Hileman v. Penelec/First Energy Corporation

Filing 43

MEMORANDUM (Order to follow as separate docket entry) re: 29 MOTION for Summary Judgment filed by Penelec/First Energy Corporation. (See memo for complete details.) Signed by Chief Judge Christopher C. Conner on 6/27/17. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROSALYN A. HILEMAN,
Plaintiff
v.
PENELEC/FIRSTENERGY
CORPORATION,
Defendants

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CIVIL ACTION NO. 1:14-CV-1771
(Chief Judge Conner)

MEMORANDUM
Plaintiff Rosalyn A. Hileman (“Hileman”) commenced this action against her
former employer asserting claims of gender and race discrimination and retaliation
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. (See
Doc. 1). Defendants seek summary judgment on each of Hileman’s claims pursuant
to Federal Rule of Civil Procedure 56. (Doc. 29).
I.

Factual Background & Procedural History1
Hileman began her employment with defendant Penelec (“Penelec”) in 1982,

when she was hired as a teller at its Lewistown, Pennsylvania facility. (Doc. 30 ¶ 1;
1

Local Rule 56.1 requires that a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise
statement of the material facts, in numbered paragraphs, as to which the moving
party contends there is no genuine issue to be tried.” LOCAL RULE OF COURT 56.1.
A party opposing a motion for summary judgment must file a separate statement
of material facts, responding to the numbered paragraphs set forth in the moving
party’s statement and identifying genuine issues to be tried. Id. Unless otherwise
noted, the factual background herein derives from the parties’ Rule 56.1 statements
of material facts. (See Docs. 30, 37). To the extent the parties’ statements are
undisputed or supported by uncontroverted record evidence, the court cites
directly to the statements of material facts.

Doc. 37 ¶ 1).2 In 1986, Hileman transferred to Penelec’s Huntingdon, Pennsylvania
location, where she assumed the role of “utility worker.” (Doc. 30 ¶ 3; Doc. 37 ¶ 3).
At all times relevant to this matter, Thomas Bolinger (“Bolinger”) was Hileman’s
direct supervisor. (See Doc. 30 ¶ 4; Doc. 37 ¶ 4).
A.

Hileman’s Initial Employment

Hileman was a member of the Utility Workers Union of America Local 180
(“the Local 180”) throughout her tenure with Penelec. (Doc. 30 ¶ 24; Doc. 37 ¶ 24).
A collective bargaining agreement negotiated between Penelec and the Local 180
governed employee pay rates. (Doc. 30 ¶¶ 25-27; Doc. 37 ¶¶ 25-27). In 1985, Penelec
and the Local 180 established the utility worker position by merging then-existing
crew clerk, operating clerk, and district storekeeper job descriptions. (Doc. 30 ¶ 28;
Doc. 37 ¶ 28). A memorandum of understanding executed between Penelec and the
Local 180 set compensation for employees hired to the new position at a lower rate
than those working as operating clerks. (Doc. 30 ¶ 30; Doc. 37 ¶ 30; see also Doc. 3113). Penelec planned to replace operating clerks with lower-paid utility workers as
operating clerks retired. (Doc. 30 ¶ 31; Doc. 37 ¶ 31).
Hileman took objection to Penelec’s practice in this regard. Hileman
believed that Penelec should have posted a “hybrid” utility worker position upon
2

Hileman’s complaint identifies “Penelec/FirstEnergy Corporation” as a
single defendant. (See Doc. 1 ¶ 2). The Rule 56 record reveals that Penelec and
FirstEnergy Corporation are separate legal entities: Penelec is the trade name for
“Pennsylvania Electric Company,” (Doc. 30 at 1 n.1), and FirstEnergy Corporation
is the parent holding company of Penelec, (id. ¶ 2). We refer to the defendants as
“Penelec” and “FirstEnergy” herein. This convention is stylistic in nature and shall
not be construed as accepting or rejecting Hileman’s argument that both entities
are in fact a “single employer” for liability purposes. (See Doc. 36 at 46-48).
2

each operating clerk’s retirement, to be compensated at a rate higher than utility
workers but lower than operating clerks. (Doc. 30 ¶ 32; Doc. 37 ¶¶ 31-32). Hileman
alternatively believed that, at minimum, utility workers should be compensated at
the operating clerk rate when performing operating clerk job duties. (Doc. 30 ¶ 33;
see Doc. 37 ¶ 33). Hence, when an operating clerk at the Huntingdon facility retired
in 2005, Hileman began modifying her timesheets to reflect a higher pay rate when
performing the retired clerk’s duties. (Doc. 30 ¶¶ 33, 35-36; Doc. 37 ¶¶ 33, 35-36).
Hileman submitted these timesheets until approximately January of 2008, when
management discovered her unauthorized practice and ordered her to stop
unilaterally upgrading her pay rate. (Doc. 30 ¶ 37; Doc. 37 ¶ 37).
Hileman filed a complaint with the Pennsylvania Human Relations
Commission (“PHRC”) on July 8, 2008, alleging that Penelec discriminated against
her on the basis of race when it required her to reduce her pay to the utility worker
rate for all work performed and failed to post the “hybrid position” she anticipated.
(Doc. 30 ¶¶ 39-40; Doc. 37 ¶¶ 39-40). She dual-filed her complaint with the Equal
Employment Opportunity Commission (“EEOC”). (Doc. 31-15 ¶ 25; see also Doc. 30
¶ 43; Doc. 37 ¶ 43). Hileman received right-to-sue letters from both agencies but did
not file suit. (Doc. 30 ¶ 43; Doc. 37 ¶ 43).
On February 10, 2010, Hileman filed an internal complaint with Penelec’s
human resources department raising an assortment of claims. (Doc. 30 ¶ 44; Doc. 37
¶ 44). Hileman contended that she suffered race and gender discrimination on four
occasions: first, when Robbie Spencer (“Spencer”), a Caucasian woman, received a
raise to Hileman’s pay rate without receiving proper training; second, when Penelec
3

disciplined Hileman for changing a timesheet to reflect paid sick leave instead of
unpaid sick leave; third, when management failed to remove a “sexually oriented”
calendar posted by male employees; and fourth, when management failed to post a
“hybrid position” or authorize increased pay rates for utility workers performing
operating clerk duties (a reprise of the 2008 PHRC complaint). (Doc. 30 ¶ 44; Doc.
37 ¶ 44). The record is vague as to whether or how the internal complaint resolved.
Except for the dispute appertaining operating clerk duties, Hileman did not pursue
this complaint with the PHRC or EEOC. (Doc. 30 ¶ 53; Doc. 37 ¶ 53).
B.

Hileman’s Termination

Throughout the course of her employment, Hileman worked in the same
office area as Spencer, who was employed as a utility worker-floater, and Lea Ann
Wray (“Wray”), a Caucasian woman employed as a customer service clerk. (Doc. 30
¶ 5; Doc. 37 ¶ 5). The office space included a radio which connected to the facility’s
public announcement system. (Doc. 30 ¶ 54; Doc. 37 ¶ 54).
On December 2, 2010, Hileman returned to her desk after lunch and was
preparing to take medication with a cup of juice. (See Doc. 30 ¶¶ 56, 62; Doc. 37
¶¶ 56, 62). When Hileman arrived at her desk, she discovered that the radio had
been turned off. (Doc. 30 ¶ 56; Doc. 37 ¶ 56). Hileman asked Spencer why the radio
was off, and Spencer said that Bolinger (their mutual supervisor) turned it off to
concentrate on his work. (Doc. 30 ¶ 57; Doc. 37 ¶ 57). Spencer added that she too
had difficulty concentrating with the radio turned on. (Doc. 30 ¶ 58; Doc. 37 ¶ 58).
Hileman rejoined by suggesting that Spencer and other employees disturbed her
concentration by “carrying on” and “laughing loud” in the shared office space.
4

(Doc. 30 ¶ 59; Doc. 37 ¶ 59). Wray joined the conversation and concurred with
Spencer’s opinion. (Doc. 30 ¶ 60; Doc. 37 ¶ 60). Bolinger witnessed the dispute
unfold from his office doorway. (Doc. 37 ¶ 60).
Hileman attempted to deescalate the situation by walking away. (Doc. 30
¶ 61; Doc. 37 ¶ 61). Wray then taunted Hileman, stating “you think you can just
walk away from everything” as Hileman walked off. (Doc. 30 ¶ 61; Doc. 37 ¶ 61).
The parties dispute what transpired next. According to defendants, Hileman
turned around and “threw her cup of juice all over Spencer.” (Doc. 30 ¶ 63).
Hileman denies throwing the cup “directly at Spencer.” (Doc. 37 ¶ 63). She insists
that she threw the cup toward the floor and that the juice “splattered up and onto
Spencer.” (Id.) In any event, the parties agree that juice ended up on Spencer.
(Doc. 30 ¶ 63; Doc. 37 ¶ 63; see Docs. 31-19 to -21). Spencer shouted that she had
been “assaulted” by Hileman, and Bolinger intervened before the situation could
further devolve. (Doc. 30 ¶¶ 64-65; Doc. 37 ¶¶ 64-65). Bolinger, Hileman, Spencer,
and Wray each drafted written statements describing the incident before Bolinger
dismissed Hileman for the day. (Doc. 30 ¶¶ 66-67; Doc. 37 ¶¶ 66-67). Spencer
thereafter informed Bolinger that she feared for her “personal safety” as a result
of the altercation. (Doc. 30 ¶ 68; Doc. 37 ¶ 68).
Bolinger and a representative from the Local 180 interviewed Hileman
concerning the incident the following day. (Doc. 30 ¶ 69; Doc. 37 ¶ 69). Randy
Parson (“Parson”), Bolinger’s supervisor and manager of the Huntingdon facility,
also participated in the interview. (Doc. 30 ¶ 69; Doc. 37 ¶ 69). Hileman expressed
that she became anxious during her conversation with Wray and Spencer and that
5

she reached a “breaking point.” (Doc. 30 ¶ 69; Doc. 37 ¶ 69). Penelec suspended
Hileman without pay pending the results of its internal investigation. (See Doc. 30
¶ 72; Doc. 37 ¶ 72). By letter dated December 9, 2010, Parson advised Hileman of
defendants’ decision to terminate her employment effective immediately. (Doc. 30
¶ 75; Doc. 37 ¶ 75). In his letter, Parson cited Penelec’s workplace violence policy as
the basis for Hileman’s termination. (See Doc. 30 ¶ 75; Doc. 37 ¶ 75). That policy
broadly proscribes violence by Penelec employees. (Doc. 31-27 at 20). Parson’s
letter also cited a workplace safety meeting Hileman attended two weeks prior to
the altercation.3 (Doc. 30 ¶ 75; Doc. 37 ¶ 75).
Hileman filed a grievance with the Local 180 contesting her termination.
(Doc. 30 ¶ 77; Doc. 37 ¶ 77). Hileman also dual-filed a complaint with the PHRA and
EEOC on May 10, 2011, claiming discriminatory and retaliatory discharge. (Doc. 30
¶ 78; Doc. 37 ¶ 78; see Doc. 31-31 ¶ 44). Hileman’s grievance thereafter proceeded to
arbitration. (Doc. 30 ¶ 79; Doc. 37 ¶ 79). In a written decision issued February 20,
2012, the arbitrator sustained Hileman’s grievance in part. (See Doc. 30 ¶ 81; Doc.
37 ¶ 81). Specifically, the arbitrator reinstated Hileman’s employment, but found
that she was not entitled to back pay because of the seriousness of her misconduct.
(Doc. 30 ¶¶ 81-82; Doc. 37 ¶¶ 81-82). The arbitrator also found that Hileman was an

3

Hileman was also criminally charged with harassment as a result of her
altercation with Spencer. (Doc. 30 ¶ 76; Doc. 37 ¶ 76). A magistrate judge found
Hileman guilty on February 4, 2011. (Doc. 30 ¶ 76; Doc. 37 ¶ 76). On appeal, the
court dismissed the charge and ordered Hileman’s record to be expunged. (See
Doc. 37 ¶ 76; Doc. 37-31 at 3).
6

“unknowing target” who had been “ganged up on” by her coworkers. (Doc. 31-32 at
20).
C.

Hileman’s Reinstatement

Penelec reinstated Hileman’s employment on March 5, 2012. (Doc. 30 ¶ 89;
Doc. 37 ¶ 89). Hileman returned to work on March 12, 2012. (Doc. 30 ¶ 89; Doc.
37 ¶ 89). Bolinger, Parson, and regional manager Sally Simmons (“Simmons”),
decided to conduct workplace violence training on the day Hileman returned to
work. (Doc. 30 ¶ 87; see also Doc. 37 ¶ 87). Management intended the training, at
least in part, to address Hileman’s altercation with Spencer. (Doc. 30 ¶ 88; see also
Doc. 37 ¶ 88).
Penelec hired a new utility worker-floater, Vicki Kauffman (“Kauffman”),
during Hileman’s year-plus absence. (See Doc. 30 ¶ 98; Doc. 37 ¶ 98). Management
assigned Hileman’s then-vacant workspace to Kauffman. (See Doc. 30 ¶ 98; Doc. 37
¶ 98). Prior to Hileman’s return, Bolinger, Parson, and Simmons discussed where
to locate Hileman’s new workspace to ensure that both she and Spencer would be
“comfortable.” (Doc. 30 ¶ 101; see also Doc. 37 ¶ 101). They chose to assign Hileman
to a workspace located between Bolinger’s and Wray’s offices. (Doc. 30 ¶ 101; see
Doc. 37 ¶ 101). Hileman’s new office space was separated from the reception area
where she previously worked by “a few steps and . . . a doorway.” (Doc. 30 ¶ 102;
see, e.g., Doc. 31-35 at 1). Hileman found the new space to be “a cluttered mess,”
likening it to a “storage closet” rather than an office. (Doc. 37 ¶¶ 101-02).
The new workspace at first did not contain a computer or the requisite
internet connection to support Hileman’s job duties. (See Doc. 30 ¶¶ 107-08; Doc. 37
7

¶¶ 107-08). Bolinger requested a computer hook-up for Hileman, and, once alerted
to the issue, Simmons assigned an employee to resolve Hileman’s computer issues
as soon as possible. (Doc. 30 ¶¶ 111-12; Doc. 37 ¶¶ 111-12). While Hileman waited
for a computer system in her new workspace, she used a computer in a storeroom
office near the facility’s garage. (See Doc. 30 ¶¶ 114-15; Doc. 37 ¶¶ 114-15). The
room had no air conditioning and poor ventilation. (Doc. 30 ¶ 116; Doc. 37 ¶ 116).
Kauffman eventually left the Huntingdon facility, and Hileman asked to relocate to
her former desk. (Doc. 30 ¶¶ 120-21; Doc. 37 ¶¶ 120-21). Bolinger denied Hileman’s
request, citing the proximity of her old workspace to Spencer’s desk. (Doc. 30 ¶ 121;
Doc. 37 ¶ 121). When Hileman complained of rising temperatures in the storeroom
office, Bolinger moved the computer from that office to Hileman’s new workspace.
(Doc. 30 ¶ 117; Doc. 37 ¶ 117).
In April of 2012, Bolinger asked Hileman to work three shifts at Penelec’s
Lewistown facility to cover for a utility worker on sick leave. (Doc. 30 ¶ 122; Doc. 37
¶ 122). Spencer, a utility worker-floater, covered an additional 19 shifts. (Doc. 30
¶ 127; Doc. 37 ¶ 127). Bolinger testified that he assigned employees to cover the
shifts based on availability and qualifications. (Doc. 30 ¶¶ 131-32; Doc. 37 ¶¶ 131-32).
Kauffman lived nearest to the Lewistown facility at the time, but Bolinger did not
assign shifts to her because, as a new hire, she was not qualified to perform the
work. (See Doc. 30 ¶ 132; Doc. 37-55 at 2). Bolinger stopped assigning Hileman to
Lewistown shifts after she complained about the assignments to the Local 180.
(Doc. 30 ¶ 129; Doc. 37 ¶¶ 122, 129).

8

Hileman also sought a pay increase for certain work performed after her
reinstatement. At that time, both Hileman and Spencer shared duties for a vacant
district storekeeper position. (Doc. 30 ¶¶ 133-34; Doc. 37 ¶¶ 133-34). Hileman and
Spencer believed they should have been paid at the higher storekeeper rate when
performing these duties. (Doc. 30 ¶ 135; Doc. 37 ¶ 135). When Penelec denied their
requests for a pay increase, Hileman and Spencer filed grievances with the Local
180. (Doc. 30 ¶¶ 136-37; Doc. 37 ¶¶ 136-37). The union declined to pursue the
grievances, finding that Hileman’s and Spencer’s job descriptions (and thus their
pay rates) included the storekeeper duties they performed. (Doc. 30 ¶¶ 138-39;
Doc. 37 ¶¶ 138-39).
Hileman did not receive any negative performance reviews or discipline
following her reinstatement. (Doc. 30 ¶ 118; Doc. 37 ¶ 118). She continued working
at the Huntingdon facility until its closure in November of 2012. (Doc. 30 ¶ 118; Doc.
37 ¶ 118). From 2009 until the facility closed, Hileman and Spencer received equal
pay at the maximum hourly rate available. (Doc. 30 ¶ 141; Doc. 37 ¶ 141).
Hileman commenced this action on September 11, 2014. (Doc. 1). In her
three-count complaint, Hileman asserts claims for race discrimination (Count I),
gender discrimination (Count II), and retaliation (Count III) under Title VII. (Id.)
Defendants move for summary judgment as to each claim. (Doc. 29). The motion
is fully briefed (Docs. 32, 36, 40) and ripe for disposition.
II.

Legal Standard
Through summary adjudication, the court may dispose of those claims that

do not present a “genuine dispute as to any material fact” and for which a jury trial
9

would be an empty and unnecessary formality. FED. R. CIV. P. 56(a). The burden of
proof tasks the non-moving party to come forth with “affirmative evidence, beyond
the allegations of the pleadings,” in support of its right to relief. Pappas v. City of
Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to
sustain a judgment in favor of the non-moving party on the claims. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986). Only if this threshold is met
may the cause of action proceed. See Pappas, 331 F. Supp. 2d at 315.
III.

Discussion
Defendants contend that the record does not support Hileman’s Title

VII discrimination or retaliation claims. They argue first, that Hileman cannot
establish a prima facie case of discrimination or retaliation; second, that any adverse
employment action was substantiated by a legitimate, non-discriminatory rationale;
and third, that Hileman cannot demonstrate that such rationale is pretextual.4 We
begin our analysis with Hileman’s discrimination claims.
A.

Discrimination

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer
“to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to [her] compensation, terms, conditions, or
4

Defendants also ask the court to dismiss FirstEnergy as a defendant
because Hileman adduces no evidence to justify piercing the corporate veil. (Doc.
32 at 48-50; see also Doc. 36 at 46-48). In light of our merits analysis infra, we need
not address this separate issue.
10

privileges of employment, because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). The familiar burden-shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), governs discrimination
claims under Title VII.
The first prong of the McDonnell Douglas inquiry tasks a plaintiff to establish
a prima facie case of discrimination. See Burton v. Teleflex Inc., 707 F.3d 417, 426
(3d Cir. 2013) (quoting Scheidemantle v. Slippery Rock Univ. State Sys. of Higher
Educ., 407 F.3d 535, 538 (3d Cir. 2006)). To do so, a plaintiff must prove: (1) she is a
member of a protected class; (2) she was qualified for her position; (3) she suffered
an adverse employment action; and (4) the circumstances of the adverse action give
rise to an inference of discrimination. Kimes v. Univ. of Scranton, 126 F. Supp. 3d
477, 494 (M.D. Pa. 2015) (citing Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410-11 (3d
Cir. 1999)). If a plaintiff establishes a prima facie case, the burden shifts to the
employer to articulate one or more legitimate, nondiscriminatory rationales for its
decision. See Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 319 (3d Cir.
2000) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56 (1981)). An
employer’s obligation in this regard is “relatively light.” Fuentes v. Perskie, 32 F.3d
759, 763 (3d Cir. 1994). If the employer meets this minimal burden of production,
the ultimate burden returns to the plaintiff to show that the proffered rationale is
pretextual. See Goosby, 228 F.3d at 319 (citing Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133 (2000)).

11

1.

Prima Facie Case: Termination

Hileman first claims that her termination in December of 2010 was animated
by discriminatory motive. (See Doc. 1 ¶¶ 33-38, 44-48). Defendants contend that
Hileman has not proven that she was qualified for the utility worker position and
that she fails to raise an inference of discrimination. (Doc. 32 at 9 n.2).
We reject defendants’ inceptive assertion that Hileman’s altercation with
Spencer rendered her unqualified for her position. (See id.) The qualification
requirement concerns only “the bare minimum requirement to perform the job at
issue.” Makky v. Chertoff, 541 F.3d 205, 215 (3d Cir. 2008). Defendants concede
that, upon reinstatement, Hileman performed her job duties and did not receive a
negative performance review or reprimand. (Doc. 30 ¶ 118). Defendants have not
shown that Hileman lacks the minimum qualifications to perform her job.
Defendants’ principal contention is that the probata does not permit an
inference of discriminatory intent. (Doc. 32 at 9 n.2). A plaintiff may discharge her
burden in this regard by producing “evidence adequate to create an inference that
an employment decision was based on an illegal discriminatory criterion.” Pivirotto
v. Innovative Sys., Inc., 191 F.3d 344, 356 (3d Cir. 1999) (quoting O’Connor v. Consol.
Coin Caterers Corp., 517 U.S. 308, 312 (1996)). One way to raise such an inference is
through “comparator” evidence—proof that the employer treated similarly-situated
individuals outside of the protected class more favorably. Simpson v. Kay Jewelers,
Div. of Sterling, Inc., 142 F.3d 639, 645 (3d Cir. 1998) (citing Fuentes, 32 F.3d at 765).
A comparator is “similarly situated” when his or her conduct was “of comparable
seriousness” to the plaintiff’s. Glenn v. Raymour & Flanigan, 832 F. Supp. 2d 539,
12

