Burton v. Heckmann Water Resources

Filing 67

MEMORANDUM OPINION (Order to follow as separate docket entry) re 46 Dft's Motion for Summary Judgment. Signed by Magistrate Judge Martin C. Carlson on March 27, 2015. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CARY BURTON,
Plaintiff
v.
HECKMANN WATER RESOURCES,
Defendant

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Civil No. 4:13-CV-880
(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

INTRODUCTION
The plaintiff in this action, Cary Burton (“Burton” or the “plaintiff”), is an

African American man. For several months in 2011, he was employed as a driver by
the defendant, Heckmann Water Resources (“Heckmann” or the “defendant”), a
company in the business of delivering water for use in hydraulic fracturing by
companies extracting natural gas in the Marcellus Shale found in Pennsylvania’s
Northern Tier counties. Burton drove a truck for Heckmann, delivering water to job
sites, and performing related tasks. Burton’s time at Heckmann was short, spanning
approximately four months. During his tenure, Burton claims that his employment
was a distinctly hostile work experience, polluted by a campaign of racially bigoted
and threatening comments by his co-workers directed specifically at him, and further

aggravated by a lack of support from Burton’s direct supervisors, some of whom are
also claimed to have been overheard making their own racially insensitive or insulting
remarks and responding ineffectively to Burton’s complaints for months. After
Burton felt physically threatened by a co-worker, and was himself disciplined for a
minor accident in a manner he found to be unfair, he left his employment with
Heckmann, having found that his work environment was overtly hostile, and having
found that management responded ineffectively to his complaints. This lawsuit
followed, with Burton claiming that Heckmann discriminated against him on the basis
of race, in violation of state and federal law.1
The defendant has a very different take on Burton’s claims, and particularly on
the adequacy of the company’s response to Burton’s complaints of discrimination by
co-workers. Heckmann claims that Burton contributed to the problems he faced at
work by failing to assist in the investigation into his allegations of abuse by coworkers by refusing to identify them, and that when the company was later armed
with sufficient information about the conduct, it took what it insists was prompt,
decisive and appropriate action, including by firing certain employees and providing

Burton brings claims under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”), 42 U.S.C. § 1981, and the
Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. §§ 951 et seq.
(“PHRA”).
1

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targeted training by human resources staff. The defendant also suggests that Burton’s
work environment was not as corrosive as he alleges, and in any event the company
maintains that it acted in an appropriate manner when made aware of all of the
circumstances surrounding Burton’s claims. The defendant further argues that even
if the plaintiff encountered regular and routine use of racial epithets in the workplace,
the conduct should be declared as a matter of law not to be sufficiently serious as to
amount to a hostile work environment that is actionable under state and federal civil
rights laws.
The defendant has moved for summary judgment on Burton’s claims. Burton
has responded to the motion, arguing that the defendant misconstrues the record and
that Heckmann improperly urges the Court to view this matter in the light most
favorable to Heckmann – something inappropriate at the summary judgment stage.
The defendant’s motion is fully briefed and is ripe for disposition.
Upon consideration of the entire record, viewing that record in the light most
favorable to Burton as we must, and resolving all ambiguities and inferences in
Burton’s favor, we find that Burton has provided adequate evidentiary support for his
hostile work environment claims, and that there remain disputed issues of fact that
cannot be resolved through summary judgment motions practice, but require that the

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claims be put before a jury at trial. Accordingly, the defendant’s motion for summary
judgment will be denied.
II.

BACKGROUND2
Heckmann Water Resources is a subsidiary of Heckmann Corporation, a

Delaware corporation that, along with its various subsidiaries, is an environmental
solutions company providing full-cycle environmental solutions to its customers in
the energy and industrial end-markets. Heckmann provides fresh water for fracking
activities in the Marcellus Shale region, and uses trucks and employs company drivers
to transport the water to natural gas sites.
Burton is an African American man, and was hired by Heckmann as a water
truck driver in mid-April 2011. He was initially assigned to the night shift, and was
compensated at $16 per hour. During each shift, Burton and Heckmann’s other

The factual background to this memorandum is taken from the parties’
competing statements of material fact where there is no dispute in the record.
Where the record contains disputed issues of fact, they have been interpreted in
Burton’s favor for purposes of this opinion only, with the supporting evidence
identified by citation. Additionally, in keeping with the standards governing
motions for summary judgment in federal court, all reasonable inferences that may
be drawn from the factual record have been viewed in the light most favorable to
Burton as the non-movant. At trial, of course, Burton will retain the burden of
proving his claims by a preponderance of the evidence, and nothing in this
memorandum should be interpreted as conclusively resolving any of the factual
disputes that presently exist. Conclusively resolving those disputes is a task
committed to the factfinder at trial.
2

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drivers would make several runs to and from client sites to deliver fresh water and
take away used water.
Heckmann maintained terminals in Hughesville, Pennsylvania, and in Wysox,
Pennsylvania. Heckmann also maintained a management office in Williamsport. Ron
Eichenlaub, Desmond Warzel, Kevin Little, and Brandon Johnson were among the
supervisors at the Hughesville terminal. Bernie Hoover was the site manager at the
Hughesville terminal, and Cliff Davis was the operations manager. The supervisors
ran nightly meetings with the drivers prior to the start of their shifts.
Shortly after Burton was hired, Karen Martin was hired as Heckmann’s
Regional Human Resources Manager, stationed in Coraopolis, Pennsylvania. She
was hired on May 2, 2011, and remained with the company through the fall of 2013.
Deborah Carter-Gordley was Heckmann’s Director of Human Resources from
January 2011 until June 2012, when her employment ended. While she was with the
company, Carter-Gordley was Martin’s direct supervisor. (Doc. 48, Dep. of Deborah
Carter-Gordley at 11, 12, 20.) At the time Burton was hired, Heckmann had a twopage non-discrimination and reporting policy. (Doc. 56, Ex. 3.) The policy provides,
in relevant part, that “Employees with questions or concerns about discrimination in
the workplace are encouraged to bring these issues to the attention of their supervisor.
Employees can raise concerns and make reports without fear of reprisal.” (Id. at 1.)
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Within a week after he was hired, the plaintiff found himself exposed to
offensive racial slurs uttered within his presence by a white co-worker, David
Weidler, who said that “this place is run by niggers.” (Doc. 55, Ex. 4, Pl. Verified
PHRC Charge; Ex. 5, Pl. Letter to Cliff Davis.) Burton claims that he asked Weidler
to refrain from using the word “nigger” in front of him, but alleges that Weidler
continued to use offensive and racially derogatory language at work, using terms such
as “niggahjew” and making comments like “nigger, please” within Burton’s hearing.
According to Burton, Weidler used the word “nigger” in front of 15 people, including
supervisors, during a pre-shift meeting. (Doc. 52, Burton Dep. at 51-56.)
Burton complained to his supervisors about these statements, including
particularly to Rob Eichenlaub and Desmond Warzel. Nevertheless, Burton testified
during his deposition that Weidler persisted in using the word “nigger” in front of
him and other co-workers, and in the presence of supervisors Eichenlaub, Johnson
and Little. (Id. at 54-55.) According to Burton, Weidler would also hold out his hand
in a Nazi salute and bark out “Heil, Hitler” during pre-shift meetings, in the plaintiff’s
presence, and in the presence of Eichenlaub, Johnson and Little. (Id. at 53-55.)
During his deposition, Ron Eichenlaub acknowledged that he did not do anything
upon hearing the racist remarks. (Eichenlaub Dep. at 68-69.)

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Burton complained about not only Weidler’s comments, but also those claimed
to have been made by another co-worker, Ralph “Zip” Geswhite, who is claimed to
have also frequently used the term “nigger” at work sites. Eichenlaub acknowledged
that he had overheard Geswhite use the term “quite a bit” and that he reported it to
Hoover, the site manager, on multiple occasions. (Eichenlaub Dep. at 58-59.) Burton
claims that Geswhite also once said that “old black dogs should be hung with new
white rope,” and made this statement while standing a few feet away from the
plaintiff, who was the only African American present. (Doc. 52, Burton Dep. at 5556; Doc. 56, Ex. 1, Eichenlaub Dep. at 46; Pl. SMF Ex. 19 (PHRC letter).) Burton
reported this remark to Eichenlaub, who in turn alerted Hoover, who replied that he
already knew about it and would take care of it. (Doc. 56, Ex. 1, Eichenlaub Dep. at
47-48.)
Heckmann claims that it acted upon learning of Burton’s complaints in May
2011. Thus, Heckmann represents that in May 2011, during a pre-shift meeting
Heckmann supervisors made some comments regarding harassment, but it appears
that the discussion on the subject was limited, and may not have even touched on
racial harassment at all, but may have been focused on sexual harassment in the
workplace. (Doc. 59, Pl. Response to Def. Statement of Facts (“Pl. SMF”) ¶ 21 and
Ex. 29.)
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Whatever may have been discussed at one pre-shift meeting in May 2011,
according to Burton it did nothing to ameliorate or put a stop to the racially offensive
commentary being routinely used by Burton’s co-workers. Thus, Burton maintains
that David Weidler used the word “nigger” every day in the plaintiff’s presence,
through May and June 2011. In July 2011, Weidler was overheard describing a
location as “the town of Niggerama.”
By the end of July, the plaintiff again complained to his supervisors, this time
writing a letter to Cliff Davis, the operations manager. Shortly thereafter, the plaintiff
was moved to the first shift, although the record contains conflicting evidence as to
whether this move was intended to accommodate the plaintiff’s concerns about racist
comments being made in his presence, or if it was entirely unrelated to this issue.
(Def. SMF ¶ 30, Ex. C, Deposition of Cary Burton Ex. at 63 and Ex. G, Dep. of
Kevin Little at 58; Pl. SMF ¶ 30, Ex. 28, Dep. of Bernie Hoover at 61-62.)
In addition to reporting his concerns to Eichenlaub and Warzel, Burton
informed Hoover, the site manager, about the racially offensive remarks being
directed at him, or uttered routinely in his presence. It thus appears that Hoover was
made aware of the harassment by late May or early June 2011. Hoover testified that
he first learned of the racial remarks after being informed by another supervisor, and
that he afterward spoke with Burton about it directly. After this point, Hoover claims
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that Burton began coming to him “more frequently” about the matter, but because
Burton did not identify who was making the comments, Hoover told him that “he
couldn’t solve the problem.” (Hoover Dep. at 47-48.) The plaintiff contends that the
racially offensive comments continued at the workplace between May and August
2011. (Doc. 55, Ex. 4 ¶ 18.)
On or about June 27, 2011, Karen Martin, the human resources manager,
became aware that this matter persisted in the workplace. (Doc. 55, Ex. 7.) It took
two weeks until Martin spoke with Burton, and on July 11, 2011, he told her
personally about the harassment he had been facing in the workplace. Martin assured
Burton that the matter would be addressed, and that Heckmann’s anti-harassment
policies would be addressed with the staff during pre-shift meetings. (Doc. 56, Ex.
6.) That day, Martin spoke to Hoover, Eichenlaub and Warzel and was informed that
they had been aware of the complained-of conduct for between one and one and a half
months. (Id.) The next day, Martin emailed Hoover, and Hoover’s supervisors,
Danny McCall and Cliff Davis. (Doc. 56, Ex. 7.) In this email, Martin indicates that
“this is the second time this topic has come up so please ask questions for
understanding and we need to hold employees accountable.” (Id.) Martin told these
supervisors that they were to inform employees “on the spot that this is not language
that will be tolerated.” (Id.) Martin included with her email a script for the
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supervisors to use that included “core values” to be read at pre-shift meetings. (Id.)
The script was thereafter read during these meetings, along with the “core values”
sheet, between July 13 and July 15, 2011. (Doc. 56, Ex. 9.)
The script intended to be used to inform employees of Heckmann’s antiharassment policies contained a single reference to racial discrimination, and the
“core values” sheet does not contain any reference at all to racial harassment, or what
to do if it occurs. Instead, it directs employees to “treat each other with respect.”
(Id.) Despite the script and “core values” being shared with staff, on July 17, 2011,
on July 17, 2011, a co-worker called the plaintiff “Buckwheat.” (Doc. 56, Exs. 4
(PHRC verified complaint) and 5.)
Problems persisted, and in short order. Thus, on July 26, 2011, a hangman’s
noose was erected at a job site. Kevin Little discovered it and cut it down in order to
show Hoover. (Doc. 56, Ex. 10, Little Note.) When the noose was found, there was
one African American employee working at the job site. (Little Dep. at 40.) Hoover
placed the noose in drawer in an office trailer, and the plaintiff encountered it several
times when he retrieved safety equipment from the cabinet. (Doc 52, Burton Dep. at
59-62.) Three days later, on July 29, 2011, a different co-worker called Burton
“Buckwheat.” (Doc. 56, Ex. 5, Burton Letter to Cliff Davis.)

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At this point, Burton called off for his next shift and informed Hoover that he
would remain out of work “until the discrimination issue . . . was taken care of.”
(Doc. 56, Ex. 12, Hoover Note.) On August 1, 2011, Burton again complained to
Karen Martin, reporting that he was being subjected to the word “nigger” at work,
and again noting that Weidler had been using the word. (Doc. 56, Ex. 6, Martin
Statement; Doc. 47, Martin Dep. at 66-67.) Martin spoke to Hoover about the matter,
but he told her that it had occurred months earlier. (Doc. 56, Ex. 6.) Martin also
directed Burton to reduce his complaints to writing and provide them to Cliff Davis,
which he did. (Doc. 52, Burton Dep. at 50-51; Doc. 56, Ex. 5, Burton Letter to
Davis.) In his letter, Burton wrote “it is my utmost wish and believe to express and
convey to Heckmann Water Resources the very nature of how my basic civil rights
were violated.” (Id.)
At this point, several months after Burton found himself regularly exposed to
racist language and imagery, Heckmann’s director of human resources, Deborah
Carter-Gordley determined that it was time to get an outside firm to come in and
investigate what was happening at the Hughesville location. (Doc. 48, CarterGordley Dep. at 43-44.) Then, on August 9 and 10, 2011, an investigator went to the
Hughesville site and conducted a series of interviews with staff and supervisors there,
though he did not interview Karen Martin to learn what she knew about the situation.
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On August 15, 2011, the investigator submitted a report to Carter-Gordley. (Doc. 56,
Ex. 13.)
Upon receipt and review of the report, Heckmann began to act. Based upon the
report, David Weidler was fired for making “inappropriate comments.” (Doc. 56, Ex.
14.) The plaintiff was reassigned from the night shift to the day shift, although
Hoover later testified that the move was unrelated to his complaints about harassment.
(Doc. __, Hoover Dep. at 61-62.)
According to Burton, by going to Heckmann to report the racist comments that
had been directed towards him, he faced new forms of harassment by his colleagues.
Thus, on August 16, during a meeting with supervisors and staff in which the
company’s policies were being discussed and employees were directed to use a
company “hotline” to report complaints, another white employee, Carl Orso, while
looking at the plaintiff referred to it as the “snitch line” and called the plaintiff a
“pussy”. Kevin Little observed the conduct, which happened twice, and he wrote it
up. (Doc. 56, Ex. 15; Doc. 49, Little Dep. at 44-45; Doc. 52, Burton Dep. at 38-39.)
Later the same day, Orso called the plaintiff “boy”. As he had been directed to do,
Burton wrote this incident up in a writing, describing it as follows:
After making comments I’m not getting in the same van with no pussy
and then looking at me then this morning saying direct access line is for
bitch motherfuckers then looking at me, while at Mt. Energy Carl kept
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looking at me evil, after several times looking at this me way I ask him
did he have a problem with me. He said boy you don’t want to fuck
with me. He was very angry as if he wanted to hurt me. So I said come
out of the truck. That was all that happen. PS - I am now being called
every name in the book. First nigger then buckwheat now boy.
(Doc. 56, Ex. 16.)
The incident, which occurred at a job site, was observed by a Heckmann client,
who reported it to Davis, and Hoover called the plaintiff back to the yard. (Doc. 56,
Ex. 17.) During his return to the yard, the plaintiff called Hoover and asked him why
he was being brought back, rather than Orso, since “he’s the one that called me a
boy?” (Doc. 52, Burton Dep. at 45.) To Burton’s surprise, it was he who faced
criticism when he arrived back at the yard where he met with Karen Martin, who was
on site to handle David Weidler’s firing. (Doc. 47, Martin Dep. at 112.) According
to Burton, Martin blamed him for the incident, and said he was being written up
because he should have handled the situation more effectively. Burton responded by
noting that the exchange happened in front of supervisors, and Burton said he thought
the supervisors should have handled the matter themselves. Martin said that Burton
should have handled the matter in the morning, and not had any discussion with Orso
at the work site. (Doc. 52, Burton Dep. at 45-46, 64, 66.) Burton was given a written
warning following this exchange. Notably, Orso also received the same written
discipline.
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The harassment persisted. Thus, less than one week later, the plaintiff was
approaching some of his co-workers while waiting to fill his truck and overheard one
of the men say “I wish that nigger would ask me if I had a problem with him. I’ll
show that fucking nigger.” This statement was punctuated by the speaker banging a
hammer against his truck as he said it, and the plaintiff believed the statement was
made in reference to him because he had previously asked Orso if he had a problem
with him. (Doc. 52, Burton Dep. at 27-31.) According to the plaintiff, he was shaken
by what he heard and saw, and when he later returned to his truck his distress or
anxiety caused him to back his truck into another, causing an accident. (Id. at 32-33.)
When the plaintiff returned to the work yard, he reported the incident and the
accident. (Id. at 35-36.) The same day, Hoover gave the plaintiff a warning for the
minor accident and required him to undergo a drug test. (Doc. 56, Ex. 20.)
Also on August 22, 2011, Karen Martin was in Hughesville to conduct antidiscrimination training in person, though Burton had to miss it because Hoover had
required him to go for a drug test following the minor traffic accident.
On August 23, 2011, the plaintiff told Hoover he was resigning from his job
with Heckmann because of the racial discrimination he had been facing at work for
the past several months. (Doc. 56, Ex. 21.) In his letter of resignation, Burton wrote,
“Due to race discrimination, harassment, retaliation and a hostile work environment,
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I quit Heckmann Water Resources company effective immediately.” (Doc. 56, Ex.
22.) Several days later, Burton reconsidered and wrote to Martin asking for his job
back. Martin told him she would confer with management, but a few days later the
two spoke again and Burton told her he did not want to return.
A few weeks later, Hoover was fired, though he claims he was never provided
any explanation. (Doc. 58-8, Hoover Dep. at 35-38.) Desmond Warzell was also
fired by Dany McCall, who claims that he was not given any reason for the move, but
was instead simply told by Martin to terminate Warzel’s employment. (Doc. 56, Ex.
2, McCall Dep. at 34-35.) According to Carter-Gordley, the director of human
resources, she concluded that Hoover and Warzel both knew about Burton’s
complaints of racial harassment but failed to timely bring those complaints to Martin,
or otherwise to “process this correctly.” (Doc. 48, Carter-Gordley Dep. at 37-38.)
Carter-Gordley represented that initially, Hoover and Warzel had said they did not
know what was happening with the plaintiff at work, but later they admitted that they
did know, and “much earlier than when Karen [Martin] was called.” (Id. at 35-36.)
The plaintiff has claimed that the harassment he experienced, and the stress that
accompanied it, caused him to feel menaced and intimidated at work. He was
subsequently treated for depression and anxiety, and prescribed medication by his
doctor. (Doc. 56, Ex. 19, 25.)
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After the plaintiff pursued administrative relief before the Pennsylvania Human
Relations Commission, he brought this litigation by filing a complaint on April 13,
2013, which he later amended on August 16, 2013. (Docs. 1, 15.) On July 17, 2014,
the parties consented to proceed before the undersigned, and on July 21, 2014, the
action was transferred to this Court for all further proceedings through and including
trial. (Docs. 42, 43.) On July 28, 2014, the defendant filed the instant motion for
summary judgment, which was fully briefed on November 21, 2014.
III.

SUMMARY JUDGMENT
Heckmann has moved for summary judgment pursuant to Rule 56 of the

Federal Rules of Civil Procedure, which provides that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Through summary adjudication a court is empowered to dispose of
those claims that do not present a “genuine issue as to any material fact,” Fed. R. Civ.
P. 56, and for which a trial would be “an empty and unnecessary formality.” Univac
Dental Co. v. Dentsply Int’l, Inc., No. 07-0493, 2010 U.S. Dist. LEXIS 31615, at *4
(M.D. Pa. Mar. 31, 2010).
The substantive law identifies which facts are material, and “[o]nly disputes
over facts that might affect the outcome of the suit under the governing law will
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properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is
a sufficient evidentiary basis that would allow a reasonable fact finder to return a
verdict for the non-moving party. Id. at 248-49.
The moving party has the initial burden of identifying evidence that it believes
shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec.
& Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown
that there is an absence of evidence to support the nonmoving party’s claims, “the
non-moving party must rebut the motion with facts in the record and cannot rest
solely on assertions made in the pleadings, legal memoranda, or oral argument.”
Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party “fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden at trial,” summary judgment
is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if
the non-moving party provides merely colorable, conclusory, or speculative evidence.
Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence
supporting the nonmoving party and more than some metaphysical doubt as to the
material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
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475 U.S. 574, 586 (1986). In making this determination, the court must “consider all
evidence in the light most favorable to the party opposing the motion.” A.W. v.
Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing
to disputed material issues of fact must show by competent evidence that such factual
disputes exist. Further, “only evidence which is admissible at trial may be considered
in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers
Ins. Co., 928 F.Supp. 474, 482 (D.N.J.1995). Similarly, it is well-settled that: “[o]ne
cannot create an issue of fact merely by . . . denying averments . . . without producing
any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 F. App’x
896, 899 (3d Cir. 2007)(citation omitted). Thus, “[w]hen a motion for summary
judgment is made and supported . . ., an adverse party may not rest upon mere
allegations or denial.” Fireman’s Ins. Co. of Newark NJ v. DuFresne, 676 F.2d 965,
968 (3d Cir. 1982), see Sunshine Books, Ltd. v. Temple Univ., 697 F.2d 90, 96 (3d
Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue of fact, and an
unsubstantiated doubt as to the veracity of the opposing affidavit is also not
sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore,
“a party resisting a [Rule 56] motion cannot expect to rely merely upon bare
assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341
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(3d Cir. 1985)(citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)). In
particular, a plaintiff cannot avoid summary judgment by simply relying upon a selfdeclaration that he has authored which relies not on evidence, but on the plaintiff’s
own interpretation of events and, essentially, opinion testimony. See Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 888 (1990) (the nonmoving party may not defeat a
properly supported summary judgment motion by simply substituting the “conclusory
allegations of the complaint or answer with the conclusory allegations of an
affidavit.”); Iseley v. Beard, No. 02-2006, 2009 U.S. Dist. LEXIS 52014, *32 (M.D.
Pa. Mar. 30, 2010) (conclusory allegations contradicted by documentary evidence
cannot be accepted as true).
IV.

DISCUSSION
The plaintiff has brought claims for racial discrimination in the workplace,

under a hostile work environment theory, pursuant to Title VII, 42 U.S.C. § 1981, and
the PHRA. The standards governing these claims are substantially similar, and will
be analyzed collectively.3
In order to establish the existence of a hostile work environment actionable as
a civil rights matter, a plaintiff must prove (1) that he suffered intentional

See Daniels v. Sch. Dist. of Phila., 982 F. Supp. 462, 478 (E.D. Pa. 2013)
(legal analysis under all three statutes is the same).
3

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discrimination because of his race; (2) that the discrimination was severe or
pervasive; (3) that the discrimination detrimentally affective him subjectively; (4) that
the discrimination would detrimentally affect a reasonable person of the same
protected class in the same position; and (5) the existence of respondeat superior
liability. Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006).
Isolated comments and insensitive remarks or unpleasant utterances may not
sufficiently affect the conditions of employment in a manner severe enough to
implicate Title VII, as Title VII is not a “generalized ‘civility code.’” Jensen, 435
F.3d at 452 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81
(1998)). Rather, the statute “prohibits severe or pervasive harassment; it does not
mandate a happy workplace. Occasional insults, teasing, or episodic instances of
ridicule are not enough [because] they do not ‘permeate’ the workplace and change
the very nature of the plaintiff’s employment.” Jensen, 435 F.3d at 451. Factors to
be considered include the frequency of the discriminatory conduct, its severity,
whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance. Id. (citing
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). No single factor is dispositive,
and the analysis focuses on the totality of the circumstances. Id. (citing Andrews v.
City of Phila., 895 F.2d 1469, 1482 (3d Cir. 1990).
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In this case we find that the evidence in the record, taken in the light most
favorable to the plaintiff, is sufficient to show that the plaintiff was subjected to
intentional discrimination on the basis of race over a period of time in which he
regularly was faced by racist utterances and threats directed at him, or in his presence,
in the work place and over his repeated protests. The record contains evidence
showing numerous instances over a short period of time where the plaintiff claims he
was called a “nigger” or “buckwheat” or “boy”, and it is well established that these
phrases are notorious racial epithets, and the plaintiff has cited to numerous cases so
holding. See Bailey v. Binyon, 583 F. Supp. 923, 927 (N.D. Ill. 1985) (“The use of
the world ‘nigger’ automatically separates the person addressed from every non-black
person; this is discrimination per se.”); Ross v. Douglas County, 234 F.3d 391, 396
(8th Cir. 2000) (the only reason [plaintiff] was called a ‘nigger’ was because he was
black”); Daniels v. Essex Group, Inc., 937 F.2d 1264, 1266 (7th Cir. 1991) (observing
that “Buckwheat” is a racial taunt); Ash v. Tyson Foods, Inc., 546 U.S. 454, 456
(2006) (use of term “boy” when addressing African-American employees may
demonstrate racial animus, depending on the way in which the term is delivered).
In addition to these racially derogatory remarks, the plaintiff also observed a
noose that had been cut down from a job site and stored in a file cabinet where the
plaintiff encountered it on multiple occasions. As with the racial epithets, a
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hangman’s noose “may constitute part of a hostile work environment claim” and is
evidence relevant to establish the plaintiff’s first prong of his claims in this case. Cf.
Tademy v. Union Pacific Corp., 614 F.3d 1132, 1141 (10th Cir. 2008) (collecting
cases).
While the defendant seeks summary judgment on this claim and cites to cases
standing for the proposition that workplace conduct must be sufficiently severe in
order to rise to the level of a “hostile work environment” under Title VII, at this point
in the proceedings we find that the plaintiff has adequately made out this first prong
of his case by pointing to numerous occasions where he faced overtly racist remarks,
and later threats when he complained about this conduct.

Therefore, upon

consideration, we find that summary judgment is not warranted on the record alone
since it contains evidence that, if believed, could support a finding that he faced
frequent racist comments by co-workers, directed at him as an African American, that
could have affected his employment conditions.
The second prong of a hostile work environment claim, whether the harassment
or discrimination was sufficiently severe or pervasive to create a hostile work
environment is, as one district court noted, “quintessentially a question of fact.”
Rorrer v. Cleveland Steel Container, 712 F. Supp. 2d 422, 429 (E.D. Pa. 2010). The
Supreme Court has instructed that in order to assess whether comments in the
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workplace are sufficiently severe or pervasive for Title VII purposes, a court should
evaluate “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating or a mere offensive utterance; and whether it
unreasonably interferes with the employee’s work performance.” Faragher v. City of
Boca Raton, 524 U.S. 775, 787-88 (1998).
Although the defendant downplays the evidence in the record, and even goes
so far as to say that “the overwhelming factual record produced through discovery is
devoid of any evidence that plaintiff was subject to any adverse employment action
by Heckmann based on his race,” (Doc. 51, at 8.), we disagree with its interpretation
of the evidence and whether it is sufficient to warrant summary judgment. The
plaintiff has cited to numerous instances in the record to show that over a period of
a few months, he was routinely subjected to virulent racist insults by co-workers;
when he reported the comments they were initially ignored or not addressed
adequately; and when Heckmann began to take the matter more seriously, the
plaintiff’s co-workers became threatening and the racial remarks continued unabated.
The defendant urges this Court to interpret the racist remarks that the plaintiff claims
to have encountered routinely throughout his short time with Heckmann as mere
“stray remarks of racial animus,” (Doc. 51, at 11.), but it would be improper for the
Court to do so on the record presented, which could be interpreted as considerably
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more than mere isolated offensive commentary.4 Instead, we find that whether the
plaintiff faced a work environment in which racially derogatory remarks were severe
and pervasive, or instead isolated and insufficiently harmful, is a question that should
be presented to a factfinder at trial where an informed judgment can be made.
Likewise, a factfinder is in the best position to judge whether the plaintiff
encountering, on multiple occasions, a hangman’s noose that was stored in a file at
work aggravated what he already found to be a hostile work environment, or was
merely an unpleasant – but not actionable – aspect of his job. The defendant will
have an opportunity to argue its interpretation of these facts at trial, as will the
plaintiff, but they cannot be disposed of through motions practice alone based on the
record presented, since the evidence of racially offensive language and imagery that
the plaintiff has cited to could be directly relevant to and supportive of his hostile
work environment claims that are already supported by exposure to pervasive racist
remarks. See Francis v. Atlas Mach. & Welding, Inc., Civ. A. No. 11-6487, 2013
Moreover, “[w]hile simple teasing, off-hand comments, and isolated
incidents usually do not amount to discriminatory changes in the terms and
conditions of employment, the use of racial epithets – especially the word ‘nigger,’
which has a long and sordid history in this country – can quickly change the
atmosphere, environment, and culture of a workplace from positive to poisonous.”
EEOC v. Bimbo Bakeries USA, Inc., Civ. No. 1:09-CV-1872, 2010 U.S. Dist.
LEXIS 13654, 2010 WL 598641, *5 (M.D. Pa. 2010); see also Rodgers v. W.S.
Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (finding that the use of the word
“nigger” on just two occasions contributed to a hostile work environment).
4

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U.S. Dist. LEXIS 20691, 2013 WL 592297, *5 (E.D. Pa. 2013) (“Repeated use of the
racial epithet ‘nigger’ may support a finding of severe or pervasive harassment. That
two nooses were allegedly hung from [co-workers’] workstation only strengthens [the
plaintiff’s] claim.”); see also EEOC v. Bimbo Bakeries USA, Inc., Civ. No. 1:09-CV1872, 2010 U.S. Dist. LEXIS 13654, 2010 WL 598641, *5 (M.D. Pa. 2010) (“[T]he
use of racial epithets – especially the word ‘nigger,’ which has a long and sordid
history in this country can quickly change the atmosphere, environment, and culture
of a workplace from positive to poisonous.”). Moreover, we are enjoined that a
hostile work environment claim cannot be properly analyzed on an incident-byincident basis, but instead we are to examine the totality of the circumstances
presented. Viewing the record in this fashion, and considering the offensive conduct
that is claimed to have occurred multiple times, over months, and spanning the
entirety of the plaintiff’s brief employment with Heckmann confirms that summary
judgment is unwarranted in this case.
The next element of this claim, whether the racist workplace comments had a
subjective effect on the plaintiff, is fully satisfied here for purposes of summary
judgment.

The plaintiff has attested that he found the comments and work

environment to be overtly hostile, threatening and even menacing at times, and he
claims that it impaired his ability to perform his job functions, and eventually
25

impelled him to resign from work and seek medical care for depression and anxiety.
There is evidence to support this aspect of the plaintiff’s claim, and the defendants
do not really argue otherwise.
We reach the same conclusion with respect to the fourth prong of the analysis
regarding whether the conduct would have similarly affected other African Americans
under similar circumstances. This object assessment is intended to protect employers
from claims made by “hypersensitive” employees, Andrews v. City of Philadelphia,
895 F.2d 1469, 1483 (3d Cir. 1990), and is designed to assess whether the work
environment was actually hostile and, therefore, actionable. The third and fourth
prongs are both critical to a hostile work environment claim, id., with the subjective
factor requiring that the employee actually perceive the environment as hostile, and
the fourth factor requiring that “the finder of fact must actually determine whether the
work environment is [racially] hostile.” Id. The record contains sufficient facts to
allow both the plaintiff and the defendant to present competing interpretations, and
assessments, regarding the nature of the Heckmann work environment, and the
existence of these disputed facts and their potential interpretation warrants against
entering summary judgment.
Although the defendant disputes whether the plaintiff has sufficiently
demonstrated the first four factors of his claims, it is the fifth factor that it argues
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most emphatically in support of its motion. Under the fifth factor, a plaintiff must
establish respondeat superior liability on the part of the employer for other
employee’s actions by showing that the employer was aware of the problem and yet
failed to take prompt and appropriate corrective action in response. Bouton v. BMW
of N. America, Inc., 29 F.3d 103, 110 (3d Cir. 1994). The Third Circuit has explained
that an employer’s awareness of Title VII harassment may be established in two
ways:
[F]irst, where the employee is sufficiently senior in the employer’s
governing hierarchy, or otherwise in a position of administrative
responsibility over employees under him, such as a departmental or
plant manager, so that such knowledge is important to the employee’s
general managerial duties. In this case, the employee usually has the
authority to act on behalf of the employer to stop the harassment, for
example, by disciplining employees or by changing their employment
status or work assignments. The employee’s knowledge of [Title VII]
harassment is then imputed to the employer because it is significant to
the employee’s general mandate to manage employer resources,
including human resources.
Second, an employee’s knowledge of [Title VII] harassment will be
imputed to the employer where the employee is specifically employed
to deal with [Title VII] harassment. Typically such an employee will be
part of the employer’s human resources, personnel, or employee
relations group or department. Often an employer will designate a
human resources manager as a point person for receiving complaints of
harassment. In this circumstance, employee knowledge is imputed to
the employer based on the specific mandate from the employer to
respond to and report on [Title VII] harassment.

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Huston v. P&G Paper Prods. Corp., 568 F.3d 100, 107-08 (3d Cir. 2010). Where a
plaintiff has shown that the employer was aware of a hostile work environment, the
employer will be liable if it failed to take “prompt remedial action.” Bouton, 29 F.3d
at 110. Thus, as the plaintiff notes, this standard tracks well established negligence
rules familiar to tort law. See Vance v. Ball State Univ., 133 S. Ct. 2434 (2013)
(noting that victims of harassment may prevail by showing that an employer was
“negligent in permitting [the] harassment to occur, and that “a[n] employer will
always be liable when its negligence leads to the creation or continuation of a hostile
work environment.”).
The defendant insists that what it terms “appropriate management” took
effective action when they became aware of the plaintiff’s complaints, and were
equipped with sufficient information to address the issue – something that the
defendant argues the plaintiff delayed by failing to provide the names of the coworkers making the offensive comments. (Doc. 51, at 14.) The plaintiff, however,
takes a more expansive view of Heckmann’s managerial structure, and notes that
Eichenlaub, Warzel and Little were all supervisory employees with the authority to
discipline employees under the defendant’s progressive discipline policy. The
plaintiff further notes instances where these employees acknowledged their authority
in this regard, and thus argues that because of this authority, their knowledge should
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be imputed to Heckmann under the first category of management identified in
Huston. (Doc. 55, at 23-24.) The plaintiff further argues that Karen Martin, the
human resources employee assigned to supervise the Hughesville site, fits within
Huston’s second category of human resources personnel who are empowered to
respond to reports of harassment, and he argues that Martin’s delayed and ineffective
response to his complaints should also be imputed to Heckmann.
The plaintiff contends that the evidence shows that as early as May 2011,
Hoover, the site manager at the Hughesville location, as well as other supervisors at
that location, were aware that the plaintiff was being subjected to racist remarks in
the work place, and yet did little or nothing to address or correct the matter. In
addition, the plaintiff further points to evidence showing that Karen Martin had been
notified about this problem in late June 2011, but did nothing to respond until midJuly, after the plaintiff notified her for a second time personally. At this point, the
plaintiff notes that Martin had supervisors read a two-page script to staff during preshift meetings that addressed the issue of racial harassment in a very cursory and
limited manner, but otherwise did not adequately monitor the situation.
The plaintiff argues that even though what he perceived as a campaign of
harassment and threats against him continued throughout the summer, it was not until
mid-August when an outside investigator’s report was finally commissioned and
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furnished to the company that Heckmann took decisive action and dismissed David
Weidler. Yet, even after firing Weidler, the plaintiff has pointed to evidence showing
that problems at work, including racist language and threats from co-workers,
continued, and that supervisors knew about it. The plaintiff notes that after Carl Orso
threatened him, apparently in retaliation for the plaintiff’s reporting about the earlier
conduct that resulted in Weidler’s termination, little was done while he himself was
disciplined for infractions that he claims were minor and related to his own feelings
that he was being threatened. Finally, the plaintiff has cited to record evidence to
show that Heckmann failed to provide adequate training to its supervisors and even
to its human resources personnel, thereby further contributing to the company’s
ineffective and dilatory response to his repeated complaints.5
The Court acknowledges the defendant’s argument regarding what it maintains
was a swift and effective response to the plaintiff’s complaints, as well as the
plaintiff’s contention that supervisors failed to act promptly or effectively, and that
human resources personnel were ill-trained and slow to act. These arguments,
however, do not eliminate a disputed issue of fact. Rather, they define the factual
Karen Martin, for example, testified that she did not receive any training
or instruction during her employment with Heckmann. (Martin Dep. at 52.)
Heckmann’s director of human resources, Deborah Carter-Gordley, stated that she
was “too busy” for training or continuing education. (Carter-Gordley Dep. at 2930.)
5

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dispute that lies at the heart of this case. The record with respect to the adequacy of
Heckmann’s response is squarely in dispute, and will require consideration and
assessment by a factfinder before it may be resolved. As the plaintiff notes, courts
have found that “t]he promptness and adequacy of an employer’s response will often
be a question of fact for the factfinder to resolve.” Carter v. Chrysler Corp., 173 F.3d
693, 702 (8th Cir. 1999). So it is in this case, and we believe it would be error for the
Court to rule as a matter of law based on the record evidence that Heckmann
responded sufficiently promptly and adequately to the plaintiff’s complaints, which
spanned months. See Andreoli v. Gates, 482 F.3d 641, 644 (3d Cir. 2007) (noting
that an employer’s actions may be found adequate as a matter of law where
management undertakes an investigation of a complaint within a day after learning
of the complaint, spoke with the harasser about the allegations, and warned that
harassment will not be tolerated; but also noting that summary judgment has been
found inappropriate where an employer’s supervisor knew about the harassment for
months, even where there is other evidence “that the alleged harasser’s supervisor
later took immediate action upon learning of the harassment.”) (citing Bonenberger
v. Plymouth Twp., 132 F.3d 20, 26 (3d Cir. 1997)). Where there are conflicts in the
record, the Third Circuit has instructed “that a jury should decide whether the

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employer’s remedial action was prompt and adequate.” Andreoli, 482 F.3d at 644.
This is the course that the record compels in this case.
For the foregoing reasons, we find that the plaintiff has come forward with
sufficient evidence to support his hostile work environment claims, and that summary
judgment is unwarranted on the record presented. Accordingly, the defendant’s
motion for summary judgment will be denied.
An appropriate order denying the motion will be entered.

/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Dated: March 27, 2015

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