Lawrence v. Schuylkill Medical Center East
MEMORANDUM For the reasons discussed above, we conclude Defendants Motion for Summary Judgement (Doc. 23) is properly granted in part and denied in part. The motion is denied as to Counts II and V, Plaintiffs claims for Sexual Harassment-Hostile Wor k Environment under Title VII and the PHRA. The motion is granted in all other respects and judgement in Defendants favor is granted on the following counts: Counts I and IV for Sex Discrimination under Title VII and the PHRA; and Counts III and VI for Retaliation under Title VII and the PHRA. Therefore, only Plaintiffs claims for Sexual Harassment-Hostile Work Environment go forward. (See Memorandum) re 23 MOTION for Summary Judgment filed by Schuylkill Medical Center East Signed by Honorable Richard P. Conaboy on 8/14/12. (cc, )
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
:CIVIL ACTION NO. 3:11-CV-1339
SCHUYLKILL MEDICAL CENTER
EAST, also known as,
SCHUYLKILL HEALTH SYSTEM,
Here we consider Defendant’s Motion for Summary Judgment (Doc.
23) filed on May 2, 2012.
With this motion, Defendant seeks
judgement in its favor on all counts of Plaintiff’s First Amended
Complaint (Doc. 16).
Plaintiff’s First Amended Complaint contains
claims for sex discrimination, sexual harassment-hostile work
environment, and retaliation based on the alleged harassment of a
coworker and Defendant’s response to it.
reasons discussed below, we conclude Defendant’s Motion for Summary
Judgment (Doc. 28) is properly granted in part and denied in part.
Plaintiff Sharon Lawrence (“Plaintiff”) is a registered nurse
who began working at Good Samaritan Hospital on August 13, 2007.
(Doc. 27 ¶¶ 1-2.)
She is married and is the mother of three
children, ages nine, fourteen, and twenty-two.
(Doc. 27 ¶ 1.)
Following a merger, Good Samaritan Hospital became known as
Schuylkill Medical Center East (“SMCE” “Defendant” “Hospital”).
(Doc. 27 at 1 n.3.)
11 p.m. to 7 a.m.
Plaintiff was a float pool nurse working from
(Doc. 27 ¶ 2.)
Float pool nurses can work on
all floors of the Hospital without a regular assignment (id.) which
meant that the Hospital could assign Plaintiff to various locations
during her regularly scheduled shift based upon need (Doc. 24 ¶ 2;
Doc. 26 ¶ 2).
Plaintiff initially worked five eight-hour shifts per week
from 11:00 p.m. to 7:30 a.m.
(Doc. 24 ¶ 3; Doc. 26 ¶ 3.)
Plaintiff had trouble with her sleep cycle on this schedule, and
the Hospital accommodated her request to change to two twelve-hour
shifts and two eight-hour shifts each week.
Plaintiff also wanted to keep her weekends free and felt that
working every-other weekend interfered with her sleep cycle.
Susan Curry, SMCE Nursing Director at the time, proposed Plaintiff
work three, twelve-hour shifts and one, four-hour shift each week,
but Plaintiff wanted to work only seven shifts, rather than eight
shifts, per two-week pay period.
Consequently, Curry again
accommodated Plaintiff’s desires by allowing her to work three
twelve-hour shifts each week and one, eight-hour shift in one week
of a two-week pay period.
Plaintiff normally worked her
twelve-hour shifts from 7:00 p.m. to 7:30 a.m. (Doc. 24 ¶ 6; Doc.
26 ¶ 6.)
Plaintiff’s working the eight-hour shift in one week (rather
than a four-hour shift each week) resulted in a total of 44 hours
for that week and would have entitled Plaintiff to overtime.
24 ¶ 4; Doc. 26 ¶ 4.)
Because Curry could not justify paying
Plaintiff overtime to accommodate her schedule, she and Plaintiff
agreed Plaintiff would not punch in on the day of her eight-hour
shift and four hours would be manually entered into the timekeeping
system for each week in the pay period.
(Doc. 24 ¶ 5; Doc. 26 ¶
Of the thirty to thirty-five nurses in the float pool,
Plaintiff was the only one with this schedule.
(Doc. 24 ¶ 7; Doc.
26 ¶ 7.)
The perpetrator of the workplace harassment underlying this
action was co-worker Jeffrey Vaillant who was hired by Defendant as
a nurse in March 2009.
(Doc. 27 ¶ 6.)
hiring responsibility for nurses.
Nursing Director Curry had
(Doc. 27 ¶ 8.)
an Employment Specialist for SMCE, also met with Vaillant before he
(Doc. 27 ¶¶ 18-19.)
As part of her review process,
Garber received and reviewed a Reference Form from Vaillant’s
previous employer, Lehigh Valley Hospital (“LVHN”).
(Doc. 27 ¶
The Reference Form indicated that Vaillant was discharged
from his employment at LVHN for violation of Hospital policy.
(Doc. 27 ¶¶ 14-15.)
The form also indicated that Vaillant was
disciplined on five occasions during the period August 2007 through
August 2008, two of which involved inappropriate conduct, sexual
harassment, one for which he was suspended in March 2008, and then
a second incident in August 2008 involving inappropriate conduct,
sexual harassment, for which he was discharged.
(Doc. 27 ¶ 15.)
Garber sent an e-mail to Curry following her interview with
Vaillant in which she expressed concern about hiring Vaillant (Doc.
27 ¶ 21), specifically noting that she was hesitant about “what he
said about the harassment issue” (Doc. 27-9 at 9).
that she did not recall Garber expressing any concern about hiring
(Doc. 17 ¶ 24.)
Curry had reviewed the LVHN Reference Form before hiring
Vaillant (Doc. 27 ¶ 31), and she advised SMCE Human Services
Director Martin Treasure that there was an allegation of sexual
harassment against Vaillant at LVHN (Doc. 27 ¶ 26).
asserts that the Hospital perceived that Vaillant provided honest
and forthright information which addressed these issues.
According to Curry, the decision to hire Vaillant was made by
herself, Treasure, and SMCE Nurse Managers Carol Demcher and Lynn
(Doc. 27 ¶ 32.)
Demcher testified that she interviewed
Vaillant but did not know before he was hired about the LVHN sexual
(Doc. 27 ¶ 33.)
Plaintiff asserts that Vaillant began making inappropriate
sexual comments to her in June 2009 and they continued through the
(Doc. 27 ¶ 35.)
On August 20, 2009, Plaintiff contacted
Curry by telephone to report what she felt was inappropriate
conduct by Vaillant. (Doc. 24 ¶ 8; Doc. 26 ¶ 8.)
that, on one occasion, Vaillant asked Plaintiff if her bra and
(Doc. 24 ¶ 9; Doc. 26 ¶ 9.)
that she also told Curry about other comments Vaillant had made to
her, including asking to kiss her, telling her he thought she was
attractive, stating “I love the view” as she stooped down, telling
her to divorce her husband because her name would sound better with
his last name, and stating “I want to be with you, I want to make
love to you.”
(Doc. 24 ¶ 10; Doc. 26 ¶ 10.)
alleges that she told Curry she had heard from coworkers that
Vaillant had had a problem at his former Hospital.
(Doc. 24 ¶ 11;
Doc. 26 ¶ 11.)
During the August 20, 2009, phone call, Plaintiff told Curry
that she had already spoken to Vaillant about the conduct.
24 ¶ 13; Doc. 26 ¶ 13.)
Plaintiff avers that she made the call
because her attempts to resolve the problem herself were
(Doc. 27 ¶ 42.)
Curry recalls repeatedly asking
Plaintiff if she wanted Curry to intervene and Plaintiff indicated
she did not want Curry to speak to Vaillant but if she needed Curry
to do so, she would let her know. (Doc. 24 ¶ 14.)
disputes Curry’s recollection, asserting that Curry said she would
take care of the situation and speak to Vaillant.
see also Doc. 24 ¶ 15; Doc. 26 ¶ 15.)
(Doc. 27 ¶ 46;
Plaintiff also informed
Curry about another alleged situation involving Vaillant. (Doc. 24
¶ 16; Doc. 26 ¶ 16.)
On August 7, 2009, Bridgette Schultz, an SMCE
nurse, made a report to Carol Demcher, the nurse manager for the
fifth floor or “5 North” unit of the Hospital.
26 ¶ 17.)
(Doc. 24 ¶ 17; Doc.
Schultz told Demcher that she was scratching a mosquito
bite inside her uniform top when she heard another nurse, Becky
Kessler, state “Jeff, what are you doing?”
(Doc. 24 ¶ 18; Doc. 26
Schultz stated that Vaillant was preparing to take a
picture with his camera phone and said that he wanted to take a
group picture of the staff to show his wife the beautiful women he
(Doc. 24 ¶ 19; Doc. 26 ¶ 19.)
Demcher told Schultz
she would investigate the incident and that Schultz should notify a
supervisor if she felt threatened in any way.
26 ¶ 20.)
(Doc. 24 ¶ 20; Doc.
Defendant asserts Demcher immediately prepared a written
report which she submitted to Curry.
(Doc. 24 ¶ 21.)
avers there is an undated unsigned report which Demcher testified
she prepared but contends the report was not immediately prepared
or immediately given to Curry.
(Doc. 26 ¶ 21.)
verify details of the incident with Kessler.
Doc. 26 ¶ 22-23.)
Demcher could not
(Doc. 24 ¶¶ 22-23;
Demcher spoke to Vaillant and he admitted to
taking a group photo. (Doc. 24 ¶ 24; Doc. 26 ¶ 24.)
Because Demcher confirmed only that Vaillant had been taking a
group photo, Demcher determined that any allegation of sexual
harassment was unfounded, and she did not recommend that Vaillant
(Doc. 24 ¶ 25; Doc. 26 ¶ 25.)
Plaintiff avers the
investigation was incomplete and insufficient because Demcher never
asked Vaillant to show her the pictures on his camera and Demcher
never asked who the other nurses were in the supposed group
(Doc. 26 ¶ 25.)
Demcher advised Vaillant that taking pictures in the Hospital
was against policy because it could violate patient privacy
(Doc. 24 ¶ 26; Doc. 26 ¶ 26.)
Defendant avers that
Vaillant was instructed not to repeat the conduct and was told that
corrective action would be taken if he did, but Plaintiff contends
Demcher did not provide any testimony substantiating this averment.
(Doc. 24 ¶ 27; Doc. 26 ¶ 27.)
Vaillant did not attempt to take
another photo in the Hospital again. (Doc. 24 ¶ 28; Doc. 26 ¶ 28.)
On the evening of September 6, 2009, the Sunday of Labor Day
weekend, Plaintiff reported to Rosellen Frantz, the nursing
supervisor on the 3:00 p.m. to 11:00 p.m. shift, that Vaillant
stated to her “can I get some fries with that shake,” and put his
hands on her shoulders.
(Doc. 24 ¶ 29; Doc. 26 ¶ 29.)
asked Plaintiff to write down what had happened to document her
complaint. (Doc. 24 ¶ 30; Doc. 26 ¶ 30.)
Plaintiff asked Frantz to
have the police remove Vaillant from the Hospital.
Doc. 26 ¶ 31.)
(Doc. 24 ¶ 31;
Frantz told Plaintiff that she should wait for the
Hospital administration to investigate the incident when they
returned after the Labor Day holiday.
(Doc. 24 ¶ 32; Doc. 26 ¶
Plaintiff returned to work and completed her shift. (Doc. 24
¶ 33; Doc. 26 ¶ 33.)
At the end of her shift, on September 7,
2009, Plaintiff made a written report and submitted it to Janet
Costa, the nurse supervisor for the 11:00 p.m. to 7:00 a.m. shift.
(Doc. 24 ¶ 37; Doc. 26 ¶ 37.)
Two other nurses, Bridgette Schultz and Crystal Novak, also
reported to Frantz on September 6, 2009, that Vaillant had made
inappropriate comments to them. (Doc. 24 ¶ 34; Doc. 26 ¶ 34.)
Frantz placed written statements from these nurses in a locked
mailbox for Curry, and, at the end of her shift at 11:00 p.m. on
September 6th, called Curry at home to inform her of the complaints.
(Doc. 24 ¶ 35; Doc. 26 ¶ 35.)
Curry told Frantz she would
investigate the matter and asked Frantz to have everything ready
for her when she returned to the office on Tuesday, September 8,
(Doc. 24 ¶ 36; Doc. 26 ¶ 36.)
First thing on the morning of September 8, 2009, Plaintiff
called Curry. (Doc. 24 ¶ 38; Doc. 26 ¶ 38.)
Plaintiff relayed the
information in her complaint, and Curry indicated to Plaintiff that
she received written statements and would be reviewing them and
investigating the situation.
(Doc. 24 ¶ 39; Doc. 26 ¶ 39.)
Plaintiff alleges that she also asked Curry how Vaillant would be
reprimanded and that Curry stated she could not tell Plaintiff
because it would be a HIPAA violation.
(Doc. 24 ¶ 40; Doc. 26 ¶
Curry told Plaintiff that there would be sexual harassment
training from the ground up.
(Doc. 24 ¶ 42; Doc. 26 ¶ 42.)
also asked Plaintiff what she meant by the last line of her written
statement, “I made Sue Curry aware of this problem.”
43; Doc. 26 ¶ 43.)
Plaintiff indicated she meant that she had
shared her concerns with Curry in the past.
(Doc. 24 ¶
(Doc. 24 ¶ 44; Doc. 26
Defendant asserts that Curry was concerned that Plaintiff’s
statement incorrectly implied that Curry had failed to act on
Plaintiff’s prior report when Plaintiff had repeatedly declined
Curry’s offer to intervene.
(Doc. 24 ¶ 45.)
Curry’s assessment that Plaintiff had declined Curry’s offer to
intervene when they spoke on August 20, 2009.
(Doc. 26 ¶ 45.)
On the morning of September 8, 2009, Curry and Demcher began
investigating the complaints, including interviews with Schultz and
(Doc. 24 ¶¶ 46-47; Doc. 26 ¶¶ 46-47.)
indicated that Vaillant may have made inappropriate comments to
another nurse, Melissa Shirey, Demcher also spoke to her on
September 8, 2009, and documented the interview. (Doc. 24 ¶ 48;
Doc. 26 ¶ 48.)
Defendant asserts Shirey stated that Vaillant had
made comments to her but she had not reported them because she did
not feel threatened.
(Doc. 24 ¶ 49.)
On September 8, 2009, Curry also called HR Director Treasure
to inform him of the allegations. (Doc. 24 ¶ 50; Doc. 26 ¶ 50.)
Treasure asked Curry to ensure that written statements were
obtained and that an investigation was conducted as soon as
(Doc. 24 ¶ 51; Doc. 26 ¶ 51.)
Curry and Demcher also met with Vaillant on September 8, 2009.
(Doc. 24 ¶ 52; Doc. 26 ¶ 52.)
Curry questioned Vaillant about the
complaints and, with one exception, Vaillant acknowledged that he
made the comments at issue.
(Doc. 24 ¶¶ 53-54; Doc. 26 ¶¶ 53-54.)
Vaillant stated that such comments were “a two-way street” and part
of the usual banter on 5 North. (Doc. 24 ¶ 55; Doc. 26 ¶ 55.)
Defendant states that Vaillant noted several examples of such
comments by female nurses on the unit.
(Doc. 24 ¶ 56.)
avers the “banter” referred to did not involve her or the other
nurses who complained about Vaillant’s conduct.
(Doc. 26 ¶ 56.)
Curry told Vaillant that such conversations were unprofessional and
inappropriate, that all such communication must stop immediately,
and that any such communication from any employee should be
(Doc. 24 ¶ 57; Doc. 26 ¶ 57.)
that the investigation would continue.
Curry also told Vaillant
(Doc. 24 ¶ 58; Doc. 26 ¶
After meeting with Vaillant, Defendant reports that Curry
spoke to Michelle Ebling, a nurse who was present during one of the
examples of “banter” Vaillant had cited.
(Doc. 24 ¶ 59; Doc. 26 ¶
Defendant also reports that Ebling confirmed Vaillant’s story
and commented “I guess we all have to clean up our act a little
(Doc. 24 ¶ 60.)
Curry shared the information she had gathered with Treasure
and Chief Nursing Officer Darnell Furer. (Doc. 24 ¶ 61; Doc. 26 ¶
Curry testified that she followed up with the 5 North staff
again to ensure that there was not further inappropriate
conversation on the unit. (Doc. 24 ¶ 62.)
Based on the investigation, Curry and Treasure determined that
Vaillant had engaged in sexual harassment. (Doc. 24 ¶ 63; Doc. 26 ¶
Curry, Treasure, and Furer determined that Vaillant would be
given a final written warning with a very strong message that if
any further behavior of this nature occurred, he would be
(Doc. 24 ¶ 64; Doc. 26 ¶ 64.)
On September 14, 2009, Plaintiff called Curry again.
¶ 65; Doc. 26 ¶ 65.)
Plaintiff asked Curry how the investigation
was going to be resolved.
(Doc. 24 ¶ 66; Doc. 26 ¶ 66.)
the decision regarding Vaillant’s discipline had been made at this
point, it had not yet been communicated to Vaillant.
67; Doc. 26 ¶ 67.)
(Doc. 24 ¶
Plaintiff alleges Curry stated that she could
not reveal Vaillant’s discipline because of HIPAA.
Doc. 26 ¶ 69.)
(Doc. 24 ¶ 69;
Plaintiff demanded to know if Vaillant was still
employed at the Hospital and Curry indicated he was.
70; Doc. 26 ¶ 70.)
(Doc. 24 ¶
Plaintiff stated that she was not pleased with
the way things were being handled.
(Doc. 24 ¶ 71; Doc. 26 ¶ 71.)
Plaintiff stated that Vaillant should be fired.
(Doc. 24 ¶ 72;
Doc. 26 ¶ 72.) Plaintiff also indicated that she did not trust
Curry, Demcher, or the Hospital to handle the situation
(Doc. 24 ¶ 73; Doc. 26 ¶ 73.)
Plaintiff states she
told Curry she could not trust her because Lawrence and Schultz had
reported Valliant’s misconduct in August and nothing was done to
discipline him, and if something had been done previously, the
September 6th incidents would not have happened.
(Doc. 17 ¶ 90.)
Defendant asserts Curry responded to the lack of trust comment by
telling Plaintiff that if she felt strongly that she could not
trust the Hospital, then perhaps it is not the place of employment
(Doc. 24 ¶ 74.)
Plaintiff asserts that Curry said “maybe
the Hospital is not the place of employment for you” but not in the
context Defendant alleges.
(Doc. 26 ¶ 74.)
In her deposition
testimony, Plaintiff indicates Curry’s statement regarding
employment at SMCE was made following Plaintiff’s statement that
she would contact the Hospital president rather than the individual
suggested by Curry.
(Lawrence Dep. 228:23-229:5 (Doc. 27-2 at
Plaintiff stated that she was going to call John Simodejka,
President and CEO of Schuylkill Health.
(Doc. 24 ¶ 75; Doc. 26 ¶
Curry reports she encouraged Lawrence to contact the next
appropriate person up the chain of command if she was unhappy with
the decision made by her and Demcher.
(Doc. 24 ¶ 76.)
On September 14, 2009, Plaintiff called Simodejka’s office and
left a message with his assistant.
(Doc. 24 ¶ 77; Doc. 26 ¶ 77.)
Simodejka’s assistant forwarded the information to Treasure. (Doc.
24 ¶ 78; Doc. 26 ¶ 78.)
On September 15, 2009, Treasure returned
Plaintiff’s call and left a message for her.
(Doc. 24 ¶ 79; Doc.
26 ¶ 79.)
Plaintiff returned Treasure’s call later that day.
(Doc. 24 ¶ 80; Doc. 26 ¶ 80.)
Plaintiff and Treasure had a lengthy
conversation during which Plaintiff recounted the events involving
(Doc. 24 ¶ 81; Doc. 26 ¶ 81.)
Plaintiff also expressed
to Treasure that she did not want to work with Vaillant.
¶ 82; Doc. 26 ¶ 82.)
Defendant asserts Vaillant worked the 3:00 to 11:00 p.m. shift
and was assigned only to the fifth floor of the Hospital.
Plaintiff agrees Vaillant was assigned to the fifth floor
but adds that is not the only place where Vaillant worked: when the
sixth floor had nursing shortages, nurses were pulled from the
fifth floor to work on the sixth floor.
(Doc. 26 ¶ 83.)
objected to working anywhere on the same floor of the building as
(Doc. 24 ¶ 84.)
Treasure told Plaintiff the Hospital
could not guarantee she would not work with Vaillant, but that he
would look into the matter with the nursing department.
(Doc. 24 ¶
85; Doc. 26 ¶ 85.)
On September 16, 2009, Curry issued Vaillant a final written
(Doc. 24 ¶ 86; Doc. 26 ¶ 86.)
The warning noted that a
thorough investigation had been made regarding complaints about
sexually harassing comments and instructed Vaillant that
“[e]ffective immediately there must be complete cessation of all
types of such communication by you to all coworkers.”
Plaintiff did not respond to this averment.
(Doc. 24 ¶
87; Doc. 26 ¶ 87.)
The final written warning referred to an
attached copy of the Hospital’s sexual harassment policy and warned
Vaillant that any “[f]ailure to follow our rules and regulations
will lead to the immediate termination of our employment
(Doc. 24 ¶ 88; Doc. 26 ¶ 88.)
that Curry and himself determined the discipline to be given to
Vaillant and he arrived at that decision in the belief that, while
allegations were serious and the comments were made and there may
have been one instance of touching, the fact that Vaillant admitted
to the complaints and the fact that Curry had informed him she felt
Vaillant understood the seriousness of them, a written warning
would be appropriate.
(Doc. 27 ¶¶ 115-116.)
Defendant asserts there is no evidence that Vaillant sexually
harassed any coworker, including Plaintiff, after receiving the
final written warning and never again said anything offensive to
(Doc. 24 ¶¶ 90-91.)
Plaintiff contests this assessment
based on a complaint she lodged on September 30, 2009, and a
complaint lodged at an unspecified time by Lynette, a respiratory
therapist who complained to Night Supervisor Yeager that Vaillant
had sexually harassed her.2
(Doc. 24 ¶ 90.)
Following the issuance of the final written warning, Curry
Details of Plaintiff’s September 30, 2009, incident are set
out later in the text. The record reflects that Lynette withdrew
her complaint against Vaillant. (Heather Weicicoskie Dep. 45:4-6
(Doc. 27-11 at 13).)
followed up with the nurses on the 5 North unit, who reported that
they had no further issues with Vaillant and were not concerned for
(Doc. 24 ¶ 92; Doc. 26 ¶ 92.)
that, after the issuance of the final written warning, “the sexual
harassment had stopped, which was the objective.”
(Doc. 24 ¶ 93.)
Plaintiff disputes this for the reasons set out above, adding that
Vaillant also subsequently engaged in similar conduct with a
patient, inappropriately touching one of his patients in a sexually
(Doc. 26 ¶ 93.)
On September 16, 2009, Treasure called Plaintiff and left a
message asking her to call him.
(Doc. 24 ¶ 94; Doc. 26 ¶ 94.)
also called Frantz to find out whether Vaillant was working that
night because of what Plaintiff had asked Treasure during their
(Doc. 24 ¶ 95; Doc. 26 ¶ 95.)
asked Frantz to let Plaintiff know that Vaillant was working that
(Doc. 24 ¶ 95; Doc. 26 ¶ 95.)
When Plaintiff arrived for
her shift on September 16, 2009, Frantz informed Plaintiff that
Vaillant was working that night.
(Doc. 24 ¶ 96; Doc. 26 ¶ 96.)
Plaintiff subsequently called Treasure on September 16, 2009,
expressing both her displeasure that Vaillant had not been
terminated and her opinion that Vaillant was not a good nurse.
(Doc. 24 ¶ 97; Doc. 26 ¶ 97.)
On September 18, 2009, Lisa Schetrum, patient coordinator,
informed Plaintiff that, because of changes to the Kronos
timekeeping system, as of October 4, 2009, Plaintiff’s eight-hour
shift could no longer be manually entered so as to avoid overtime.
(Doc. 24 ¶ 98.)
Plaintiff adds that this assertion is denied
because Treasure advised her that there was no change in the new
billing system which would necessitate a scheduling change for
(Doc. 26 ¶ 98.)
The changes consisted of upgrades made
to the existing Kronos timekeeping system.
(Doc. 24 ¶ 99; Doc. 26
The changes to the Kronos system were applicable to all
employees, not just Plaintiff.
(Doc. 24 ¶ 100; Doc. 26 ¶ 100.)
Defendant avers that the Hospital offered to allow Plaintiff to
split the eight-hour shift into two four-hour shifts to be worked
one in each week during any hours of Plaintiff’s choosing.
24 ¶ 101.)
Plaintiff adds that the schedule offered would require
her to work one additional day per pay period to work the same
number of hours as before and citations to her testimony do not
establish that Plaintiff could work any day of her choosing.
26 ¶ 101.)
Plaintiff chose not to work a second four-hour shift.3
(Doc. 24 ¶ 102.)
Plaintiff claims that she chose not to work a
second four-hour shift to reduce the chance she might work with
(Doc. 24 ¶ 103; Doc. 26 ¶ 103.)
chose to continue working the same schedule even after Vaillant’s
employment at the Hospital ended.
(Doc. 24 ¶ 104; Doc. 26 ¶ 104.)
Plaintiff does not respond to this averment.
Plaintiff also claims that Curry admitted at her deposition
that her instruction to Plaintiff to work an eight-hour shift and
fill out a time slip manually to avoid receiving overtime pay was a
practice which violated the Hospital’s policy by not appropriately
reporting hours worked.
(Doc. 27 ¶ 159.)
Plaintiff’s hours manually, Plaintiff avers that Curry confirmed at
her deposition that she was willing to violate the Hospital’s
policy before Plaintiff reported the sexual harassment but not
after and Curry never went to anyone to see if there was a way to
accommodate her previous schedule.
(Doc. 27 ¶¶ 161-62.)
On September 19, 2009, Plaintiff called Treasure and stated
that she felt the “change” in her schedule was retaliatory.
24 ¶ 105; Doc. 26 ¶ 105.)
In her deposition, when asked why she
believed the schedule change was retaliatory, Plaintiff answered:
“Because I was pursuing all of my options of trying to have an
issue, my concerns resolved.”
(Doc. 24 ¶ 106; Doc. 26 ¶ 106.)
Plaintiff alleges that Treasure stated the schedule change “sounds
(Doc. 24 ¶ 107; Doc. 26 ¶ 107.)
that Treasure did not make this statement and the statement is not
supported by admissible evidence.
(Doc. 24 ¶ 107.)
claims she asked Treasure “if it was true that there is a new
Kronos system taking effect” and that “he said no, that that Kronos
system has been in effect for some time now.”
26 ¶ 108.)
(Doc. 24 ¶ 108; Doc.
Plaintiff and Treasure also talked about setting up a
group meeting to discuss accommodating Plaintiff’s desire not to
work with Vaillant.
(Doc. 24 ¶ 109; Doc. 26 ¶ 109.)
On September 30, 2009, Curry and Demcher conducted sexual
harassment training during the 5 North staff meeting.
110; Doc. 26 ¶ 110.)
(Doc. 24 ¶
Curry made clear that inappropriate comments
were to stop immediately.
(Doc. 24 ¶ 111; Doc. 26 ¶ 111.)
On September 30, 2009, Plaintiff and Treasure spoke again by
(Doc. 24 ¶ 113; Doc. 26 ¶ 113.)
Treasure that on that date Vaillant had commented to her that they
were wearing the same color uniform and that she felt this was
(Doc. 24 ¶ 114; Doc. 26 ¶ 114.)
alleges that Treasure agreed that a mere comparison of the color of
their clothing was sexual harassment.
(Doc. 24 ¶ 115; Doc. 26 ¶
Defendant adds that Plaintiff’s allegation is false and is
not supported by admissible evidence.
(Doc. 24 ¶ 115.)
testified that he and Curry concluded that the clothing comments
did not rise to the level of sexual harassment.
(Doc. 27 ¶ 125.)
In October 2009, Plaintiff’s husband called the Hospital at
2:00 a.m. looking for Plaintiff.
(Doc. 24 ¶ 119; Doc. 26 ¶ 119.)
Bridgette Yeager, the nursing supervisor for the 11:00 p.m. to 7:00
a.m. shift, answered the phone and told Plaintiff she had a phone
call from her husband.
(Doc. 24 ¶¶ 118-119; Doc. 26 ¶¶ 118-119.)
The record reflects the date of the alleged comment was
September 30, 2009. Both parties cite incorrect dates.
After taking the phone call, Plaintiff told Yeager she had to leave
because there was an emergency at home.
(Doc. 24 ¶ 119; Doc. 26 ¶
Yeager stated, “F-ing men drive me crazy.
are you going to do about it.”
And what the F
(Doc. 24 ¶ 119; Doc. 26 ¶ 119.)
In October 2009, other nurses told Plaintiff that Yeager said
she had confronted Plaintiff and told Plaintiff to “shut [her] Fing mouth.”
(Doc. 24 ¶ 120; Doc. 26 ¶ 120.)
never actually occurred.
Plaintiff told Schetrum and
Demcher what the other nurses had told her and that the incident
did not happen.
information to Curry.
Plaintiff asked Schetrum to convey the
Plaintiff also asked for a meeting
between herself, Curry, Schetrum, Demcher, and Yeager.
Schetrum conveyed the information to Curry.
26 ¶ 121.)
(Doc. 24 ¶ 121; Doc.
Defendant asserts that Curry discussed the issue with
Yeager, and concluded that, while profanity had been used by
Yeager, it was not directed at Plaintiff.
(Doc. 24 ¶ 122.)
Plaintiff denies this was an accurate conclusion.
(Doc. 26 ¶ 122.)
The meeting requested by Plaintiff did not occur because of
difficulties scheduling the meeting with all of the attendees
requested by Plaintiff.
(Doc. 24 ¶ 123; Doc. 26 ¶ 123.)
Between September 16, 2009, and November 1, 2009, Plaintiff
and Vaillant did not work on the same floor of the Hospital at the
(Doc. 24 ¶ 124; Doc. 26 ¶ 124.)
On November 1, 2009,
Plaintiff was assigned to work on the fifth floor of the Hospital
because the unit was very busy that night.
(Doc. 24 ¶ 125; Doc. 26
Plaintiff refused to work anywhere on that 43-bed unit.
(Doc. 24 ¶ 126; Doc. 26 ¶ 126.)
the emergency room.
Frantz re-assigned Plaintiff to
(Doc. 24 ¶ 127; Doc. 26 ¶ 127.)
When Plaintiff received the schedule which had her working on
the same floor as Vaillant, she became very upset and sought
(Doc. 27 ¶ 137.)
her to take a leave of absence.
Plaintiff’s doctor advised
(Doc. 27 ¶ 137.)
out of work for approximately two weeks “as the thought of putting
herself in a dangerous situation in a hyper vigilant state
emotionally and mentally caused her great fear.”
(Doc. 27 ¶ 137.)
Plaintiff’s primary care physician also referred her to a
psychologist, Dr. Allan Rodgers (Doc. 24 ¶ 130; Doc. 24 ¶ 130; Doc.
27 ¶ 138).
Plaintiff first saw Dr. Rodgers on November 6, 2009,
and he prescribed Zoloft, a medication she had not taken before.
(Doc. 27 ¶ 138, 140.)
Dr. Rodgers classified Plaintiff as a
somewhat “obsessive person,” described as a person who “likes
order, likes to do things rights, has a degree of perfectionism and
takes a great deal of pride in what they do.”
(Doc. 27 ¶ 143.)
Plaintiff continued to treat with Dr. Rodgers through November 11,
(Doc. 27 ¶ 147.)
In early November 2009, Plaintiff retained an attorney, and on
November 16, 2009, filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”).
(Doc. 24 ¶ 128; Doc.
26 ¶ 128.)
Plaintiff attempted to convince Schultz to file an EEOC
charge, but Schultz told Plaintiff she did not want any involvement
in that and she was comfortable with what was happening at the
(Doc. 24 ¶ 129; Doc. 26 ¶ 129.)
On November 19, 2009, Plaintiff met with Curry, Treasure, and
Human Resources Manager, Thomas McPhillips, regarding her work
(Doc. 24 ¶ 131; Doc. 26 ¶ 131.)
Plaintiff was told
that the Hospital would attempt to accommodate her desire not to
work on the same floor as Vaillant, but that, given the small size
of the facility and the needs of the nursing units, they could not
guarantee that Plaintiff would never be on the same floor as
(Doc. 24 ¶ 132; Doc. 26 ¶ 132.)
Plaintiff was also told
that there could be potentially serious consequences if she refused
to perform her assignment.
(Doc. 24 ¶ 133; Doc. 26 ¶ 133.)
offered Plaintiff a permanent position on the 6 North unit on the
sixth floor of the Hospital.
(Doc. 24 ¶ 134; Doc. 26 ¶ 134.)
Plaintiff refused that alternative.
(Doc. 24 ¶ 135; Doc. 26 ¶
Plaintiff claims that she was uncomfortable with this
alternative because, if the 5 North unit was fully staffed and the
6 North unit was short, Vaillant might be asked to temporarily
cover work on the sixth floor.
(Doc. 24 ¶ 136; Doc. 26 ¶ 136.)
Plaintiff adds that her testimony establishes that there were in
fact occasions when Vaillant had been relocated to the sixth floor.
Also on November 19, 2009, Plaintiff was scheduled to work on
5 North at 11:00 p.m., which is when Vaillant’s shift at that
(Doc. 24 ¶ 137; Doc. 26 ¶ 137.)
listen to the taped report on 5 North, Plaintiff listened to it on
another floor to avoid contact with Vaillant, and did not report to
the fifth floor until Vaillant had physically left.
(Doc. 24 ¶
137; Doc. 26 ¶ 137.)
Following the issuance of the final written warning to
Vaillant, Plaintiff never again worked on the fifth floor of the
Hospital while Vaillant was working on that floor.
(Doc. 24 ¶ 138;
Doc. 26 ¶ 138.)
During the relevant time period at the Hospital, the nursing
staff going off-shift would tape-record audio reports regarding
patients for the oncoming staff to listen to at the beginning of
(Doc. 24 ¶ 139; Doc. 26 ¶ 139.)
If Plaintiff was
assigned to 5 North at 11:00 p.m., following Vaillant’s shift,
staff would bring the tape recorders to a different floor of the
Hospital where Plaintiff would listen to report until Vaillant had
physically left the building.
(Doc. 24 ¶ 140; Doc. 26 ¶ 140.)
On January 27, 2010, the Hospital became aware of allegations
that Vaillant had been involved in a romantic relationship with a
woman that began while she was a patient. (Doc. 24 ¶ 141; Doc. 26 ¶
Vaillant denied many of the allegations.
the Hospital determined that he would be terminated based on the
allegations and Vaillant’s prior conduct.5
On February 10, 2010, McPhillips contacted Vaillant to discuss
this decision, and Vaillant resigned.
(Doc. 24 ¶ 142; Doc. 26 ¶
Had Vaillant not resigned, he would have been terminated.
(Doc. 24 ¶ 143; Doc. 26 ¶ 143.)
In April 2010, Plaintiff received her last evaluation from the
(Doc. 24 ¶ 144; Doc. 26 ¶ 144.)
Plaintiff believes the
evaluation was fair and not retaliatory in any way.
(Doc. 24 ¶
145; Doc. 26 ¶ 145.)
In September 2010, Plaintiff discussed changing jobs with her
psychologist. (Doc. 24 ¶ 146; Doc. 26 ¶ 146.)
In October 2010,
Plaintiff was considering ending her employment at the Hospital and
examining other employment options.
(Doc. 24 ¶ 147; Doc. 26 ¶
On November 5, 2010, Plaintiff met with her therapist and
told him that she was considering other employment opportunities.
(Doc. 24 ¶ 148; Doc. 26 ¶ 148.)
In November 2010, Plaintiff began
applying for a new job at multiple places, including Bayada Nurses.
(Doc. 24 ¶ 149; Doc. 26 ¶ 149.)
Plaintiff began her orientation
with Bayada Nurses in December 2010.
(Doc. 24 ¶ 150; Doc. 26 ¶
On December 22, 2010, Plaintiff sent an e-mail to Treasure and
McPhillips which stated that, during her overnight shift between
Plaintiff details Vaillant’s conduct with the patient,
asserting that Defendant misstates the nature of the conduct.
(Doc. 26 ¶ 141.)
December 19 and 20, 2010, she was working in the ICU when Yeager
came into the unit and “walked over to my co-worker Diane Barlow RN
and whispered into her ear, ‘You better not lay your head down on
the table when Sharon Lawrence RN is working because she will
report you for sleeping and she will try to have you fired.’”
(Doc. 24 ¶ 151; Doc. 26 ¶ 151.)
Barlow later told Plaintiff what
(Doc. 24 ¶ 152; Doc. 26 ¶ 152.)
alleges that Yeager’s statement was defamatory and retaliatory.
(Doc. 24 ¶ 153; Doc. 26 ¶ 153.)
Plaintiff testified that this
event was when “I knew I could not take it anymore” and had to
resign from the Hospital.
(Doc. 24 ¶ 154; Doc. 26 ¶ 154.)
McPhillips responded to Plaintiff that he would look into her
(Doc. 24 ¶ 155; Doc. 26 ¶ 155.)
written statements from Barlow and Yeager regarding the event.
(Doc. 24 ¶ 156; Doc. 26 ¶ 156.)
Barlow wrote that, on the night in
question, she was trying to stay warm by leaning on a desk in front
of a computer vent which blows warm air, when Yeager entered the
room and whispered to her, “Do not put your head down when Sharon
(Doc. 24 ¶ 157; Doc. 26 ¶ 157.)
Yeager wrote the
following: she entered the ICU and saw Barlow sitting at a desk
with her head down and her hands in front of her face next to a
computer; she told Barlow she was not allowed to lay her dead down
on the desk; Barlow replied that she was trying to keep warm by
keeping her face and hands by the hot air blowing out of the
computer; she told Barlow that “it looks bad when you have your
head down at the desk, especially when you have other people
working back here like [Plaintiff] that doesn’t normally work back
It makes the unit look bad.”
(Doc. 24 ¶ 158; Doc. 26 ¶
McPhillips attempted to follow up with Plaintiff regarding
the written statements but was unable to get Plaintiff to speak to
(Doc. 24 ¶ 159; Doc. 26 ¶ 159.)
On January 11, 2011, Plaintiff called the Hospital to let them
know she was running late due to a snow storm, and was told to
start doing admissions work when she arrived.
26 ¶ 160.)
(Doc. 24 ¶ 160; Doc.
Later that evening, Plaintiff asked a supervisor where
she would be assigned from 11:00 p.m. to 7:00 a.m.
supervisor was not sure because she was waiting to see if other
staff called off due to the snow.
At about 9:45 p.m., the
supervisor told Plaintiff to continue doing admissions through the
rest of her shift.
However, at about 11:30 p.m., a coworker
called Plaintiff and told her that she had been assigned to work as
a nursing assistant.
A nursing assistant, also called a caregiver, supports a nurse
in providing patient care.
(Doc. 24 ¶ 161; Doc. 26 ¶ 161.)
caregiver calls off work and more nurses are present than
caregivers, a nurse is temporarily assigned to cover caregiver
(Doc. 24 ¶ 162; Doc. 26 ¶ 162.)
were also assigned the caregiver role.
Nurses other than Plaintiff
(Doc. 24 ¶ 163; Doc. 26 ¶
Some nurses ask to be assigned the caregiver role.
¶ 164; Doc. 26 ¶ 164.)
A nurse assigned to caregiver duty is paid
the same as when working her regular nursing duty.
(Doc. 24 ¶ 165;
Doc. 26 ¶ 165.)
Plaintiff testified that the only “inferior work assignment”
she believes she received is the temporary assignment to caregiver
duty given by Yeager for part of her shift on January 11, 2011.
(Doc. 24 ¶ 166; Doc. 26 ¶ 166.)
In her deposition, when asked what
was wrong with the caregiver assignment, Plaintiff stated:
Well, first, we were a half hour into our
shift. Second of all, it was not what was
conveyed to me earlier that day, or at quarter
to 10. Third, it was my coworker telling me
this. And fourth, Bridget[te Yeager] had
expressed displeasure to my fellow workers that
I had ruined her Christmas.
(Doc. 24 ¶ 167; Doc. 26 ¶ 167.)
On January 14, 2011, Plaintiff e-mailed Treasure a letter
resigning from the Hospital, purportedly because of “the ongoing
retaliatory behaviors of management.”
(Doc. 24 ¶ 168; Doc. 26 ¶
On January 14, 2011, Treasure replied by e-mail, noting that
the investigation into Plaintiff’s concerns would continue.
24 ¶ 169; Doc. 26 ¶ 169.)
On January 21, 2011, an investigatory meeting was held
regarding Plaintiff’s December 22, 2010, complaint.
170; Doc. 26 ¶ 170.)
(Doc. 24 ¶
Plaintiff refused to attend the investigatory
(Doc. 24 ¶ 171; Doc. 26 ¶ 171.)
On January 21, 2011, Plaintiff filed a second EEOC charge,
alleging that the comment made by Yeager on December 20, 2010, and
her temporary assignment to caregiver duty for part of her shift on
January 11, 2011, were acts of retaliation for her prior complaints
(Doc. 24 ¶ 172; Doc. 26 ¶ 172.)
On January 26, 2011, Plaintiff began her employment with
(Doc. 24 ¶ 173; Doc. 26 ¶ 173.)
On February 9, 2011, McPhillips sent Plaintiff a letter again
asking Plaintiff to meet regarding her December 22, 2010,
complaint, but noting that if he did not hear from her within 24
hours, the matter would be closed.
(Doc. 24 ¶ 174; Doc. 26 ¶ 174.)
On February 10, 2011, Plaintiff responded to McPhillips by e-mail
that she had “already provided you and the facility with all the
essential information; therefore I will not be attending the
(Doc. 24 ¶ 175; Doc. 26 ¶ 175.)
Plaintiff believes she was retaliated against in the following
ways: Frantz hung up on her, Demcher would not say good morning to
her, Yeager told a male nurse to stay away from her, Curry leered
at her on three occasions (Doc. 24 ¶ 176; Doc. 26 ¶ 176), a
scheduling change, untimely tuition reimbursement, supervisors
ignoring her, other scheduling issues, Supervisor Bridgette
Yeager’s use of vulgar language towards her, and Yeager’s comments
about her to other Hospital employees (Doc. 26 ¶ 176).
Defendant posed an interrogatory to Plaintiff, asking her to
identify each and every employee at the Hospital that she believes
was treated more favorably than she was due to gender and how each
was treated more favorably.
(Doc. 24 ¶ 177; Doc. 26 ¶ 177.)
Plaintiff responded only that “Jeffry [sic] Vaillant who committed
multiple instances of sexual harassment was not terminated for
engaging in repeated instances of sexual harassment.”
(Doc. 24 ¶
178; Doc. 26 ¶ 178.)
Plaintiff filed her Complaint (Doc. 1) on July 19, 2011.
filed her First Amended Complaint (Doc. 16) on February 15, 2012.
The First Amended Complaint contains the following six counts:
Count I - Violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000(e), et seq., as amended, for Gender/Sex
Discrimination; Count II - Violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., as amended, for
Sexual Harassment-Hostile Work Environment; Count III - Violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e),
et seq., as amended, for Retaliation; Count IV - Violation of
Pennsylvania Human Relations Act, 43 P.S. § 955(A), et seq., for
Sex Discrimination; Count V - Violation of Pennsylvania Human
Relations Act, 43 P.S. § 955(A), et seq., for Sexual HarassmentHostile Work Environment; and Count VI - Violation of Pennsylvania
Human Relations Act, 43 P.S. § 955(A), et seq., for Retaliation.
As noted previously, Defendant filed Defendant’s Motion for
Summary Judgment (Doc. 23) on May 2, 2012.
The motion was
accompanied by Defendant’s Statement of Material Facts (Doc. 24)
and Defendant’s Brief in Support of Motion for Summary Judgment
On May 14, 2012, Plaintiff filed Plaintiff’s Response
to Defendant’s Statement of Material Facts (Doc. 26), Plaintiff’s
Statement of Additional Undisputed Material Facts which Preclude
Summary Judgment (Doc. 27), and Plaintiff’s Opposition to
Defendant’s Motion for Summary Judgment (Doc. 28).
Defendant’s Reply Brief in Support of Motion for Summary Judgment
(Doc. 31) on May 31, 2012.
Therefore, this motion is fully briefed
and ripe for disposition.
A. Motion for Summary Judgment Standard
Summary judgment is appropriate when the movant demonstrates
there is no “genuine issue as to any material fact.”
Fed. R. Civ.
“[T]his standard provides that the mere existence of
some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
“An issue is genuine only if there is a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving
party, and a factual dispute is material only if it might affect
the outcome of the suit under governing law.”
Kaucher v. County of
Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson, 477 U.S.
In determining whether a genuine issue of fact exists, a
court must resolve all factual doubts and draw all reasonable
inferences in favor of the nonmoving party.
Conoshenti v. Public
Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (citation
The initial burden is on the moving party to show an absence
of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477
U.S. 317, 330 (1986) (citations omitted).
The moving party may
meet this burden by “pointing out to the district court  that
there is an absence of evidence to support the nonmoving party’s
case when the nonmoving party bears the ultimate burden of proof.”
Id. at 325.
The non-moving party may not rest on the bare
allegations contained in his or her pleadings, but is required by
Federal Rule of Civil Procedure 56 to go beyond the pleadings by
way of affidavits, depositions, answers to interrogatories or the
like in order to demonstrate specific material facts which give
rise to a genuine issue.
Id. at 324.
Where underlying facts are in dispute, the facts are viewed in
the light most favorable to the non-moving party.
William Patterson College of N.J., 260 F.3d 265, 267 (3d Cir. 2001)
(citing Drinkwater v. Union Carbide Corp., 904 F.2d 853, 854 N.1
(3d Cir. 1990).
“In considering a motion for summary judgment, a
district court may not make credibility determinations or engage in
any weighing of evidence.”
Anderson, 477 U.S. at 255.
when evidentiary facts are in dispute, when the credibility of
witnesses may be in issue, or when conflicting evidence must be
weighed, a full trial is usually necessary.
B. Defendant’s Motion for Summary Judgement
Defendant asserts it is entitled to judgment in its favor on
all claims against it.
(Doc. 25 at 53.)
For the reasons discussed
below, we conclude Defendant is not entitled to judgment in its
favor on Plaintiff’s sexual harassment-hostile work environment
claims under Title VII and the PHRA, Counts II and V, and is
entitled to summary judgment on all other claims.6
Sexual Harassment-Hostile Work Environment
Defendant maintains that Plaintiff’s claims for sexual
harassment-hostile work environment under Title VII and the
Pennsylvania Human Relations Act (“PHRA”) cannot go forward because
she cannot show the existence of respondeat superior liability.
(Doc. 25 at 29-37.)
Title VII makes it unlawful for an employer “to discriminate
against any individual with respect to his compensation, terms,
conditions or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.”
U.S.C. § 2000e-2(a)(1).
“Hostile work environment harassment
Because Pennsylvania courts have construed the protection of
the two acts interchangeably, the same analysis applies to Title
VII and PHRA claims. See Huston v. Proctor & Gamble Paper Products
Corp., 568 F.3d 100, 104 n.2 (3d Cir. 2009) (citing Weston v.
Pennsylvania, 251 F.3d 420, 426 n.3 (3d Cir. 2001)).
occurs when unwelcome sexual conduct unreasonably interferes with a
person’s performance or creates an intimidating, hostile, or
offensive working environment.”
Weston v. Pennsylvania, 251 F.3d
420, 425-26 (3d Cir. 2001) (citing Meritor Savings Bank FSB v.
Vinson, 477 U.S. 57, 65 (1986)).
The Supreme Court has repeatedly stated that “Title VII does
not set forth ‘a general civility code for the American
Burlington Northern and Santa Fe Ry. Co. v. White,
548 U.S. 53, 57 (2006) (quoting Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, 80 (1998)).
The Court has also stated
that “[a] recurring point in [our] opinions is that simple teasing,
offhand comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes in the ‘terms and
conditions of employment.’”
Clark County School District v.
Breeden, 532 U.S. 268, 271 (2001) (quoting Faragher v. Boca Raton,
524 U.S. 775, 788 (1998) (alterations in Clark County).
Faragher, the Court noted that properly applied judicial standards
for sexual harassment “will filter out complaints attacking the
ordinary tribulations of the workplace, such as the sporadic use of
abusive language, gender-related jokes, and occasional teasing.”
524 U.S. at 788 (internal quotation omitted).
To state a claim for discrimination resulting from a hostile
work environment, an employee must show that “‘(1) the employee
suffered intentional discrimination because of his sex, (2) the
discrimination was [severe or pervasive]7, (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.’”
Andreoli v. Gates, 482 F.3d 641, 643 (3d Cir. 2007) (quoting Weston
v. Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001)).
For the sake of this motion, Defendant does not argue that
Plaintiff cannot meet the first four prongs of the test.
However, Defendant maintains Plaintiff cannot satisfy the
fifth prong because she cannot establish employer liability in the
face of the prompt and adequate remedial action taken by Defendant
upon notice of Plaintiff’s complaints of harassment.
(Doc. 25 at
Regarding the fifth prong, Andreoli explained that
[a]n employer will be liable for the
harassing conduct of the alleged victim’s
coworker8 if the employer was “negligent or
The Third Circuit originally stated this element as
“pervasive and regular,” but later changed the standard to conform
with the Supreme Court’s use of the disjunctive “severe or
pervasive.” See Jensen v. Potter, 435 F.3d 444, 449 n.3 (3d Cir.
2006) (overruled in part on other grounds by Burlington Northern &
Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)).
The standard applies where the harasser is not in a
supervisory position over the victim. See, e.g., Fornicoia v.
Haemonetics Corp., 131 F. App’x 867, 871 (3d Cir. 2005) (not
precedential). “If supervisors create the hostile environment, the
employer is strictly liable though an affirmative defense may be
available where there is no tangible employment action.” Jensen,
435 F.3d at 452 (citing Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 765 (1998); Faragher, 524 U.S. at 807-08.)
reckless in failing to train, discipline,
fire or take remedial action upon notice of
harassment.” Bonenberger v. Plymouth Twp.,
132 F.3d 20, 26 (3d Cir. 1997) (citing Couton
v. BMW of N. Am., Inc., 29 F.3d 103, 106 (3d
Cir. 1994)). An employer is negligent if it
“knew or should have known about the
harassment, but failed to take prompt and
adequate remedial action.” Jensen v. Potter,
435 F.3d 444, 453 (3d Cir. 2006) (internal
quotations omitted). Even if the remedial
action does not stop the alleged harassment,
it is “adequate” if it is “reasonably
calculated” to end the harassment. Id.
(quoting Knabe v. Boury Corp., 114 F.3d 407,
412-13 (3d Cir. 1997)).9
In most cases, the focus will be on the
timing and nature of the employer’s response.
We have found an employer’s actions to be
adequate, as a matter of law, where
management undertook an investigation of the
employee’s complaint within a day after being
notified of the harassment, spoke to the
alleged harasser about the allegations and
the company’s sexual harassment policy, and
warned the harasser that the company does not
tolerate any sexual comments or actions. See
Knabe v. Boury Corp., 114 F.3d 407 (3d Cir.
482 F.3d at 644.
The Third Circuit clarified that the showing of
prompt and remedial action is not an affirmative defense; rather it
is a plaintiff’s burden to show the defendant did not take such
Fornicoia, 131 F. App’x at 871 (citing Kunin v. Sears
Roebuck and Co., 175 F.3d 289, 294 (3d Cir. 1990)).
Defendant maintains “the facts, even when read in the light
Andreoli notes that “[a] remedial action that stops the
harassment is adequate as a matter of law.” 482 F.3d at 644 n.2
(citing Knabe, 114 F.3d at 411 n.8; Jensen, 435 F.3d at 453;
Weston, 251 F.3d at 427).
most favorable to Plaintiff, irrefutably demonstrate that the
Hospital took prompt and adequate remedial action.”
(Doc. 25 at
Defendant notes that relevant disputed facts include whether,
at the meeting with Curry on August 20, 2009, Plaintiff reported
one or more inappropriate comments by Vaillant and whether
Plaintiff repeatedly declined Curry’s offers to intervene or
expected Curry to handle the situation.
(Doc. 25 at 31 n.9.)
Defendant cites several cases in support of the assertion that the
issuance of a verbal warning nineteen (19) days after Plaintiff’s
first complaint on August 20, 2009, and the issuance of a strong
final warning twenty-seven (27) days after her first complaint
preclude liability here (Doc. 25 at 32-34).
contends its actions were adequate in that they put an end to the
(Doc. 25 at 34.)
Plaintiff responds that “[i]n the unique circumstances of this
case, respondeat superior liability is established during two
(Doc. 28 at 38.)
The first period is from when
Vaillant began working at SMCE to August 20, 2009, when Plaintiff
first complained to Curry.
The second period is the time
after Plaintiff’s initial report.
We conclude that respondeat superior liability is not
appropriate for the first time period, but is not precluded as a
matter of law during the second.
During the first time period,
Plaintiff did not make any complaints about Vaillant’s conduct.10
As Defendant points out in its reply brief, Plaintiff’s argument
that Defendant should be liable based on its allegedly deficient
interview and reference check policy urges the imposition of
liability not supported by the law of this Circuit or Title VII law
(Doc. 31 at 7-10.)
In support of its argument Plaintiff cites only a Tenth
Circuit case, Griffin v. City of Opa-Locka, 261 F.3d 1295 (10th Cir.
2001), cert. denied, 535 U.S. 1033 (2002).
parenthetical notes that in Griffin
Title VII sexual harassment claim upheld
where the employer had knowledge of an
employee’s sexual harassment prior to hiring
the employee or where prior acts of sexual
harassment at another job would be discovered
with appropriate investigation, supporting
conclusion that employee would sexually
harass female employees if hired by
(Doc. 28 at 40-41.)
We conclude the parenthetical provided does not accurately
reflect Griffin’s inquiry and findings, nor does the case support
the proposition for which it is offered.
The discussion in Griffin
of whether a city manager’s prior acts of sexual harassment at
other jobs were properly considered relates to the municipality’s
The only report about possible inappropriate conduct was
made by another nurse (Bridgette Shultz) to fifth floor nurse
manager Demcher who investigated the incident and found any
allegation of sexual harassment unfounded. (Doc. 24 ¶¶ 17-25; Doc.
26 ¶¶ 17-25.)
liability under 42 U.S.C. § 1983 and the application of Monell v.
Dep’t of Social Services of the City of New York, 436 U.S. 658, 663
(1978), and Board of County Commissioners of Bryan County, Oklahoma
v. Brown, 520 U.S. 397, 411 (1997).
Griffin, 261 F.3d at 1307,
Thus, the specific questions before the court were whether
the prior acts of harassment were admissible to demonstrate
Monell’s municipal custom or policy requirement, 261 F.3d at 1315,
and whether they could go to show that the municipal hiring
decision reflects deliberate indifference to the risk that
violation of a particular constitutional or statutory right would
follow the decision under Bryan County, 520 U.S. at 1313.
the latter, Griffin stated that in cases where a plaintiff presents
a § 1983 claim based on a hiring decision and inadequate screening,
the Supreme Court set out the proper standard in Bryan County:
“Only where adequate scrutiny of an
applicant’s background would lead a
reasonable policymaker to conclude that the
plainly obvious consequence of the decision
to hire the applicant would be the
deprivation of a third party’s federally
protected right can the official’s failure to
adequately scrutinize the applicant’s
background constitute ‘deliberate
261 F.3d 1313 (quoting Board of County Commissioners of Bryan
County, Oklahoma v. Brown, 520 U.S. 397, 411 (1997)).
Here there is not and cannot be a § 1983 claim based on a
hiring decision, and the question of the employer’s “deliberate
indifference” is not pertinent to the Title VII inquiry of whether
the private employer’s response to an employee’s claim of sexual
harassment was prompt and adequate.
Therefore, Plaintiff’s claim
that Defendant is liable for sexual harassment in the period from
Vaillant’s first day to August 20, 2009, based on a theory of
inadequate screening is without merit.11
Our conclusion regarding the first time period does not mean
that Defendant’s knowledge of prior sexual harassment claims is of
As noted previosly, Defendant would have us find
that nineteen (19) days from complaint to investigation and twentyseven (27) days from complaint to final warning is a prompt
response as a matter of law.
(Doc. 31 at 11.)
However, given the
facts of this case, we cannot agree.
Defendant maintains that the Third Circuit’s decision in Neely
v. McDonald’s Corp., 340 F. App’x 83 (3d Cir. 2009) (not
precedential), precludes liability in this case.
(Doc. 25 at 34.)
In Neely, the plaintiff provided a written complaint of sexual
harassment to the restaurant manager who called her supervisor
about the complaint.
The supervisor initiated an investigation and
issued a written warning to the offending employee sixteen (16)
Plaintiff does not argue (nor would the facts support) that
Defendant’s liability during the first time period is based on what
it “should have known” in the Jensen framework for respondeat
superior liability. Jensen, 435 F.3d at 453 (employer liability if
the employer “knew or should have known about the harassment, but
failed to take prompt and adequate remedial action”).
days after the initial complaint. 340 F. App’x at 84.
supervisor also had a disciplinary meeting with the offending
employee and scheduled him and Neely on different shifts.
The Third Circuit concluded the defendant’s remedial measure were
prompt and adequate.
Id. at 86.
As noted above, the parties dispute whether Plaintiff told
Curry not to speak with Vaillant.
Taking as true the facts
asserted by the non-moving party, we must assume for purposes of
this motion that Plaintiff did not tell Curry not to speak with
Vaillant or otherwise intervene.
We find the significant distinguishing factor between the
circumstances of this case and Neely is that an investigation was
undertaken in Neely immediately after the complaint was lodged and
here no investigation was undertaken until two days after further
allegations of sexual harassment were lodged on September 6, 2009,
some nineteen days after Plaintiff’s initial complaint to Curry.12
Defendant took no remedial measures regarding Plaintiff’s August
20, 2009, complaint of sexual harassment, nor is there any
indication that Defendant planned to do so.
We might agree with
Defendant that the actions taken beginning on September 8, 2009, in
In several other cases cited by Defendant in support of the
promptness of its response, an investigation of the incident was
undertaken immediately. See Indest v. Freeman Decorating, Inc.,
164 F.3d 258, 267 (5th Cir. 1999); Cooper v. Wal-Mart Transp., LLC,
Civ. A. No. H-08-0085, 2010 WL 2522625 (S.D. Tex. June 18, 2010);
Foley v. Proctor & Gamble Distributing Co., No. Civ. A. 01-11314RWZ, 2003 WL 21696544 (D. Mass. July 21, 2003).
response to the September 6, 2009, complaints would be considered
prompt and adequate as a matter of law if that were the question
before us, that is, if Plaintiff had not complained to Curry of
Vaillant’s sexual harassment on August 20th.
But this is not the
case, and we cannot ignore the previous nineteen days of
inactivity, particularly in light of the fact that Vaillant engaged
in harassing behavior after August 20th.
Defendant’s inactivity is particularly striking in light of
Vaillant’s employment history.
We conclude a reasonable jury would
not necessarily find that a nursing director took prompt action
where she did nothing for nineteen (19) days after being presented
with allegations of sexual harassment by a recently hired employee
and the nursing director knew his record from his former employer
contained two charges of sexual harassment, one of which was the
cause of his discharge.13
This conclusion is bolstered by the fact
that Curry was also made aware of questionable behavior by Vaillant
related to nurse Bridgette Schultz which occurred earlier in
August: Carol Demcher, the fifth floor nurse manager who
investigated the August 7, 2009, incident involving Schultz sent
Curry a memo, and Plaintiff told Curry of the incident during their
August 20, 2009, conversation.
(Doc. 24 ¶¶ 16-25; Doc. 26 ¶¶ 16-
Even if we assume that Plaintiff told Curry not to talk
with Vaillant, given Vaillant’s history of harassment, a reasonable
jury would not necessarily conclude that liability was precluded:
remedial measures other than talking with Vaillant about
Plaintiff’s specific complaints could have been undertaken.
Although Demcher could not confirm the reporting nurse’s
allegations and ultimately did not conclude that Vaillant had
engaged in sexually harassing behavior (id.), awareness of the
incident should have, at the very least, alerted Curry, SMCE’s
nursing director, to pay close attention to Vaillant’s behavior and
promptly respond to any allegation of impropriety.
Because Defendant did not respond to Plaintiff’s August 20,
2009, complaint until two days after additional complaints were
made by Plaintiff and two other nurses on September 6, 2009, we
cannot say, as a matter of law, that Defendant provided a prompt
response to the August 20th complaint.
Thus, we conclude this case
presents a jury question whether Defendant’s action was prompt.
Therefore, Defendant is not entitled to summary judgment on
Plaintiff’s Sexual Harassment-Hostile Work Environment claims,
Counts II and V of Plaintiff’s First Amended Complaint.14
Defendant maintains that Plaintiff’s claims for retaliation
under Title VII and the Pennsylvania Human Relations Act (“PHRA”)
cannot go forward because she cannot establish a prima facie case
of retaliation and Plaintiff cannot show Defendant’s proffered
legitimate, non-retaliatory reasons for its actions are pretextual.
Plaintiff’s Sexual Harassment-Hostile Work Environment
claims go forward in all respects as Defendant only assumed for the
sake of this motion that Plaintiff could meet the first four prongs
of the relevant inquiry. (See Doc. 25 at 29.)
(Doc. 25 at 37-52.)
42 U.S.C. § 2000e-3(a), Title VII’s retaliation provision,
provides in relevant part that “[i]t shall be an unlawful
employment practice for an employer to discriminate against any of
his employees . . . because he has opposed any practice made an
unlawful employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any manner
in an investigation.”
A retaliation claim under either Title VII
or the PHRA where the plaintiff claims the defendant’s stated
reasons for its actions are a pretext for discrimination is
governed by the three-part McDonnell Douglas framework.
Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)).
Under the three-part framework, the plaintiff must first make
out a prima facie case.
See, e.g., Moore v. City of Philadelphia,
461 F.3d 331, 340 (3d Cir. 2006).
If the plaintiff makes her prima
facie showing, the defendant then has the burden of producing a
legitimate, non-retaliatory reason for its conduct.
F.3d at 342.
The burden then shifts back to the plaintiff to show
that the employer’s proffered reason was false and retaliation was
the real reason for the adverse action.
At the summary
judgment stage, “a plaintiff must produce some evidence from which
a jury could reasonably reach these conclusions.”
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).
Prima Facie Case
Defendant first argues that Plaintiff cannot establish the
second and third elements of her prima facie case.
For the reasons
discussed below, we concur.
To establish a prima facie case of retaliation, a plaintiff
must show “‘(1) she engaged in activity protected by Title VII; (2)
the employer took an adverse action against her; and (3) there was
a causal connection between her participation in the protected
activity and the adverse employment action.’”
Moore, 461 F.3d at
341 (quoting Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir.
Moore explained that the Third Circuit’s previous
formulation of the requirements of a retaliation claim are not
consistent with the Supreme Court decision in Burlington Northern &
Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)). 461 F.3d at 341.
Until recently, we required those claiming
retaliation under Title VII-like those
claiming discrimination made unlawful by that
provision-to show an “adverse employment
action” that “alters the employee’s
compensation, terms, conditions, or
privileges of employment, deprives him or her
of employment opportunities, or adversely
affects his or her status as an employee.”
Robinson v. City of Pittsburgh, 120 F.3d
1286, 1300 (3d Cir. 1997) (internal quotation
marks omitted). Employees claiming
retaliation by workplace harassment,
therefore, were required to show retaliatory
harassment that was “severe or pervasive
enough to create a hostile work environment”
that would violate the anti-discrimination
provision of Title VII’s protection from
retaliation. Jensen v. Potter, 435 F.3d 444,
449 (3d Cir. 2006).
Defendant does not contest that Plaintiff engaged in protected
activity, but maintains the second and third elements are at issue.
To establish the second element, a plaintiff must show “that a
reasonable employee would have found the challenged actions
‘materially adverse’ in that they ‘well might have dissuaded a
reasonable worker from making or supporting a charge of
Moore, 461 F.3d at 341 (quoting Burlington
Northern, 548 U.S. at 68.)
The “material adversity” requirement is
intended to “separate significant from trivial harms.”
548 U.S. at
In Burlington Northern, . . . the
Supreme Court disagreed with a formulation
like the one we adopted in Robinson and
Jensen. 126 S. Ct. at 2410 (citing Robinson,
120 F.3d at 1300, as an example of this
standard). It found that the discrimination
and retaliation provisions of Title VII have
different statutory language and different
purposes, and accordingly, “that the antiretaliation provision, unlike the substantive
provision, is not limited to discriminatory
actions that affect the terms and conditions
of employment.” Id. at 2412-13. Because the
discrimination and retaliation provisions
“are not coterminous,” the Court concluded
that “[t]hat the scope of the antiretaliation provision extends beyond
workplace-related or employment-related
retaliatory acts or harm.” Id. at 2414.
Consistent with this view, the Court held
that a plaintiff claiming retaliation under
Title VII must show that a reasonable
employee would have found the alleged
retaliatory actions “materially adverse” in
that they “well might have dissuaded a
reasonable worker from making or supporting a
charge of discrimination.” Id. at 2415.
Moore, 461 F.3d at 341.
Moore explained that, when evaluating whether actions are
materially adverse, “we must remain mindful that ‘it is important
to separate significant from trivial harms’ because ‘[a]n
employee’s decision to report discriminatory behavior cannot
immunize that employee from those petty slights or minor annoyances
that often take place at work and that all employees experience.”
461 F.3d at 346 (quoting Burlington Northern, 548 U.S. at 68).
objective “reasonable employee” standard is important because “[i]t
avoids the uncertainties and unfair discrepancies that can plague a
judicial effort to determine a plaintiff’s unusual subjective
Burlington Northern, 548 U.S. at 68-69.
Northern also stressed the importance of the general terms used in
We phrase the standard in general terms
because the significance of any given act of
retaliation will often depend upon the
particular circumstances. Context matters.
“The real social impact of workplace behavior
often depends on a constellation of
surrounding circumstances, expectations, and
relationships which are not fully captured by
a simple recitation of the words used or the
physical acts performed.” Oncale, supra, at
81-82, 118 S. Ct. 998. A schedule change in
an employee’s work schedule may make little
difference to many workers, but may matter
enormously to a young mother with school-age
children. Cf., e.g., Washington, supra, at
662 (finding flex-time schedule critical to
employee with disabled child). A
supervisor’s refusal to invite an employee to
lunch is normally trivial, a nonactionable
petty slight. But to retaliate by excluding
an employee from a weekly training lunch that
contributes significantly to the employee’s
professional advancement might well deter a
reasonable employee from complaining about
discrimination. . . . Hence, a legal standard
that speaks in general rather than specific
prohibited acts is preferable, for an “act
that would be immaterial in some situations
is material in others.” Washington, supra,
548 U.S. at 69.
To establish the third element of her prima facie claim, the
plaintiff must show “a causal connection between the plaintiff’s
opposition to . . . unlawful discrimination and an action that
might have dissuaded a reasonable worker from making or supporting
a charge of discrimination.”
Moore, 461 F.3d at 341-42.
noted that the third element “identifies what harassment, if any, a
reasonable jury could link to a retaliatory animus.”
435 F.3d at
When looking at the second and third elements of a plaintiff’s
prima facie case, we keep in mind several general principles:
“[w]hen one employee makes a charge under Title VII against
another, some strain on workplace relationships is inevitable,”
Jensen, 435 F.3d at 452 (citing Von Gunten v. Maryland, 243 F.3d
858, 870 (4th Cir. 2001), overruled on other grounds by Burlington
Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006));
“[m]ere expressions of opinion are . . . not retaliatory,” Jensen,
435 F.3d at 452; “Title VII prohibits retaliation against accusers,
not support for the accused,” id.; and “while we must consider the
totality of the circumstances, some circumstances do not affect our
analysis because they are not retaliatory,” id.
Finally, as noted
in Moore, our task is to “identify what materially adverse actions
a reasonable jury could link to a retaliatory animus.”
461 F.3d at
346 (internal quotation omitted).
Plaintiff first points to two adverse actions for which
“temporal proximity alone suggests . . . retaliation” (Doc. 28 at
45): on September 18, 2009, Plaintiff was advised she could no
longer work the scheduled hours she had been working; and Defendant
failed to timely provide Plaintiff with tuition reimbursement (id.
Plaintiff also points to the following as adverse
actions in support of her retaliation claim:
including Curry and Demcher, repeatedly ignored Lawrence; there
were occasions after Lawrence reported the harassment that she was
initially assigned to work on the same floor as Vaillant even
though she was given assurances otherwise; she was forced to listen
to Vaillant’s taped reports on patients; when she refused to work
on the same floor as Vaillant, she was threatened with
insubordination; and Supervisor Yeager’s conduct, including vulgar
language and comments about Plaintiff to other Hospital employees.16
As Defendant points out, noticeably absent from this
recitation is Plaintiff’s assertion in her Amended Complaint that
she was retaliated against by being given inferior work
assignments. (See Doc. 31 at 14 (citing Doc. 16 ¶¶ 62, 66).)
Plaintiff’s failure to mention this basis for her retaliation claim
in her recitation of adverse actions she experienced or refute
Defendant’s supporting brief argument that the “inferior work
assignment” basis of her retaliation claim must fail (see Doc. 25
at 40-42), leads us to conclude that Plaintiff’s has waived this
(Doc. 28 at 47-48.)
We will now review these allegedly adverse actions in the
context of the legal framework set out above.
We will look at each
proffered reason independently and also, for those actions which
can be considered retaliatory, we consider the whole.
Plaintiff first points to her schedule change as an adverse
(Doc. 28 at 46.)
We conclude Plaintiff has not
met her burden of showing that this is an adverse employment
Plaintiff was notified of the change on September 18, 2009,
almost one month after she lodged her first complaint on August 20,
2009, and twelve (12) days after she lodged her second complaint on
August 6, 2009.
As set out in the Background section of this
Memorandum, on September 18, 2009, Lisa Schetrum, patient
coordinator, informed Plaintiff that, because of changes to the
Kronos timekeeping system, as of October 4, 2009, Plaintiff’s
eight-hour shift could no longer be manually entered so as to avoid
(Doc. 24 ¶ 98.)
Although Plaintiff admits that there
basis of her retaliation claim.
We further note that we only review those allegations upon
which Plaintiff relies to defeat summary judgment of her
retaliation claim, that is, those set out in the retaliation
argument section of her brief (Doc. 28 at 43-48).
Schetrum’s responsibilities included clinical oversight for
the float pool. (Curry Dep. 9:9-15 (Doc. 27-7 at 6).) Her duties
were changes to the Kronos system (Doc. 26 ¶ 99), she denies that
changes to the system precipitated the change in her schedule (Doc.
26 ¶ 98).
Plaintiff does not point to specific evidence in support
of the assertion.
She relies only upon her recollection of what
Treasure told her (see Doc. 26 ¶ 98)–-a recollection not supported
by his deposition testimony or hers.
Thus we find that no credible
evidence refutes Curry’s explanation for the timing and rationale
behind the schedule change.18
In this context, Plaintiff’s argument
in this role included performance appraisals, scheduling, and
overall day-to-day management of that group of individuals. (Curry
Dep. 9:16-22 (Doc. 27-7 at 6).)
After multiple schedule changes and accommodations,
Plaintiff was scheduled to work three twelve-hour shifts each week
and one eight-hour shift every other week. (Curry Dep. 84:10-85:12
(Doc. 27-7 at 24-25).) For the week in which she worked three
twelve-hour shifts and one eight-hour shift, Plaintiff would have
been entitled to four hours of overtime if she had punched in the
time clock. (Curry Dep. 85:13-24 (Doc. 27-7 at 25).) Curry could
not justify paying Plaintiff overtime to accommodate her schedule
so it was agreed that she would not punch in when she worked the
eight-hour shift and Plaintiff would be manually credited with
four-hours each week. (Curry Dep. 85:20-86:2 (Doc. 27-7 at 25).)
Initially Curry was manually entering the changes, then Schetrum
took over that responsibility. (Curry Dep. 86:5-6 (Doc. 27-7 at
Curry provided an explanation for the timing and need for the
change at her deposition. Plaintiff could no longer work the
eight-hour shift every other week because of upgrades to the Kronos
system which had changed the process for scheduling and putting
calendars and time sheets into the system. (Curry Dep. 103:16104:2 (Doc. 27-7 at 29).) Where before the schedule changes could
be accomplished manually “without having anyone recognize [what]
was occurring,” a practice with which Schetrum was not comfortable,
the changes meant that Schetrum had to “preindicate [the
employee’s] schedule so that it would become apparent that
[Plaintiff] had an eight-hour shift that was generating overtime.
That was not necessarily prior.” (Curry Dep. 110:10-24 (Doc. 27-7
that the schedule change was retaliatory hinges on her assertion
that Curry was willing to violate Hospital policy before her
harassment claim and not willing to do so after (Doc. 27 ¶ 161).
This simplistic argument, without more, is not sufficient to meet
Further, we agree with Defendant that Plaintiff has not
addressed the reasonable employee aspect of this claimed adverse
action–-a showing which is her burden.
(See Doc. 31 at 14.)
assuming arguendo, that Plaintiff had attempted to make such a
showing, we would find that a reasonable employee would not have
found Curry’s and/or Schetrum’s actions materially adverse.
is no dispute that the Kronos system changes applied to all
(Doc. 24 ¶ 100; Doc. 26 ¶ 100.)
There is no dispute
at 31).) Curry stated that with the more stringent requirements in
terms of what had to be entered into Kronos “the concern would be
that, you know, it would be found that we were altering her
punch.” (Curry Dep. 104:2-6 (Doc. 27-7 at 25).) In answer to the
question of why that was a problem, Curry responded that “[i]t
wasn’t appropriate . . . [b]ecause it violated the Wage and Hour
rules.” (Curry Dep. 104:7-12 (Doc. 27-7 at 25).)
In Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. 2001),
abrogated in part by Burlington Northern and Santa Fe Ry. Co. v.
White, 548 U.S. 53 (2006), the Fourth Circuit Court found that the
plaintiff’s retaliatory harassment claim failed where the claimed
retaliation included the “imposition of generally applicable
departmental policies.” 243 at 870. We do not rely on Von Gunten
because the applicable standard when the case was decided was the
“severe or pervasive” retaliatory harassment standard rejected by
Burlington Northern as discussed previously in the text. However,
we note that implementation of policies which are applicable to all
employees generally could not be considered materially adverse
because the action would have occurred even in the absence of
engagement in a protected activity so could not dissuade a
that Defendant had uniquely accommodated Plaintiff’s preferred work
schedule–-accommodations afforded no other employee.
3-7; Doc. 26 ¶¶ 3-7.)
(Doc. 24 ¶¶
There is no credible dispute that the
initial method of adjusting Plaintiff’s schedule could not
(Doc. 24 ¶¶ 98-99; Doc. 26 ¶¶ 98-99.)
There is no
dispute that, in order for the accommodation to continue with the
Kronos system, different adjustments had to be made which
technically violated Hospital policy.
(Doc. 27 ¶¶ 158-159, 161;
Curry Dep. 104:2-12, 110:10-24 (Doc. 27-7 at 25, 31).)
There is no
dispute that Defendant remained willing to accommodate Plaintiff’s
needs within policy and practical parameters.
26 ¶ 101.)
(Doc. 24 ¶ 101; Doc.
In these circumstances, we conclude that Defendant’s
actions related to Plaintiff’s schedule would not dissuade a
reasonable employee from making or supporting a charge of
In other words, a reasonable employee who had been
provided with a unique schedule to accommodate her needs would not
be dissuaded from making or supporting a charge of discrimination
because her supervisor was unwilling to continue with that schedule
where violation of Hospital policy and wage and hour rules would
become apparent because of a system change unrelated to the
employee’s exercise of Title VII protected conduct.
reasonable employee from making or supporting a charge of
Plaintiff maintains that Defendant’s failure to timely provide
Plaintiff with tuition reimbursement was an adverse action.
28 at 46-47.)
We conclude it is not proper for
Plaintiff to raise
this claim for the first time in her opposition brief.
As Defendant points out, Plaintiff does not allege this basis
for her retaliation claim in her EEOC charges, her Complaint, or
her Amended Complaint.
(See Doc. 31 at 17.)
cannot amend her pleading through her brief responding to
Defendant’s summary judgment motion, see Bell v. City of
Philadelphia, 275 F. App’x 157, 160 (3d Cir. 2008) (not
precedential) (citing Shanahan v. City of Chicago, 82 F.3d 776, 781
(7th Cir. 1996); Gilmour v. Gates, McDonald & Co., 382 F.3d 1312,
1315 (11th Cir. 2004)), the tuition-reimbursement basis for her
retaliation claim fails.
Defendant also argues that Plaintiff’s attempted amendment
(Doc. 31 at 18.)
was a prerequisite to reimbursement.
Proof of Plaintiff’s grade
(Doc. 31 at 18.)
completed the class in the fall of 2009 but did not submit proof of
her grade until February 19, 2010 (Doc. 28 at 47; Doc. 31 at 18),
and she received reimbursement in October 2010.
Thus, her argument
that she was not reimbursed “until one year later in October 2010"
is both inaccurate and disingenuous.
Further, Plaintiff’s argument
that the failure to reimburse her tuition was an action for which
“temporal proximity alone suggests . . . retaliation for her report
of sexual harassment . . .” is undermined by the fact that her sixmonth delay in providing proof of her grade eliminates her
inference that she was entitled to reimbursement when she completed
(See Doc. 28 at 46-47.)
Because of these flaws in
Plaintiff’s presentation of her claim, as well as the fact that she
does not attempt to show that a reasonable employee would have
found this action materially adverse, we conclude the tuition
reimbursement basis of Plaintiff’s retaliation claim fails.
iii. Supervisor Slights
Plaintiff next complains that SMCE management, including
Demcher and Curry, repeatedly ignored her.
(Doc. 28 at 47.)
Although the “Statement of Facts” portion of Plaintiff’s brief
provides scant information regarding supervisors ignoring her (Doc.
28 at 28), Plaintiff does not provide details regarding being
“repeatedly ignored” in the argument portion of her brief, nor does
she attempt to show how this conduct rises to the level of an
adverse action (id. at 47).
Not only has Plaintiff not met her
burden on this issue, but we also concur with Defendant that, as
presented, we have no basis to conclude the alleged conduct amounts
to anything more than the petty slights or minor annoyances that
often take place at work from which Plaintiff cannot be immunized
based on her decision to report discriminatory behavior.
Burlington Northern, 548 U.S. at 68;
Assignment to Work with Vaillant
Moore, 461 F.3d at 346.
Plaintiff cites assignments to work with Vaillant as adverse
(Doc. 28 at 47.)
Plaintiff does not provide details
regarding this allegation or attempt to show how it rises to the
level of an adverse action.
Therefore, Plaintiff has not
met her burden of showing material adversity, and the claim fails.
We also conclude that the record’s notation of one instance where
Plaintiff was initially assigned to work with Vaillant (on November
1, 2009) cannot be considered materially adverse in that when
Plaintiff refused to work with him she was reassigned to the
emergency room with no repercussions.
Doc. 26 ¶¶ 124-127.)
(See Doc. 24 ¶¶ 124-127;
This conclusion is supported by evidence that
Treasure talked with Plaintiff about setting up a group meeting to
discuss accommodating her desire not to work with Vaillant (Doc. 24
¶ 109; Doc. 26 ¶ 109) and the meeting took place on November 19,
2009 (Doc. 24 ¶ 131; Doc. 26 ¶ 131).
Vaillant’s Taped Reports
Plaintiff cites being forced to listen to Vaillant’s taped
reports (on November 19, 2009) regarding patients he had cared for
as another instance of adverse action.
(Doc. 28 at 47.)
claim fails because Plaintiff does not provide details regarding
this allegation or attempt to show how it rises to the level of an
Further, listening to a taped report on
another floor rather than being on the same floor as Vaillant for
the usual report was an accommodation to Plaintiff’s desire not to
be in Vaillant’s presence.
Because information about patients must
be communicated from shift to shift and because there is no
indication that the taped recordings were in any way improper, we
conclude no reasonable employee could consider being “forced to
listen to Vaillant’s taped reports” to be a materially adverse
Threat of Insubordination
Plaintiff next cites being threatened with insubordination
when she refused to work with Vaillant as an adverse action.
28 at 47.)
Again, Plaintiff provides no support for this
assertion, and, therefore, this basis for her retaliation claim
Further, we conclude that this “threat” is not cited in its
proper context according to Plaintiff herself.
(See Doc. 28 at
Rather than being threatened with insubordination when she
refused to work with Vaillant (see Doc. 28 at 47),
told at the November 19th meeting that the Hospital would attempt to
accommodate her desire not to work on the same floor as Vaillant,
but that, given the small size of the facility and the needs of the
nursing units, they could not guarantee that Plaintiff would never
be on the same floor as Vaillant.
(Doc. 24 ¶ 132; Doc. 26 ¶ 132.)
Although Plaintiff’s Statement of Additional Undisputed
Material Facts Which Preclude Summary Judgment contains a reference
to being threatened with insubordination when she refused to work
with Vaillant (Doc. 27 ¶ 179), Plaintiff does not cite to any
record support in her opposition brief (Doc. 28).
Plaintiff was also told that there could be potentially serious
consequences if she refused to perform her assignment.
133; Doc. 26 ¶ 133.)
(Doc. 24 ¶
When Plaintiff asked what the consequences
would be, Treasure said she would be fired for insubordination.
(Doc. 27 ¶ 186.)
At the same meeting, Curry offered Plaintiff a
permanent position on the 6 North unit on the sixth floor of the
Hospital (Doc. 24 ¶ 134; Doc. 26 ¶ 134), and Plaintiff refused that
alternative (Doc. 24 ¶ 135; Doc. 26 ¶ 135).
Thus, taken in
context, the “threat” was in response to a hypothetical question
posed by Plaintiff at a meeting in which Plaintiff was offered
other accommodations which she refused.
does not take issue with Defendant’s assessment of the scheduling
needs of the facility.
vii. Yeager’s Conduct
Finally, Plaintiff cites two aspects of Yeager’s conduct as
adverse actions: that “she was exposed to the wrath” of Yeager’s
vulgar language (and Defendant did not appropriately respond to
Plaintiff’s related complaints); and Yeager’s comments to other
employees which suggested she was unhappy with Plaintiff for
reporting sexual harassment.
(Doc. 28 at 48.)
As with Plaintiff’s
other asserted adverse actions, Plaintiff does not attempt to show,
as is her burden, “that a reasonable employee would have found the
challenged action materially adverse.”
548U.S. at 68.
However, assuming arguendo she had done so, we will
first look at the independent actions attributed to Yeager and then
at Yeager’s conduct taken as a whole.
In this section of her brief, Plaintiff cites Jensen and
Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990), for
the proposition that “[w]here insults directly relate to a sexual
harassment complaint brought by the Plaintiff, they raise an
obvious inference of retaliatory animus.”
(Doc. 28 at 47 (citing
Jensen, 435 F.3d at 450; Andrews, 895 F.2d at 1482 n.3).)
Plaintiff also posits that “even where retaliatory conduct does not
occur until one year after an initial report of sexual harassment,
intervening antagonism tends to show seemingly unrelated incidents
were components of an integrated pattern of retaliation.”
at 48 (citing Jensen, 435 F.3d at 451 (citing Abramson, 260 F.3d at
Plaintiff concludes that “[t]he conduct of supervisor Yeager
demonstrates an obvious inference of retaliatory animus under
(Doc. 28 at 48.)
The vulgar language of which Plaintiff
complains includes the following: “[t]here was an incident in
October 2009 in which Supervisor Yeager was in Lawrence’s face
saying, shut my F’ing mouth” (Doc. 28 at 31); and “Nurse
Weicicoskie heard Yeager using curse words screaming in Lawrence’s
face, saying she was “f-ing and things are going to be done her
Additionally, Plaintiff contends Demcher took no
action when she reported the incident where Yeager yelled at
Plaintiff in October 2009, and neither Curry nor Treasure took any
action after they became aware that Yeager used obscene language in
front of Plaintiff at the nurse’s station.
(Doc. 28 at 31.)
Plaintiff’s first instance of the use of vulgarity is not
consistent with the record.
Plaintiff testified she was told by
other nurses that Yeager “was on the floor telling other nurses
that she was in my face telling me to shut my F-ing mouth. . . .
And I had said that never happened, that never took place.
no idea what they were talking about.
20 (Doc. 27-3 at 21).)
(Lawrence Dep. 313:8-10, 18-
Thus, although Plaintiff now maintains that
“Yeager was in Lawrence’s face saying, shut my F’ing mouth”
27 ¶ 192 (citing
Lawrence Dep. 312:22-313:20, 314:11-15; Doc. 28
at 31), Plaintiff did not testify, nor does the record otherwise
support, that the incident actually happened.
312:22-314:10 (Doc. 27-3 at 21-22).)
(See Lawrence Dep.
Because Plaintiff’s testimony
and her current version of events are far different, we will not
further discuss the version of events set out in the deposition
testimony because Plaintiff presents no argument as to the event as
Further, because there is no credible evidence to
support the October 2009 event as set out in Plaintiff’s brief,
this basis for her retaliation claim does not warrant further
We also conclude Plaintiff’s assertion that Yeager “used
obscene or vulgar language at a nurse’s desk in front of Lawrence”
does not support a finding that the alleged incident constitutes an
adverse action as Plaintiff neither claims nor infers that the
language was directed at her.21
The mere use of language deemed
inappropriate by a plaintiff, where that language is not directed
at the plaintiff, would not “dissuade a reasonable worker from
making or supporting a cause of discrimination.”
Northern, 548 U.S. at 68.
Similarly, Curry’s alleged failure to
react appropriately to information about Yeager’s language (Doc. 28
at 31) does not evidence a retaliatory motive where Curry had no
information that the language was directed at Plaintiff.
We turn now to Plaintiff’s assertion that “Yeager made
comments to other hospital employees which suggests that she was
unhappy with the fact that Lawrence reported sexual harassment by
an SMCE nurse.”
(Doc. 28 at 48.)
Plaintiff cites a previous
section of her brief where she sets out details of Yeager’s
comments to other employees, including the following: 1) in the
presence of nurse Weicicoskie she told a male nurse, Josh Lecht,
not to be alone with Plaintiff because she would get him in trouble
(Doc. 28 at 32); 2) Weicicoskie also heard her say to Lecht that
Plaintiff had ruined her Christmas, that she had to be called in on
The record contains evidence that Yeager’s mode of
communication and use of foul language was not restricted to the
incident cited by Plaintiff and at times was specifically directed
at individuals other than Plaintiff. (See Weicicoskie Dep. 56:457:8, 84:24-85:10 (Doc. 27-11 at 16, 23).) This general behavior
belies a retaliatory motive toward Plaintiff.
her night off to be questioned about things that had happened
between herself and Plaintiff, and “the sexual harassment thing
that Sharon Lawrence is going through is bull crap, and she didn’t
believe it” (id.); 3) she made comments to other staff members that
she should “keep her personal life out of here” (id.); 4)
Weicicoskie told Curry that Yeager was talking on the floor openly
about Plaintiff’s business and she didn’t appreciate it (id.); 5)
Plaintiff reported to Schetrum “what various retaliatory actions
taken by Yeager had done to her,” asked Schetrum “how many
opportunities does she get to do this to me?” and Schetrum replied
that “every time this was done” she reported it to Curry (id. at
32-33); and 6) in December 2010, Plaintiff received information
that Yeager had told another nurse, Diane Barlow, not to lay her
head down on the table “when Sharon Lawrence is working because she
will report you for sleeping and try to have you fired” (id. at
Even if taken as true that Yeager “was unhappy with the fact
that Lawrence reported sexual harassment by an SMCE nurse” (Doc. 28
at 48), the test for an adverse action is material adversity–-a
supervisor’s subjective assessment of the claim is not relevant
unless, as a result of the supervisory’s subjective feeling, she
subjects Plaintiff (or causes her to be subjected) to conduct that
would dissuade a reasonable worker from complaining about sexual
Plaintiff herself was not insulted, demeaned or
criticized for complaining of sexual harassment.
conversation with Lecht or the comment made to Barlow are taken as
true, they were not made in Plaintiff’s presence, nor is there any
indication that Yeager wanted her comments to be disseminated.
story related by others that Yeager falsely indicated she had
argued with Lawrence and directed vulgar language at her did not
make any reference to her sexual harassment claim.
Doc. 26 ¶ 120.)
(Doc. 24 ¶ 120;
The record shows that Yeager was a talker who at
times used vulgar language and others had problems with her
(See, e.g., Weicicoskie Dep. 52:20-53:2, 56:4-57:8,
83:15-85:10 (Doc. 27-11 at 15, 16, 23).)
If Yeager was unhappy
with Plaintiff, she also expressed negative feelings about
Vaillant, Weicicoskie reporting “[s]he said things like he was a
red flag and never should have been hired.”
53:3-9 (Doc. 27-11 at 15).)
Though Yeager’s workplace language may have been distasteful,
unprofessional, and definitely not the hallmark of good leadership,
we cannot agree with Plaintiff that the evidence shows Yeager’s
comments and conduct “demonstrate an obvious inference of
(Doc. 28 at 48 (citing Jensen).)
Jensen and Andrews, insults were almost exclusively made directly
to the plaintiffs or within earshot. 435 F.3d at 447; 895 F.2d at
In Jensen, the cumulative nature of the conduct directed
against the plaintiff (regular insults over a nineteen-month period
and being the victim of physically threatening behavior and
vandalism) was the basis for the finding of retaliation.
This is not a case where, as Plaintiff claims, the insults
directly relate to her sexual harassment claim (see Doc. 28 at 47
(citing Jensen, 435 F.3d at 450; Andrews, 895 F.2d at 1482 n.3).)
Therefore, they are lacking the “obvious inference of retaliatory
animus” which Plaintiff claims based on Jensen and Andrews.
Here the few instances of Yeager’s allegedly retaliatory
conduct cited by Plaintiff occurred over more than a one-year
period and, taken independently or together, do not exhibit the
material adversity necessary to make out Plaintiff’s prima facie
Other courts have found that a supervisor’s degrading and
unprofessional remarks to others “cannot be retaliatory under Title
VII because statements, on their own, are not likely to ‘deter a
person of ordinary firmness.’”
Middleton v. Deblasis, 844 F. Supp.
2d 556 (E.D. Pa. 2011) (quoting McKee v. Hart, 436 F.3d 165, 170
(3d Cir. 2006) (holding that admonishments, deemed “harassment” by
plaintiff, were not sufficient to constitute retaliation in the
First Amendment context, in which the same standard applies
Similarly, courts have held that a
supervisor can criticize a subordinate and it will not be
actionable absent evidence of retaliatory animus.
See McKinnon v.
The reported Middleton case contains no internal
pagination. Therefore, we are unable to cite the page on which the
quoted material appears.
Gonzales, 642 F. Supp. 2d 410, 432 (D.N.J. 2009) (citing Lillie v.
Chartwells, No. 04-5453, 2007 WL 951900, at *8 (N.D. Ill. Mar. 26,
2007) (listing cases)); see also Ferguson v. Deptford Tp., Civ. No.
06-2112, 2008 WL 5401630, at *5 (D.N.J. Dec. 22, 2008).
stray remarks about Plaintiff to others and her use of vulgar
language may have caused unnecessary tension at SMCE and distressed
Plaintiff, but the record shows Yeager’s conduct is best
characterized as contributing to “the ordinary tribulations of the
workplace” which are to be filtered out in the materiality prong of
the prima facie case, 548 U.S. at 68.
Other employees did not like
the way she treated people, talked about people and used vulgar
(See, e.g., Weicicoskie Dep. 56:4-57:8, 83:15-85:10
(Doc. 27-11 at 15, 16, 23).)
Importantly, this behavior related to
others as well as Plaintiff.
Whether considered an abrasive
person or equal opportunity offender, these negative character
traits do not render Yeager’s conduct materially adverse in the
Title VII retaliation context.23
In keeping with the Supremre Court’s caution that Title VII
is not a general civility code for the workplace, Burlington
Northern, 548 U.S. at 57, commentary expressed in another legal
context aptly sums up the idea that exposure to a certain amount of
undesirable conduct is a normal part of life.
The rough edges of our society are still
in need of a good deal of filing down, and in
the meantime plaintiffs must necessarily be
expected and required to be hardened to a
certain amount of rough language, and to
occasional acts that are definitely
inconsiderate and unkind. There is no
Totality of Adverse Actions
Though Plaintiff does not do so specifically, to the extent
she would argue that all of the cited adverse actions, taken
together, were components of an integrated pattern of retaliation
(or constitute material adversity), her argument would fail.
have reviewed each allegedly adverse action argued to be supportive
of her claim (see Doc. 28 at 45-48), and, given the nature and
timing of each in addition to the period of time over which the
allegedly adverse conduct was spread, Plaintiff has not presented
evidence from which a reasonable factfinder could conclude a
reasonable worker would have been dissuaded from making or
supporting a charge of discrimination.
In reviewing the “overall scenario” as is required, see Moore,
461 F.3d at 346, here that scenario includes Defendant’s
accommodations to Plaintiff, including schedule adjustments,
allowing her to take report by listening to a tape on another
floor, not scheduling Plaintiff to work with Vaillant after he
received his final warning other than on one occasion on which
Plaintiff was was scheduled to work with Vaillant and her
assignment was changed.
occasion for the law to intervene in every
case where some one’s [sic] feelings are
Restatement (Second) of Torts § 46 comment d.
We do not dispute that Plaintiff’s reaction to Vaillant’s
conduct made her very upset and hypervigilant about her safety.
(See Doc. 27 at 137; Lawrence Dep. 175:15-176:13 (Doc. 27-2 at
From Plaintiff’s own report of her mental and emotional
state following Vaillant’s conduct (id.), it follows that her
sensitivity to her coworkers’ and supervisors’ behavior would be
However, our inquiry is not concerned with Plaintiff’s
subjective perspective, but rather with that of the reasonable
Here, the record does not show that others who worked with
Vaillant were concerned for their safety after he received the
The record specifically shows that another nurse
who had been the subject of Vaillant’s harassing conduct did not
want to file an EEOC charge despite Plaintiff’s urging that she do
so and stated she was comfortable with the Hospital’s response to
(Doc. 24 ¶ 129; Doc. 26 ¶ 129.)
Thus, this is
a case where Plaintiff has proffered no evidence, nor does our
review of the record find any, that actions perceived as
retaliatory by Plaintiff would have been characterized as such by a
reasonable employee faced with the same or similar circumstances.
Defendant’s Explanation and Pretext
Although we have concluded that Plaintiff has not made out her
prima facie case of retaliation, we will proceed with a limited
discussion of the second and third prongs of the McDonnell Douglas
Because Burlington Northern specifically noted that a
schedule change could be a materially adverse action in some
circumstances, 548 U.S. at 69, in an abundance of caution, we will
assume arguendo that Plaintiff made out her prima facie case as it
relates to the schedule change basis of her retaliation claim.
the reasons discussed below, we conclude a reasonable jury could
not find that Plaintiff has shown sufficient evidence to refute
Defendant’s articulated non-discriminatory reasons for the
allegedly retaliatory schedule change.
As set out above, at the first stage of the McDonnell Douglas
analysis, the plaintiff makes her prima facie showing, at the
second stage the defendant then has the burden of producing a
legitimate, non-retaliatory reason for its conduct.
Moore, 461 F.3d at 342.
At the third stage, the burden shifts back
to the plaintiff to show that the employer’s proffered reason was
false and retaliation was the real reason for the adverse action.
At the summary judgment stage, “a plaintiff must produce some
evidence from which a jury could reasonably reach these
Id. (citing Fuentes v. Perskie, 32 F.3d 759, 764 (3d
As stated in Fuentes,
to defeat summary judgment when the defendant
answers the plaintiff’s prima facie case with
legitimate, non-discriminatory reasons for
its action, the plaintiff must point to some
evidence, direct or circumstantial, from
which a factfinder could reasonably either
(1) disbelieve the employer’s articulated
legitimate reasons; or (2) believe an
invidious discriminatory reason was more
likely than not a motivating or determinative
cause of the employer’s action.
32 F.3d at 764.
Considering the quantum of evidence required to
defeat summary judgment, Fuentes explained the proper middle
We can reject out of hand the two extreme
positions: that the plaintiff can avoid
summary judgment simply by arguing that the
factfinder need not believe the defendant’s
proffered legitimate explanations on the one
hand, or that the plaintiff must adduce
evidence directly contradicting the
defendant’s proffered legitimate explanations
on the other. The correct solution lies
somewhere in between: to avoid summary
judgement, the plaintiff’s evidence rebutting
the employer’s proffered legitimate reasons
must allow a factfinder reasonably to infer
that each of the employer’s proffered nondiscriminatory reasons was either a post hoc
fabrication or otherwise did not actually
motivate the employment action (that is, the
proffered reasons is a pretext).
Id. (internal citations omitted).
Here Defendant has come forward with a legitimate, nondiscriminatory reason for the schedule change, that is, a
change/upgrade in the Kronos timekeeping system which made it no
longer possible to manually entered her time–-a practice which had
been done previously to accommodate her desired and unique
(Doc. 25 at 51.)
Defendant adds that the changes were
applicable to everyone at the Hospital and, rather than being
singled out, the only reason Plaintiff had to move a few hours is
that she was the only member of the nursing staff with the schedule
which required a manual entry.
Plaintiff provides two bases for finding the proffered reason
pretextual in her opposition brief.
(Doc. 28 at 46.)
states that when she told Human Resources Director Treasure about
the change, he responded that “it sounds like retaliation, at the
same time indicating the new billing system had been in place since
(Doc. 28 at 46.)
As evidence of pretext, Plaintiff
also points to the fact that Curry never went to anyone in Human
Resources to see if there was any other way of scheduling so
Plaintiff could maintain the schedule she had before the change.
Pointing to the “undisputed” facts that the upgrades meant the
manual entry of some of Plaintiff’s time could not continue and the
Kronos system changes applied to all Hospital employees, Defendant
contends that “Plaintiff resorts to playing word games with the
record” having to do with whether Treasure stated there was a new
billing system or a change in the billing system.
(Doc. 31 at 16.)
Having carefully reviewed the relevant portions of the record,
we conclude that Plaintiff asked Treasure about whether a new
billing system would have necessitated changes to her schedule, not
whether changes to the billing system required the adjustment.
(Lawrence Dep. 188:14-23 (Doc. 27-2 at 19).)
If not intentionally
misstated, the distinction between a change in the system or a new
system (which is significant here) is far from clear in Plaintiff’s
references to the issue and, in some instances, her
characterization does not square with her deposition testimony.
For example, in Plaintiff’s Response to Defendant’s Statement of
Material Facts (Doc. 26) Plaintiff denied the averment that
Schetrum informed her on September 18, 2009, that, because of
changes to the Kronos timekeeping system, as of October 4, 2009,
her eight-hour shift could no longer be manually entered “because
Treasure advised Plaintiff that there was no change in the new
billing system which would necessitate a scheduling change for
(Doc. 26 ¶ 98.)
Similarly, in the background section
of her response brief, Plaintiff states she believes the schedule
change was retaliation because “Treasure denied being aware of any
change in the new billing system which would necessitate a schedule
(Doc. 28 at 27.)
In contrast, in the argument section of
her brief, Plaintiff states that Treasure stated “the new billing
system had been in place since June 2009.”
(Doc. 28 at 46.)
last iteration of Treasure’s statement regarding the billing system
accurately reflects Plaintiff’s testimony on the subject at her
(Lawrence Dep. 188:14-23 (Doc. 27-2 at 19).)
Treasure’s reported response is not evidence that Defendant’s
proffered reason--that a change in the timekeeping system was
responsible for the need for the schedule adjustment--is a post hoc
fabrication or did not motivate Defendant’s action.
Plaintiff’s reliance on Curry’s failure to go to HR to see if
her schedule change could continue is also deficient.24
(Doc. 28 at
As discussed previously in Section II(B)(2)(a)(i), the
evidence shows the change to the Kronos system precluded Schetrum
from entering Plaintiff’s schedule as she had done previously;
Schetrum, who did Plaintiff’s schedule, informed Plaintiff of the
need for a change; and Plaintiff points to no evidence which
suggests that she asked either Schetrum or Curry to go to HR to see
if there was any way her accommodation regarding the split four
hours could be continued.
This scant evidence, particularly when
considered in context, cannot meet Plaintiff’s burden of coming
forward with evidence from which a reasonable factfinder could
disbelieve Defendant’s articulated reason for its action or believe
the articulated reason did not motivate its action.
For all of the above reasons, we conclude that Plaintiff has
failed to meet her burden of showing that a reasonable factfinder
could find the reasons proffered by Defendant pretexual.
Therefore, even if Plaintiff were to have made out a prima facie
claim of retaliation based on her schedule change, Defendant would
With this assertion, Plaintiff is essentially arguing it
was retaliatory for Defendant not to figure out a way to allow
Plaintiff to continue to work thirty-six hours one week and fortyfour hours the other week of a two-week pay period when the
timekeeping system change would not allow the previous
accommodation of her unique schedule to continue. As noted in the
textual discussion of Plaintiff’s prima facie case, Defendant
continued all other previously provided schedule accommodations,
including allowing Plaintiff to work twelve-hour shifts instead of
the normal eight-hour shifts and special weekend considerations.
be entitled to summary judgment on her retaliation claims.
Defendant contends that Plaintiff cannot maintain her claims
for constructive discharge.
“Constructive discharge occurs when an ‘employer knowingly
permit[s] conditions of discrimination in employment so intolerable
that a reasonable person subject to them would resign.’”
v. Wal-Mart Stores, Inc., 469 F.3d 311, 317 n.4 (3d Cir. 2006)
(quoting Goss v. Exxon Office Sys. Co., 747 F.2d 885, 887 (3d Cir.
1984)) (alternation in Spencer).
Spencer also explained that
[a] hostile work environment “will not always
support of a finding of constructive
discharge.” Marrero v. Goya of P.R., Inc.,
304 F.3d 7, 28 (1st Cir. 2002). “To prove
constructive discharge, the plaintiff must
demonstrate a greater severity or
pervasiveness of harassment than the minimum
required to prove a hostile working
environment.” Landgraf v. USI Film Prods.,
968 F.2d 427, 430 (5th Cir. 1992), aff’d, 511
Spencer, 469 F.3d at 317 n.4.
Plaintiff rests her constructive discharge claim on the
“entirety of circumstances following Plaintiff’s report of sexual
harassment on August 20, 2009" and specifically points to the
actions relied upon for her retaliation claim, adding a few
comments not cited in connection with that claim.
(See Doc. 28 at
The record shows that Plaintiff was not subject to Vaillant’s
harassment at least from October 2009 through the end of her
employment in January 2011.
We have concluded that Plaintiff’s
claimed retaliatory actions considered cumulatively do not support
her retaliation claim.
The additional comments Plaintiff cites in
support of her constructive discharge claim (Doc. 28 at 51-52),
considered in context (see Doc. 31 at 24-25), do not constitute
evidence upon which a reasonable factfinder could convert her
failed retaliation claim into a successful constructive discharge
Therefore, Plaintiff’s resignation purportedly in response
to the events following her first report of harassment does not
meet the constructive discharge standard, one which is viewed
objectively from the perspective of the reasonable employee.
conclusion is bolstered by the fact that Plaintiff submitted her
letter of resignation on January 14, 2011–-just three days after
she received a work assignment which she claimed to be “inferior,”
an assignment which served as a basis for her retaliation claim in
her second EEOC charge and Amended Complaint.
60; Doc. 16 ¶¶ 62, 66.)
(Doc. 24-3 at 158-
This is particularly significant because
Plaintiff abandoned this basis for her retaliation claim in
response to Defendant’s summary judgment motion.
(See supra n.16.)
Discrimination Based on Sex
Finally, Defendant asserts that Plaintiff’s claims for sex
discrimination must fail because she sets forth no facts to support
(Doc. 25 at 52.)
We conclude Plaintiff has failed
to sufficiently support her sex discrimination claims.
In response to Defendant’s argument that the “boilerplate
allegations” found in her First Amended Complaint do not suffice
(Doc. 25 at 52 (citing Doc. 16 ¶¶ 76, 88)), Plaintiff avers that
her sex discrimination claims are supported by Jensen where the
As an abstract matter, retaliation against a
person based on the person’s complaint about
sexual harassment is not necessarily
discrimination based on the person’s sex.
If the individuals carrying out the
harassment would have carried out a similar
campaign regardless of the person making the
complaint, the harassment, while actionable
as illegal retaliation, would not be
actionable as discrimination based on sex.
In reality, however, when a woman who
complains of sexual harassment is thereafter
subjected to harassment based on that
complaint, a claim that harassment
constituted sex discrimination (because a
man who made such a complaint would not have
been subjected to similar harassment) will
almost always present a question that must
be presented to the trier of fact. In such
a situation, the evidence will almost always
be sufficient to give a reasonable inference
that the harassment would not have occurred
if the person making the complaint were a
man. The difficult task of determining
whether to draw such an inference in a
particular case is best left to trial.
Jensen, 435 F.3d at 454; (Doc. 28 at 50).
On the basis of this
discussion in Jensen, Plaintiff avers that “here, where Lawrence
who complained about sexual harassment is thereafter subjected to
harassment based on her complaint, the issue of whether the
reasonable inference that the harassment would not have occurred if
the person making the complaint were a man must be presented to the
trier of fact.”
(Doc. 48 at 50.)
The crucial distinction between Jensen and the case at bar is
Jensen found that a reasonable jury could find the harassment to
which the plaintiff was subjected after the initial incident to be
435 F.3d at 454.
Here, we have found that Plaintiff
has not produced evidence from which a reasonable jury could
conclude that the actions Plaintiff cites as adverse satisfy the
material adversity standard required to support her retaliation
Based on this conclusion, the proffered basis for
Plaintiff’s sex discrimination claim is without merit and Defendant
is entitled to summary judgment on Plaintiff’s sex discrimination
For the reasons discussed above, we conclude Defendant’s
Motion for Summary Judgement (Doc. 23) is properly granted in part
and denied in part.
The motion is denied as to Counts II and V,
Plaintiff’s claims for Sexual Harassment-Hostile Work Environment
under Title VII and the PHRA.
The motion is granted in all other
respects and judgement in Defendant’s favor is granted on the
following counts: Counts I and IV for Sex Discrimination under
Title VII and the PHRA; and Counts III and VI for Retaliation under
Title VII and the PHRA.
Therefore, only Plaintiff’s claims for
Sexual Harassment-Hostile Work Environment go forward.
appropriate Order is entered simultaneously with this Memorandum.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: August 14, 2012 ___________________
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?