548 (E.D. Pa. 2011) (citation omitted). In the employee discipline context, relevant
considerations include whether the employees shared a supervisor, were subject to
the same or similar performance standards, and engaged in the same or similar
conduct without differentiating or mitigating factors. Terrell v. City of Harrisburg
Police Dep’t, 549 F. Supp. 2d 671, 681 (M.D. Pa. 2008) (Conner, J.) (citation omitted).
The parties sub judice address comparators in their pretext analyses, but courts
regularly explore the issue as part of the prima facie case. See, e.g., id.; see also
Foye v. SEPTA, No. 15-1036, 2017 WL 1150259, at *6 (E.D. Pa. Mar. 28, 2017)
(collecting cases).
Discovery revealed four potential comparators: Steve Walker (“Walker”),
Gary Hileman (Hileman’s brother-in-law), Adam George (“George”), and Thomas
Dubbs (“Dubbs”).5 (Doc. 30 ¶¶ 146-61; Doc. 37 ¶¶ 146-61). Hileman alleges that each
of these four employees—all Caucasian males—engaged in “much more severe and
violent altercations” than her own. (Doc. 1 ¶¶ 44-46; see also id. ¶ 33). She testified
that Walker and Gary Hileman engaged in a physical fight “after work hours and off
of [c]ompany property,” and that Penelec did not fire either employee as a result.
(Doc. 130 ¶ 150; Doc. 137 ¶ 150). Another employee claimed to have reported the

5

Hileman confoundingly asserts that defendants “failed to provide evidence
of comparators” and intimates that the “lack of comparators” is itself indicative
of discrimination. (Doc. 36 at 19-20). Hileman claims that because the defendants
“fail to harshly discipline or terminate anyone,” no comparator exists. (Id. at 19).
As a threshold matter, it is Hileman and not her employer who bears the burden
of proving disparate treatment among similarly-situated employees. Further, a
careful reading of Hileman’s papers makes clear that Hileman disputes not the
existence of comparators, but whether defendants’ treatment of those individuals
permits an inference of discrimination. (Id. at 19-20; see also Doc. 1 ¶¶ 33-34, 44-46).
13

fight to management, but Bolinger denied ever learning of the incident and neither
Walker nor Gary Hileman reported it to Penelec. (Doc. 130 ¶¶ 153-55 & n.10; Doc.
137 ¶¶ 153-55). Hileman also alleges that George, a layout technician, was not fired
after stating he would “blow management away” during a safety meeting, and that
Dubbs, an operating clerk who retired more than 30 years ago, was not fired after
he “punched another employee.” (Doc. 130 ¶¶ 146-49; Doc. 137 ¶¶ 146-49). Hileman
offers no additional elucidation of these prior incidents.
We cannot distill an inference of discrimination from Penelec’s treatment of
the purported comparators. The alleged fight between Walker and Gary Hileman
occurred outside of work hours, away from Penelec property, and without the direct
knowledge of Penelec management. (See Doc. 130 ¶¶ 150, 154-55; Doc. 137 ¶¶ 150,
154-55). The incident stands in stark contrast to Hileman’s workplace altercation
with Spencer, which occurred on company property and time, and in direct view of
Hileman’s supervisor. (See Doc. 130 ¶ 63; Doc. 137 ¶¶ 63-64). Likewise, George’s
verbal remark during a meeting—which Hileman agrees may have been in jest—is
materially distinct from a physical altercation. (See Doc. 130 ¶ 148; Doc. 137 ¶ 148).
Regarding Dubbs, Hileman fails to establish the circumstances of his alleged fight.
She does not know whether the fight occurred on company property or elsewhere,
nor does she indicate to whom Dubbs reported or whether he was subject to a zerotolerance workplace violence policy as she was. (See Doc. 31-1, Hileman Dep. 159:8161:15, June 10, 2016). Hileman has not shown that defendants treated a similarlysituated individual outside of her protected class more favorably.

14

Hileman also intimates that the circumstances of her termination raise an
inference of discrimination. She specifically avers that management’s response to
the altercation with Spencer was exaggerated and insists that this alone supports
her discrimination claim. (See Doc. 36 at 18-19). Hileman adduces no evidence
suggesting that discriminatory animus tainted defendants’ decision to terminate
her employment. Hileman remonstrates that Penelec fosters “a corporate culture
unfavorable to women and people of color,” (id. at 21), but her allegata are at fatal
variance with the probata. The Rule 56 record does not permit an inference that
improper motives inspired Hileman’s termination. Hileman accordingly fails to
make out a prima facie case of Title VII discrimination as pertains her termination.6
2.

Prima Facie Case: Post-Reinstatement

Hileman avers that defendants continued to discriminate against her after
her reinstatement. (Doc. 36 at 21-39). Hileman identifies four perceived adverse
6

Assuming arguendo that Hileman could establish a prima facie case,
defendants have articulated a legitimate, nondiscriminatory rationale for her
termination: her physical altercation with a coworker in violation of the workplace
violence policy. This proffer satisfies defendants’ burden of production and shifts
the burden of proof to Hileman to establish pretext. To discredit defendants’
rationale as pretext, Hileman must identify “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions” in defendants’ proffered
explanations that “a reasonable factfinder could rationally find them unworthy
of credence.” Fuentes, 32 F.3d at 762 (emphasis and internal quotation marks
omitted). It is not enough for Hileman to oppugn defendants’ business judgment;
she must prove that defendants’ proffered rationale is “not merely . . . wrong, but
that it was so plainly wrong that it cannot have been the employer’s real reason.”
James v. Tri-Way Metalworkers, Inc., 189 F. Supp. 3d 422, 435 (M.D. Pa. 2016)
(quoting Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997)).
Hileman’s pretext argument mirrors the contentions rejected by the court ante,
to wit: disparate treatment of prospective comparators and a subjective belief
that defendants foster a discriminatory culture. Hence, Hileman cannot carry
her burden at step three of the McDonnell Douglas framework.
15

employment actions: (1) workplace violence training on the day of her return; (2)
her reassignment to a new workspace; (3) Bolinger’s request that Hileman cover
three shifts at a different facility; and (4) Penelec’s refusal to upgrade her pay for
performing storekeeper duties. (See Doc. 36 at 25, 27-33).7 Defendants contend
that none of the cited actions are “adverse employment actions” sufficient to prove
a prima facie case of discrimination. (Doc. 32 at 9 n.2).
An “adverse employment action” under Title VII is one which is sufficiently
tangible to effect a “significant change” to an employee’s status. Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 761-62 (1998). Such actions include hiring, firing, and
failing to promote, as well as reassignment of material responsibilities or significant
changes in benefits. Id.; Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir.
2004) (quoting Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001)). An adverse
employment action usually causes “direct economic harm.” Ellerth, 524 U.S. at 762.
Most of the conduct cited by Hileman does not fit this bill. Hileman claims
that she was embarrassed by the workplace violence training on the day of her
return and inconvenienced by her new office space. (Doc. 37 ¶¶ 88, 101). But she
identifies no objective harm stemming from the circumstances of her reinstatement
that amounts to a “significant change” in her employee status. See Ellerth, 524 U.S.
7

In her opposition brief, Hileman indicates that she suffered “more” adverse
employment actions than those explored in the Rule 56 briefing. (See Doc. 36 at 9).
Hileman offers neither evidence nor argument to substantiate any additional claim.
Consequently, we deem any claim regarding actions beyond those discussed herein
to be waived. See Brice v. City of York, 528 F. Supp. 2d 504, 516 n.19 (M.D. Pa. 2007)
(Conner, J.) (citing D’Angio v. Borough of Nescopeck, 34 F. Supp. 2d 256, 265 (M.D.
Pa. 1999)); Brown v. Pa. State Dep’t of Health, 514 F. Supp. 2d 675, 678 n.7 (M.D. Pa.
2007) (same).
16

at 761-62. Hileman describes the coverage assignments in Lewistown as “illogical,”
but again fails to identify an attendant disadvantage or injury. (See Doc. 37 ¶¶ 12223). None of these actions resulted in a significant change in compensation or in the
terms and circumstances of Hileman’s employment. Hence, they cannot serve as
the basis for a Title VII discrimination claim. Defendants are entitled to summary
judgment on these aspects of Hileman’s discrimination claim.
Hileman’s claim concerning a denied pay upgrade fares no better, but for a
different reason. Defendants’ refusal to increase Hileman’s pay rate is arguably an
economic harm constituting adverse employment action. However, Hileman must
also prove that the refusal occurred under circumstances inferring discrimination.
Pivirotto, 191 F.3d at 356 (quoting O’Connor, 517 U.S. at 312). Hileman asseverates
that defendants’ decision must have been premised on gender animus because two
female employees (Hileman and Spencer) were denied an upgrade, (see Doc. 36 at
38), but she offers no proof to substantiate this allegation. No evidence indicates,
for example, that male employees received a pay upgrade, nor does the record in
toto imply that gender bias played a role in defendants’ decision. Per contra, the
evidence shows unequivocally that defendants based their denial on the terms of
the collective bargaining agreement. (Doc. 30 ¶¶ 136-39; Doc. 37 ¶¶ 136-39).
Hileman cannot establish a prima facie case of discrimination with regard to
her termination or any post-reinstatement actions. She offers much conjecture, but
her speculation and suspicion are not enough to survive Rule 56 scrutiny. See Betts
v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010) (citing Williams

17

v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989)). We will grant summary
judgment to defendants on Hileman’s race and gender discrimination claims.
B.

Retaliation

Hileman asserts that each of the employment actions described supra sustain
her separate claim for unlawful retaliation. Title VII protects employees who have
“opposed any practice made an unlawful employment practice” or “made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing” under the statute. 42 U.S.C. § 2000e-3(a). We analyze retaliation claims
pursuant to the McDonnell Douglas framework. See Carvalho-Grevious v. Del.
State Univ., 851 F.3d 249, 257 (3d Cir. 2017) (citing Moore v. City of Phila., 461 F.3d
331, 340-41 (3d Cir. 2006)).
To establish a prima facie case of retaliation, a plaintiff must prove that: (1)
she engaged in protected activity; (2) her employer took an adverse employment
action against her; and (3) there was a causal nexus between the protected activity
and the adverse action. See id. As in discrimination cases, once a plaintiff makes
out a prima facie case, the burden shifts to the employer to proffer legitimate, nonretaliatory reasons for its decision. Id. If it does, the burden of persuasion returns
to the plaintiff to prove that the proffered non-retaliatory rationale is pretextual and
that unlawful motive was the “but-for” cause of the adverse action. See Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. __, 133 S. Ct. 2517, 2533 (2013); CarvalhoGrevious, 851 F.3d at 257. We consider first whether the record evinces a prima
facie case of retaliation.

18

Hileman engaged in protected activity with respect to her formal complaints
to the PHRC on July 8, 2008 and May 10, 2011, as well as her internal complaint to
human resources on February 10, 2010. (See Doc. 30 ¶¶ 39, 44, 78; Doc. 37 ¶¶ 39, 44,
78). Defendants concede this point. (Doc. 32 at 42-43 & n.5). They dispute only the
second and third elements of Hileman’s prima facie case. (Id. at 41-45).
1.

Prima Facie Case: Adverse Employment Actions

Defendants first claim that courts measure “adverse employment actions”
anent retaliation and discrimination claims against identical rubrics. (Id. at 41-42).
The Supreme Court expressly rejected this in pari materia interpretation of Title
VII’s retaliation and discrimination language more than a decade ago in Burlington
Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 61-64 (2006). Therein, the
Court explored the respective purposes of the neighboring statutory provisions and
held that a standard which “speaks in general terms” rather than in terms of
enumerated acts best fosters the goals of the anti-retaliation provision. Id. at 69
(citation omitted). Thus, employer conduct is actionable when it is “materially
adverse,” a phrase defined broadly to include any act which might “dissuade[] a
reasonable worker from making or supporting a charge of discrimination.’” Id. at
68 (citation omitted). The standard is an objective one and is designed to “separate
significant from trivial harms.” Id.
Hileman plainly suffered adverse employment action when defendants
terminated her employment and refused to upgrade her rate of pay. See LeBoon
v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007); (see also Doc.
32 at 41-42). A reasonable employee might well (and indeed, would likely) perceive
19

termination and denied pay increases as a deterrent to protected activity. White,
548 U.S. at 72-73. Both termination and a denied pay upgrade are potentially
actionable adverse employment decisions.
We evaluate the balance of the alleged adverse actions in view of all
attendant circumstances and from the perspective of a “reasonable person in
plaintiff’s position.” Id. at 71 (quoting Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 81 (1998)). In this regard, “petty slights” and “minor annoyances” will
not ordinarily equate to materially adverse conduct. Id. at 68. But the context of
such actions matters, and employer conduct which at first blush appears de minimis
may be significant in context. See id. For example, failure to invite an employee to
lunch is “normally trivial,” but the slight may be material if the lunch is a valuable
weekly training event that contributes to professional development. Id. We must
consider the totality of the circumstances in determining whether the remainder of
defendants’ challenged actions were “materially adverse.” See id.
Hileman avers that she felt humiliated when defendants scheduled a
workplace safety training on her first day back at work. (Doc. 37 ¶ 88). Defendants
required all employees at the Huntingdon facility to attend this training. (Doc. 30
¶¶ 90-92; Doc. 37 ¶¶ 90-92). The record is devoid of evidence that management
endeavored to personally victimize or target Hileman during the training program.
(See Doc. 37 ¶¶ 90-92). Moreover, Hileman does not discredit defendants’ assertion
that management was genuinely concerned for workplace safety. Under these
circumstances, the court cannot conclude that requiring Hileman to attend a
training mandated for all employees is an adverse employment action.
20

Hileman also cites the relocation of her workspace as retaliatory conduct.
She challenges defendants’ decision to relocate her to the “back office,” away from
Spencer and the reception area where she previously worked, and takes issue with
the condition of the new workspace. (See Doc. 36 at 25, 28). Hileman avers that the
new space was “a cluttered mess” and that defendants should have “straightened
up the area” for her. (Doc. 37 ¶¶ 89, 101-02). Hileman emphasizes that the space
initially lacked a computer setup, forcing her to use a computer in a “dirty” garage
office lacking climate control. (Id. ¶¶ 115-16).
The evidence wholly refutes Hileman’s depiction of these issues. The “back
office” to which Hileman was reassigned is separated only by steps and a doorway
from her former desk. (See Doc. 30 ¶ 102; Doc. 31-35 at 1). Hileman concedes that
she voluntarily utilized the garage office of which she now complains prior to her
termination. (Doc. 30 ¶ 114; Doc. 37 ¶ 114). And she ignores that the bulk of the
inconveniences she cites were temporary, while defendants worked “as fast as
possible” to ensure functionality of her new workspace. (See Doc. 30 ¶¶ 107-17).
The record reflects that defendants accommodated Hileman in the only office space
available upon her return, (id. ¶¶ 98-99; Doc. 37 ¶¶ 98-99), and appropriately chose
not to reassign her to workspace in the immediate vicinity of Spencer in the interest
of workplace safety. (Doc. 30 ¶ 101). The relocation of Hileman’s workspace is not a
materially adverse employment action.
Similarly, Bolinger’s request that Hileman cover three shifts at Penelec’s
Lewistown facility does not amount to adverse employment action. (Doc. 36 at 25,
28). Bolinger asked Spencer to cover 19 shifts at the Lewistown facility compared
21

to Hileman’s three, and he explained that he based his requests on availability and
qualifications. (Doc. 30 ¶¶ 131-32; Doc. 37 ¶¶ 131-32). Bolinger stopped asking
Hileman to cover these shifts when she complained about them to the union. (Doc.
30 ¶ 129; Doc. 37 ¶¶ 122, 129). Hileman neither claims nor substantiates a derivative
injury from the request that she cover three shifts at a separate location. These
requests are not actionable. Accordingly, the balance of our analysis concerns only
two adverse employment actions: Hileman’s termination, and defendants’ denial of
her request for a pay rate upgrade.
2.

Prima Facie Case: Causation

A plaintiff satisfies the third prong of her prima facie case by adducing
evidence to demonstrate a causal link between her protected activity and the
adverse employment actions she suffered. Moore, 461 F.3d at 340-41 (quoting
Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995)). A causal link may be shown
by evidence of an “unusually suggestive” temporal proximity between the protected
activity and the adverse action. LeBoon, 503 F.3d at 232 (citing Clark Cty. Sch. Dist.
v. Breeden, 532 U.S. 268, 273-74 (2001); Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.
1989)). When temporal proximity is not patently suggestive, plaintiffs may raise an
inference of causation by pointing to evidence of intervening antagonistic conduct
or animus, inconsistencies in the employer’s rationale, or other record evidence
which implies retaliatory motive. See LeBoon, 503 F.3d at 232 (quoting Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 279-81 (3d Cir. 2000)). Any evidence “gleaned
from the record as a whole” may support this showing. Farrell, 206 F.3d at 281.

22

Hileman does not point the court to any specific evidence germane to her
Title VII protected activities. She relies almost exclusively on temporal proximity to
impute causation. (See Doc. 36 at 37). Hileman engaged in three discrete protected
activities: on July 8, 2008, she filed a formal complaint with the PHRC; on February
10, 2010, she filed an internal complaint with Penelec’s human resources office; and
on May 10, 2011, she again filed a formal complaint with the PHRC. (Doc. 30 ¶¶ 39,
44, 78; Doc. 37 ¶¶ 39, 44, 78; see also Doc. 32 at 42-43 & n.5).
Unusually suggestive temporal proximity is typically measured in terms of
days and weeks. Compare Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 198 (3d Cir.
2015) (ten months insufficient); LeBoon, 503 F.3d at 233 (three months insufficient),
with Jalil, 873 F.2d at 708 (two days sufficient). Hileman’s termination postdated
her 2008 complaint by more than two years, and her 2010 complaint by nearly ten
months. (See Doc. 30 ¶¶ 39, 44, 75; Doc. 37 ¶¶ 39, 44, 75). Neither party identifies
precisely when Penelec denied Hileman’s request for a pay upgrade, but the record
shows that the union declined to pursue her upgrade grievance in February of 2013,
almost two years after the 2010 complaint. (See Doc. 31-14). On these facts, timing
alone does not permit an inference of retaliation.
Hileman asserts cursorily that a “pattern of antagonism” combines with
timing to substantiate an inference of retaliatory motive. (Doc. 36 at 37). As noted
supra, when timing alone is not overtly suggestive, a plaintiff may point to evidence
of intervening antagonism to support her prima facie case. See LeBoon, 503 F.3d at
232 (quoting Farrell, 206 F.3d at 279-81). We must examine all intervening conduct
collectively to assess whether circumstances connote retaliation. See Marra, 497
23

F.3d at 303. Acts of antagonism need not rise to the level of adverse employment
actions to bespeak retaliatory motive. See, e.g., id. at 303-05.
Hileman identifies one instance of antagonistic conduct in the months
following her reinstatement: a remark made by one coworker to another to the
effect that Hileman’s new workspace assignment placed the “black in the back.”
(Doc. 37 ¶¶ 105, 142-43). Odious though it may be, this remark fails to support
Hileman’s claim. Hileman was not present when the remark was uttered, nor does
she identify the speaker or the context in which it was made. (See id.) Thus, the
statement is inadmissible hearsay. See FED. R. EVID. 802. Moreover, the purported
remark does not accurately depict Hileman’s new office arrangement: undisputed
evidence establishes that Hileman shared her new workspace with two Caucasian
employees. (See Doc. 30 ¶¶ 4-5, 101; Doc. 37 ¶¶ 4-5, 101).
The remark also cannot satisfy Hileman’s burden under prevailing law. The
Third Circuit Court of Appeals consistently reaffirms that “[s]tray remarks by nondecisionmakers . . . unrelated to the decision process” will “rarely” suffice to prove
retaliation. Pivirotto, 191 F.3d at 359 (quoting Ezold v. Wolf, Block, Schorr & SolisCohen, 983 F.2d 509, 545 (3d Cir. 1992)). This is especially true when the comment
is temporally remote from the adverse action. Id. Hileman does not acknowledge
this principle, and she offers the court no basis to deviate from it. The unidentified
coworker’s remark could not, without more, support a verdict in Hileman’s favor.
Hileman fails to raise an inference of retaliatory motive through timing,
inconsistent testimony, a pattern of antagonism, or other circumstantial evidence.
The summary judgment record simply does not establish a causal relationship
24

between Hileman’s protected activities and defendants’ employment decisions.
Hence, Hileman cannot establish a prima facie case of retaliation under Title VII.8
We will grant summary judgment to defendants on Hileman’s retaliation claim.
IV.

Conclusion
For all of the reasons stated herein, the court will grant defendants’ motion

(Doc. 29) for summary judgment. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:

8

June 27, 2017

Assuming arguendo that the record allowed an inference of causation, it
would not satisfy Hileman’s burden of persuasion. Hileman must prove at step
three of the McDonnell Douglas framework that her protected activity was the butfor cause of her termination and the denied pay upgrade. See Nassar, 133 S. Ct. at
2533. Hileman could not achieve this ultimate burden: the evidence unequivocally
establishes that Hileman’s termination was the result of a contentious altercation
with a coworker on company property, and that defendants denied her pay upgrade
at the recommendation of union counsel, based on the language of the collective
bargaining agreement.