Alverez v. Sears Holdings Corp. et al

Filing 48

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION 42 of Magistrate Judge Methvin w/ exception of rec that ct deny summ jdgmt on pltf's hostile work environment claim, GRANTING defts' MSJ 27 on pltf's hostile work environment claim, DENYING defts' MSJ 27 in all other respects, & noting trial schedule shall issue by separate order. (See memo & order for complete details.)Signed by Honorable Christopher C. Conner on 3/29/13. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MARTIN ALVAREZ,
Plaintiff
v.
SEARS HOLDING CORP., KMART
CORPORATION, JAMES HALL and
ERIN ROAT,
Defendants

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CIVIL ACTION NO. 1:11-CV-783
(Judge Conner)

MEMORANDUM
Presently before the court are defendants’ objections (Doc. 45) to the Report and
Recommendation of United States Magistrate Judge Mildred E. Methvin (Doc. 42). With
the exception set forth below, the court finds that Judge Methvin’s analysis is thorough
and well-reasoned, and that the pending objections are without merit and squarely
addressed by Judge Methvin’s Report.1
The court parts company with Judge Methvin only with respect to plaintiff’s claim
of hostile work environment. The evidence of record is devoid of any “discriminatory
intimidation, ridicule [or] insult” permeating the work environment. Meritor Savings
Bank v. Vinson, 477 U.S. 57, 65 (1986). To the contrary, the record reflects a single

1

Where objections to a magistrate judge’s report and recommendation are
filed, the court must perform a de novo review of the contested portions of the
report. Supinski v. United Parcel Serv., Civ. A. No. 06-0793, 2009 WL 113796, at *3
(M.D. Pa. Jan. 16, 2009) (citing Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir.
1989); 28 U.S.C. § 636(b)(1)(c)). “In this regard, Local Rule of Court 72.3 requires
‘written objections which . . . specifically identify the portions of the proposed
findings, recommendations or report to which objection is made and the basis for
those objections.’” Id. (citing Shields v. Astrue, Civ. A. No. 07-417, 2008 WL
4186951, at *6 (M.D. Pa. Sept. 8, 2008)).

incident—in which the plaintiff was apparently asked to “bring tacos”—that may
reasonably be construed as evidencing overt discrimination. Significantly, plaintiff
testified that no one ever said anything to him about his race and that the taco request
was an isolated incident:
Q:
A:
Q:
A:

But no one ever said anything specifically to you about your
race?
No.
Apart from [the taco] comment that you addressed, did anyone
make any other comments similar to that?
No.

(Doc. 29-1, p. 58, lines 1-7).
The record also reflects a few incidents of facially neutral actions that plaintiff
aggregates to form a hostile work environment, including: poor performance reviews,
receiving discipline for an infraction he did not commit, and being reprimanded in front
of other employees. These few incidents over a three year period of employment, added
to a single incident of overt discriminatory conduct, do not, as a matter of law, meet the
requirements of a hostile work environment. See Faragher v. Boca Raton, 524 U.S. 775,
787 n.1 (1998) (noting that harassment must be more than episodic, but must be
continuous and concerted in order to be considered pervasive). “[I]solated or sporadic
comments, or comments that are part of casual conversation, do not violate Title VII”,
rather, “there must be a steady barrage of opprobrious racial comments.” Doty v. Pike
County Correctional Facility, 2006 WL 2850632, at *11 (M.D. Pa. Oct. 3, 2006) (citing
Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990) and Harris v. Forklift

2

Sys. Inc., 510 U.S. 17, 23 (1993), and quoting Bolden v PRC, Inc., 43 F.3d 545, 551 (10th
Cir. 1994)).
Accordingly, the court will adopt the Report and Recommendation of Judge
Methvin, with the exception of her recommendation on the hostile work environment
claim. The court will grant defendant’s motion for summary judgment on this claim.
An appropriate order will issue.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
Dated:

March 29, 2013

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MARTIN ALVAREZ,
Plaintiff
v.
SEARS HOLDING CORP., KMART
CORPORATION, JAMES HALL and
ERIN ROAT,
Defendants

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:
:
:
:
:
:

CIVIL ACTION NO. 1:11-CV-783
(Judge Conner)

ORDER
AND NOW, this 29th day of March, 2013, upon consideration of the Report and
Recommendation of United States Magistrate Judge Mildred E. Methvin (Doc. 42),
recommending that defendants’ motion for summary judgment (Doc. 27) be denied, and,
following an independent review of the record, and noting that defendants filed
objections to the report (Doc. 45) on February 6, 2013, it is hereby ORDERED that:
1.

The Report and Recommendation of Magistrate Judge Methvin (Doc. 42)
are ADOPTED, with the exception of her recommendation that the court
deny summary judgment on plaintiff’s hostile work environment claim.

2.

Defendants’ motion for summary judgment (Doc. 27) on plaintiff’s hostile
work environment claim is GRANTED.

3.

In all other respects, defendants’ motion for summary judgment (Doc. 27) is
DENIED.

4.

A trial schedule shall issue by separate order.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge