing be postponed numerous times due to preplanned vacations arranged by the
five employees and other scheduling conflicts. Thus, Defendants argue, any delay
in conducting the hearing for these individuals was not the fault of NSR.
Following a fourth incident of graffiti, reported on March 11, 2009, NSR
photographed the graffiti and painted over it the same day. One of two NSR
employees interviewed about the graffiti recalled observing it in 2008. (Id. at 2930). Consequently, Defendants contend, Moore conducted several special EEO
training sessions addressing the graffiti. NSR also held an investigative hearing
on March 11, 2009 for the five suspects, and each was assessed thirty (30) days
deferred suspension as noted above. (Id.). In sum, Defendants contend they took
prompt action reasonably calculated to prevent further harassment. We agree with
After extensive review of the record and applicable law, we find that
Plaintiffs fail to offer any evidence beyond mere conclusory, self-serving
statements to support their hostile work environment claim. See Jones v. United
Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000) (noting that the non-moving party
“cannot rely on unsupported allegations, but must go beyond pleadings and
provide some evidence that would show that there exists a genuine issue for
trial.”). Concerning the first element of Plaintiffs’ hostile work environment
claim, intentional discrimination because of sex, we find that although Plaintiffs
allege that the graffiti described sexually explicit conduct between Plaintiffs and
between Plaintiffs and other third parties, they have failed to demonstrate that they
were the targets of such discrimination because of their respective genders. As the
Supreme Court stated in Oncale v. Sundowner Offshore Services, Incorporated, a
victim claiming sexual harassment must prove that “the conduct at issue was not
merely tinged with offensive sexual connotations, but actually constituted
‘discrimination . . . because of . . . sex.’” 523 U.S. 75, 81 (1998).
In addition, we find that Plaintiffs fail to prove that any of the graffiti
pertaining to Ian was written because the harasser sexually desired him, the
harasser displayed hostility to the presence of Ian’s sex in the workplace, or
because the harasser believed that Ian did not conform to the stereotypes of his
gender. See Bibby, 260 F.3d at 262. In fact, we find Ian and Megan’s candid
deposition testimony, that the authors of the graffiti were either jealous or felt
some animosity toward to Ian, to be indicative of what was likely the actual
motivation behind the graffiti. (See Doc. 34 Ex. A-1 at 89:25-90:9; Ex. A-2 at
45:14-16). Also, we agree with Defendants that although the graffiti directed
toward Plaintiffs included vulgar sexual content or connotations, such content,
without more evidence that the graffiti was so pervasive as to create an
intimidating, hostile, or offensive work environment, see Andrews, 895 at 1482,
does not rise to the level of discrimination on the basis of sex that would offend
As to the second element, the pervasiveness and regularity of the
harassment, the Supreme Court in Harris v. Forklift Systems, Incorporated noted
that in determining whether harassment was severe or pervasive, courts must
consider “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating or a mere offensive utterance; and whether it
unreasonably interferes with the employee’s work performance.” 510 U.S. at 23;
see also Jensen v. Potter, 435 F.3d 444, 452 (3d Cir. 2006) (finding that severe
and pervasive harassment existed due to the “pounding regularity” of “retaliatory
insults two to three times per week for 19 months,” physical threats, and property
damage to the plaintiff’s vehicle.).
While we previously found that such graffiti could alter the terms and
conditions of employment, it was up to Plaintiffs at this, the summary judgment
stage, to present sufficient evidence that the graffiti rose to the level of severe
discrimination that altered the terms and conditions of employment. Although we
earlier found that the graffiti in this instance “is an inherently public display which
is permanent until removed, and, when compared with the fleeting nature of
offensive oral remarks, seems to this Court to be a more severe form of
discrimination,” it was nevertheless Plaintiffs’ burden to prove that the graffiti was
so severe and pervasive that it in fact altered the terms and conditions of Plaintiffs’
respective employment. Plaintiffs have failed to carry that burden.
In particular, although Megan knew of a single incident describing an illicit
sexual relationship between her and her supervisor, it is notable that Megan never
saw the graffiti for herself. Furthermore, although we acknowledge Defendants’
concession that graffiti in general is pervasive at NSR, we find that Megan’s
knowledge of one instance of sexually explicit graffiti, without even observing it
firsthand, fails to satisfy the pervasive and regular element of this claim. Ian
likewise fails to demonstrate that the pervasiveness and severity of the graffiti
amounted to more than mere humiliating comments, which in and of themselves
do not constitute severe or pervasive harassment. See Hamera v. County of Bucks,
No. 06-3518, 2007 WL 2745772,, *3 (3d Cir. 2007).
Considering the totality of the circumstances, it appears that the graffiti
appeared on at least four separate occasions between April 5, 2008 through March
11, 2009. (Doc. 27 ¶¶ 22, 33, 34; Doc. 33 ¶¶ 32, 40, 46, and 56). Although vulgar
and humiliating, we fail to see how four separate incidents of graffiti reported over
an almost one year period constitutes frequent harassment or discrimination.
Moreover, although Plaintiffs maintain it was humiliating, they fail to allege that
the alleged discrimination against either of the Plaintiffs involved physical threats,
or, that the graffiti was more than merely offensive. See Harris, 510 U.S. at 23.
Regarding the third element, the detrimental affect of the discrimination on
the employee, we find that although Plaintiffs contend that Megan suffered
embarrassment and stress from her knowledge of the graffiti, Plaintiffs provide no
evidence to support this assertion. We find the following portion of Megan’s
deposition testimony to be illustrative of Plaintiffs’ failure to establish this
element. Megan testified as follows:
Did the graffiti, itself, did that interfere with your ability to perform
your job as a train dispatcher?
And the graffiti didn’t interfere with your ability to succeed in
becoming qualified on the various territories as a train dispatcher?
(Doc. 35 at 42 (citing Doc. 35 A-2 at 76:24-77:6)). Similarly, Ian and Megan both
fail to provide any evidence concerning the detrimental affect the graffiti had upon
them, other than to allege that they were embarrassed or humiliated. Furthermore,
the conclusory allegations they provide in support of summary judgment fail to
demonstrate that the graffiti unreasonably interfered with their work performance.
See Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000) (stating that
the non-moving party “cannot rely on unsupported allegations, but must go
beyond pleadings and provide some evidence that would show that there exists a
genuine issue for trial.”).
As to the fourth element, whether a reasonable person would be
detrimentally affected by the discrimination, the pervasiveness and regularity of
graffiti of all types tends to establish that a reasonable train conductor in Ian’s
position would not have been detrimentally affected by the teasing, despite its
crude and vulgar nature. The deposition testimony of Stewart McGarvey
illustrates how another person in Ian’s position was affected by graffiti at the NSR
train yards. He stated “[t]here’s not just graffiti about Ian, there’s graffiti about
other people. . . “ and “if a train goes by, almost every car has graffiti on it.” (Doc.
34, Ex. A-7 at 24:22-25:3; 27:9-11). We also find Petrewicz’s statement, “guys
have been writing [graffiti] about each other as long as I’m on the railroad . . . I’ve
been on the walls,” to illustrate how a reasonable train conductor in Ian’s position
may have been affected by the graffiti. (Id., Ex. A-6 at 38:12-15). Concerning
Megan, we fail to see how a reasonable person would be detrimentally affected
after learning of a single instance of offensive graffiti at a location a few miles
away without ever observing it personally. See Abramson v. William Paterson
College, 260 F.3d 265, 280 (3d Cir. 2001) (“simple teasing, offhand comments,
and [non-serious] isolated incidents . . . would not amount to discriminatory
changes in the terms and conditions of employment.”).
Finally, as to the fifth element, we note that “employer liability for coworker harassment exists only if the employer failed to provide a reasonable
avenue for complaint or, alternatively, if the employer knew or should have known
of the harassment and failed to take prompt and appropriate remedial action.”
Huston v. P&G Paper Prods. Corp., 568 F.3d 100, 104 (M.D. Pa. 2009). In
Griffin v. Harrisburg Property Services Incorporated the Third Circuit stated:
an employee’s knowledge could be imputed [to the employer] where the
employee is sufficiently senior in the employer’s governing hierarchy,
or otherwise in a position of administrative responsibility over
employees under him, such as a departmental or plant manager, so that
such knowledge is important to the employee’s general management
2011 U.S. App. LEXIS 7011, at *9 (3d Cir., Apr. 4, 2011).
In the case sub judice, we find that NSR provided a reasonable avenue for
complaint and that Plaintiffs availed themselves of these internal procedures
pursuant to NSR’s EEO policy. As to the next question, whether NSR failed to
take prompt and appropriate remedial action, we find that NSR’s investigations,
hearings, and disciplinary actions were all “reasonably calculated to end the
harassment.” Andreoli, 482 F.3d at 644. Both parties recognize that the
anonymous nature of the graffiti required an initial investigation into the source
thereof. As a result, we find NSR’s actions to have been prompt under the
After Ian reported the graffiti to NSR management, the company performed
an internal investigation that involved interviewing employees working near the
location of the graffiti, photographing the graffiti, hiring an independent
handwriting expert to analyze handwriting samples and compare them to the
graffiti, and conducting an investigatory hearing. (Doc. 33 ¶¶ 33-39; 41-45; 4748; 49-51; 56-64). NSR also reviewed with employees its EEO policy,
specifically the provisions dealing with harassment, following each of Plaintiffs’
reports, and subsequently painted over the offending graffiti after the same was
properly documented or photographed. (Id.). In addition, Petrewicz also
addressed UTU members and instructed them to stop writing graffiti. (Doc. 33 ¶
In determining whether NSR took prompt and appropriate remedial action,
we find the Third Circuit’s decision in Austin v. Norfolk Southern Corporation to
be instructive. 2005 U.S. App. LEXIS 27298, at *7-8 (3d Cir., Dec. 14, 2005). In
that case, the court found that a jury could not reasonably conclude that the
defendant employer failed to take corrective action when (1) supervisors met
frequently with plaintiff; (2) the company posted notices regarding its sexual
harassment policy; (3) the company interviewed employees plaintiff identified as
suspects; (4) supervisors included sexual harassment training in its safety
meetings; (5) the company inspected locomotives for graffiti and removed graffiti;
and (6) the company asked local union representative to address graffiti with
union’s members. We find the remedial action taken by Norfolk Southern
Corporation in Austin to be strikingly similar to the steps taken in this case.
Moreover, we reiterate that Plaintiffs have provided nothing but conclusory
statements to support their contention that NSR’s remedial actions were less than
prompt. Therefore, Plaintiffs have failed to carry their burden and demonstrate
that there is no genuine issue of material fact in support their motion for summary
judgment. On the other hand, Plaintiffs’ same conclusory allegations likewise fail
to raise a genuine issue of material fact in opposition to Defendants’ motion for
summary judgment. Therefore, we shall grant Defendants’ motion for summary
judgment on both of Plaintiffs’ hostile work environment claims.
Count II: Retaliation
Defendants also move for summary judgment on Count II of Plaintiffs’
complaint, which alleges a claim for retaliation under Title VII. (Doc. 1 at 8). In
support thereof, Defendants contend that following Ian’s complaints concerning
the graffiti, NSR legitimately disciplined him for multiple violations of company
policy. (Doc. 35 at 45). They note that to prove a prima facie case of retaliation
under Title VII and the PHRA, a plaintiff must prove the following: (1) he
engaged in protected conduct; (2) an adverse action was taken; and (3) there is a
casual link between the protected conduct and the adverse action. (Id. at 46 (citing
Gladysiewski v. Allegheny Energy, 398 Fed. Appx. 721, 723, 2010 WL 3622446,
*2 (3d Cir. 2010))). Defendants contend that Ian lacks the third element required
to establish a prima facie case for retaliation. They claim that Ian must establish
that NSR treated similarly situated persons, not engaged in the protected activity,
more favorably than him. (Id. at 46-47 (citing Simpson v. Kay Jewelers, Div. Of
Sterling, Inc., 142 F.3d 639, 644-45 (3d Cir. 1998))).
In support of their contention, Defendants highlight the disciplinary actions
taken against Ian. First, they claim that Ian was disciplined after he accepted
responsibility for posting graffiti on October 27, 2008 that stated “Dorson is gay.”
(Id. at 47). Ian received thirty (30) days deferred suspension for this action.
Defendants claim that in the Third Circuit, in order to establish a causal link
between the protected activity and adverse employment action the temporal
proximity between the two actions must be “unusually suggestive.” (Id. at 48
(citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000))).
The second disciplinary action against Ian occurred on December 8, 2008 as
a result of a series of text messages exchanged between Ian and Ollie Hopkins.
(Id.). Defendants claim that on December 10, 2008, after Moore examined the
exchange of messages, both men were charged with “conduct unbecoming an
employee and making threatening remarks.” Following a hearing, Ian and
Hopkins were found guilty of these charges and assessed thirty (30) days deferred
suspension. As a result of Ian’s previous thirty (30) days deferred suspension, this
incident triggered an actual suspension of sixty (60) days. However, Defendants
maintain that the sixty (60) day suspension followed from strict application of the
thirty (30) days deferred suspension’s probationary period, and was not assessed
against Ian in retaliation for reporting the sexual harassment. (Id. at 49). Thus,
although Ian claims the second punishment of thirty (30) days deferred suspension
was excessive, because other NSR employees who behaved similarly were not
subject to such discipline, Defendants assert that Ian fails to identify similarly
situated employees who were not assessed thirty (30) days deferred suspension for
making threatening remarks. (Id.).
The incident resulting in Ian’s third disciplinary action took place on July
31, 2009 when a supervisor at the Enola Yard observed Ian conducting a
dangerous maneuver in a company vehicle. (Id. at 51). The supervisor witnessed
Ian driving in reverse at a high rate of speed, thirty-six (36) miles per hour, for a
prolonged distance. When asked why he operated a company vehicle in this
fashion, Ian responded, “because I am capable of doing so.” (Id. at 52).
Defendants contend that NSR takes speeding seriously, and other eye witnesses
testified that the charge against Ian was justified. On August 7, 2009, a hearing
was held concerning this incident and Ian was found guilty of “engaging in unsafe
work practices” and was subsequently terminated from employment with NSR.
(Id.). Again, Defendants maintain that despite Ian’s claim that the punishment was
excessive, he fails to identify any other NSR employees who have been found
guilty of engaging in unsafe work practices but were not terminated from
employment. Thus, Defendants claim, Ian fails to prove that he was terminated in
retaliation for reporting the graffiti. (Id. at 52-53).
Alternatively, Defendants argue that were the Court to find that Ian has
established a prima facie retaliation claim, Ian nevertheless fails to satisfy the
second and third prongs of the McDonnell Douglas burden-shifting framework.
(Id. at 53). They note that the second prong of McDonnell Douglas requires the
employer to “articulate some legitimate, nondiscriminatory reason for the [adverse
employment action].” (Id. (citing Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797
(3d Cir. 2003))). Defendants note that Ian’s acts of indiscretion at NSR clearly
violated company policy and resulted in appropriate discipline for those actions.
Moreover, they highlight that any discipline for Ian’s actions came after a full
investigation and hearing at which Ian had union representation, numerous
witnesses testified, and a neutral Hearing Officer weighed the credibility of the
evidence presented. (Id. at 54).
Furthermore, Defendants contend that Ian fails to provide sufficient
evidence to prove that Defendants’ legitimate, non-discriminatory reason for his
discipline was a pretext for discrimination. (Id. at 54-55 (citing Fuentes v.
Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (noting that in refuting an employer’s
legitimate, nondiscriminatory reasons, plaintiff must “demonstrate weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions.”))). To support
this contention, they highlight the deposition testimony of Dave Zumbro, Jeff
Moore, Don Craine, and Gary Petrewicz who testified to the legitimate,
nondiscriminatory rationale for disciplining Ian. (Id. at 55-56). In addition to
other NSR supervisors who testified similarly, Fennell provided the following:
Did Norfolk Southern decide to pursue disciplinary action against
Ian with regard to any of these incidents we discussed because he
had previously filed the graffiti complaint?
. . . Are you aware of whether Norfolk Southern retaliates against
employees who file workplace complaints?
Alright, Norfolk Southern has never retaliated. We don’t. That’s
not a part of who we are. And in this case specifically, there was
no retaliation against Mr. Donaldson at any point in time.
(Id. at 56 (citing Doc. 34 Ex. A-5 at 46:21-47:25, 47:14-24)).
Defendants also cite the deposition testimony of Petrewicz, the union
representative who defended Ian at both of his formal investigative hearings, who
Do you think [Ian] was retaliated against by his co-workers for filing
(Id. at 56-57 (citing Doc. 34 Ex. A-6 at 56:21-23)).
Thus, Defendants argue, the record evidence demonstrates that the
disciplinary actions taken against Ian were caused by his own misconduct and
were wholly unrelated to his reports of graffiti or the EEOC complaints filed by
him and his wife. (Id. at 57).
In opposing summary judgment, Plaintiffs contend that Ian was subjected to
“relentless retaliation” from coworkers and supervisors at NSR, and that he was
verbally and physically threatened for reporting the incidents of graffiti. (Doc. 41
at 21). As to the disciplinary action Ian received after the incident with Olli
Hopkins, Megan testified that she heard similar or even more threatening remarks
made by other management level employees who experienced no adverse
employment action as a result of the same. (Id. at 22). In particular, Megan
claims she observed Don Craine enter the dispatch office and say “where’s Mike?
If he left, I’ll kill him. I’ll slit his throat.” (Id.). Plaintiffs contend that Craine’s
statements did not result in any adverse employment action.
Similarly, Ian asserts he witnessed other employees driving company
vehicles in reverse in the same manner he was driving, but without any adverse
employment repercussions. Plaintiffs also contend that Ian was retaliated against
for following NSR policy and reporting a potential trespasser in a restricted area,
who turned out to be an NSR supervisor. (Id. at 23). A Mr. McGarvey testified
that Ian would not have been “written up” for this violation if he had not reported
a supervisor the day before for trespassing. (Id.).
Here, we find that Plaintiffs fail to raise a genuine issue of material fact in
opposition to Defendants’ motion for summary judgment on Ian’s retaliation
claim. In Moore v. City of Philadelphia, the Third Circuit stated:
to establish a prima facie case of retaliation under Title VII, a plaintiff
must tender evidence that: (1) she engaged in activity protected by Title
VII; (2) the employer took an adverse employment action against her;
and (3) there was a causal connection between her participation in the
protected activity and the adverse employment action.
461 F.3d 331, 340-41 (3d Cir. 2006). As the parties do not contest that Plaintiffs
were engaged in activity protected by Title VII, or that Ian suffered adverse
employment action, it appears that the only element in dispute is whether there
was a causal connection between Ian’s participation in the protected activity and
the adverse employment action he suffered.
Again, we find that Plaintiffs provide nothing to oppose summary judgment
but conclusory statements contained in their pleadings and briefs. See Jersey
Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985)
(noting that arguments made in briefs “are not evidence and cannot by themselves
create a factual dispute sufficient to defeat a summary judgment motion.”).
Additionally, they fail to provide any evidence suggesting that the disciplinary
action taken against Ian was initiated in retaliation for his reports of the graffiti. In
fact, as to each of the incidents for which Ian was disciplined he admitted to the
misconduct at issue, such as posting the “Dorson is gay” graffiti, the exchange of
text messages between himself and Ollie Hopkins, and driving a company vehicle
in reverse at a high rate of speed. Thus, we find Ian’s admissions to these
violations of NSR policy to contradict any allegation that NSR sought to retaliate
against him for reporting the graffiti when it disciplined and subsequently
terminated his employment with the company.
Accordingly, we find that Ian has failed to raise a genuine issue of material
fact concerning his failure to plead a prima facie retaliation claim. Despite the fact
this finding is dispositive of Plaintiffs’ retaliation claim, we note that even if we
had found that Ian established the requisite elements, Defendants’ discipline of Ian
for misconduct that violated NSR policy constitutes a legitimate,
nondiscriminatory rationale for the adverse employment action. Furthermore,
notwithstanding Megan’s claim that she overheard an NSR employee make
threatening remarks without receiving punishment, and Ian’s contention that other
employees drove company vehicles in reverse at high rates of speed without being
disciplined, we fail to see how such unsubstantiated allegations create
“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions”
that negate, as mere pretext for retaliatory animus, Defendants’ legitimate,
nondiscriminatory rationale in disciplining Ian for conduct that violated NSR
policy. See Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (noting that in
refuting an employer’s legitimate, nondiscriminatory reasons, plaintiff must
“demonstrate weaknesses, implausibilities, inconsistencies, incoherencies, or
Therefore, we shall grant Defendants’ motion for summary judgment on
Plaintiffs’ retaliation claim.
It is readily apparent that rail yards, such as NSR’s, can be tough places to
work. Clearly, those who decide to earn a living there must develop thick skins, as
the daily environment may feature rude, crude, and offensive behaviors of the
types uncovered here. However, it is axiomatic that while these behaviors may be
as gross as they are lamentable, they fail to support Plaintiffs’ various claims.
For the reasons stated above, we shall deny Plaintiffs’ Motion for Summary
Judgment, (Doc. 26), and grant Defendants’ Motion for Summary Judgment.
(Doc. 32). An appropriate Order follows.
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
IAN D. DONALDSON and
NORFOLK SOUTHERN RAILWAY, CO., :
and NORFOLK SOUTHERN CO.,
Hon. John E. Jones III
August 15, 2011
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
Plaintiffs’ Motion for Summary Judgment (Doc. 26) is DENIED.
Defendants’ Motion for Summary Judgment (Doc. 32) is
The clerk is instructed to CLOSE this case.
s/ John E. Jones III
John E. Jones III
United States District Judge
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