Rorke v. Aubrey Alexander Toyota et al

Filing 72

MEMORANDUM (Order to follow as separate docket entry) re: 63 MOTION for Summary Judgment filed by Michael Andretta, Aubrey Alexander Toyota. Signed by Honorable Matthew W. Brann on 7/10/2019. (jr)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KIM RORKE,

No. 4:16-CV-00219

Plaintiff,

(Judge Brann)

v.
AUBREY ALEXANDER TOYOTA
and MICHAEL ANDRETTA,
Defendants.
MEMORANDUM OPINION
JULY 10, 2019
I.

BACKGROUND
When the Civil Rights Act of 1964 was passed, President Lyndon B.

Johnson said at its signing: “This Civil Rights Act is a challenge to all of us to go
to work in our communities and our States, in our homes and in our hearts, to
eliminate the last vestiges of injustice in our beloved country.” The purpose of
“Title VII is [] to help ensure equality in the workplace by removing barriers that
have yielded systematic inequality in that setting.” 1 Fifty-five years after Title VII
was enacted, this Court is faced with a high-level manager who was making near
daily gratuitous sexual and misogynistic comments to his underlings at the auto

1

Henry L. Chambers, Jr., The Supreme Court Chipping Away at Title VII: Strengthening It or
Killing It?, 74 La. L. Rev. 1161, 1163 (2014).

dealership location he managed, and business owners who, a jury may well find,
allowed him to continue these acts unheeded.
II.

DISCUSSION
Plaintiff, Kim Rorke, hereinafter “Rorke,” has invoked her rights under Title

VII by filing a three-count employment discrimination complaint against her
former employer, Aubrey Alexander Toyota, and against the general manager of
the automobile dealership, Michael Andretta, hereinafter “Andretta.” Discovery
has concluded, and Defendants jointly filed a motion for summary judgment
asking that final judgment be entered in their favor on all counts. The motion is
now ripe for disposition; for the reasons that follow, it is denied.
A.

Standard of Review

I begin my analysis with the standard of review which undergirds summary
judgment. “One of the principal purposes of the summary judgment rule is to
isolate and dispose of factually unsupported claims or defenses, and we think it
should be interpreted in a way that allows it to accomplish this purpose.”2
Summary judgment is appropriate where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”3 “Facts that could alter the outcome are ‘material facts,’ and
disputes are ‘genuine’ if evidence exists from which a rational person could

2

Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

3

Fed. R. Civ. P. 56(a).
- 2 - 

conclude that the position of the person with the burden of proof on the disputed
issue is correct.”4 “A defendant meets this standard when there is an absence of
evidence that rationally supports the plaintiff’s case.”5 “A plaintiff, on the other
hand, must point to admissible evidence that would be sufficient to show all
elements of a prima facie case under applicable substantive law.”6
“The inquiry involved in a ruling on a motion for summary judgment or for
a directed verdict necessarily implicates the substantive evidentiary standard of
proof that would apply at the trial on the merits.”7 Thus, “if the defendant in a runof-the-mill civil case moves for summary judgment or for a directed verdict based
on the lack of proof of a material fact, the judge must ask himself not whether he
thinks the evidence unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the plaintiff on the evidence presented.”8
“The mere existence of a scintilla of evidence in support of the plaintiff’s position
will be insufficient; there must be evidence on which the jury could reasonably
find for the plaintiff.”9 “The judge’s inquiry, therefore, unavoidably asks . . .
‘whether there is [evidence] upon which a jury can properly proceed to find a

4

Clark v. Modern Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993) (Hutchinson, J.) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) and Celotex, 477 U.S. at 322).

5

Clark, 9 F.3d at 326.

6

Id.

7

Liberty Lobby, Inc., 477 U.S. at 252.

8

Id.

9

Id.
- 3 - 

verdict for the party producing it, upon whom the onus of proof is imposed.’”10
The evidentiary record at trial, by rule, will typically never surpass that which was
compiled during the course of discovery.
“A party seeking summary judgment always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, which it believes demonstrate the
absence of a genuine issue of material fact.”11 “Regardless of whether the moving
party accompanies its summary judgment motion with affidavits, the motion may,
and should, be granted so long as whatever is before the district court demonstrates
that the standard for the entry of summary judgment, as set forth in Rule 56(c), is
satisfied.”12
Where the movant properly supports his motion, the nonmoving party, to
avoid summary judgment, must answer by setting forth “genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.”13 For movants and nonmovants alike, the
assertion “that a fact cannot be or is genuinely disputed” must be supported by:

10

Id. (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S. 442, 447 (1871)).

11

Celotex, 477 U.S. at 323 (internal quotations omitted).

12

Id.

13

Liberty Lobby, 477 U.S. at 250.
- 4 - 

(i) ”citing to particular parts of materials in the record” that go beyond “mere
allegations”; (ii) ”showing that the materials cited do not establish the absence or
presence of a genuine dispute”; or (iii) “showing . . . that an adverse party cannot
produce admissible evidence to support the fact.”14
“When opposing summary judgment, the non-movant may not rest upon
mere allegations, but rather must ‘identify those facts of record which would
contradict the facts identified by the movant.’”15 Moreover, “if a party fails to
properly support an assertion of fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court may . . . consider the fact
undisputed for purposes of the motion.”16 On a motion for summary judgment,
“the court need consider only the cited materials, but it may consider other
materials in the record.”17
Finally, “at the summary judgment stage the judge’s function is not himself
to weigh the evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.”18 “There is no issue for trial unless
there is sufficient evidence favoring the nonmoving party for a jury to return a

14

Fed. R. Civ. P. 56(c)(1).

15

Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003) (Weis,
J.).

16

Fed. R. Civ. P. 56(e)(2).

17

Fed. R. Civ. P. 56(c)(3).

18

Liberty Lobby, 477 U.S. at 249.
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verdict for that party.”19 “If the evidence is merely colorable . . . or is not
significantly probative, summary judgment may be granted.”20
B.

Undisputed Facts21

With that standard outlining the Court’s framework for review, I now turn to
the undisputed facts of this matter. Kim Rorke was employed as a sales consultant
for Aubrey Alexander Toyota for almost six years.22 Rorke testified that her “job
went smoothly” during the tenure of her previous manager, John Broome. During
that time she “enjoyed going to work every day,” “didn’t feel any pressure,”
“didn’t feel any stress,” was generally “happy to go to work.”23
1.

General Manager Mike Andretta

However, when Defendant Michael “Mike” Andretta became the general
manager, things changed for Rorke. She had heard rumors24 that Andretta would
join Aubrey Alexander Toyota as the general manager and she testified that
although “we didn’t know was what was going to happen, [] he was known to be
kind of a jerk in the community.”25 She knew him to be a “bold [] bully.”26

19

Id.

20

Id. at 249–50 (internal citations omitted).

21

See Defendant’s Statement of Facts, April 2, 2019, ECF No. 64 and Plaintiff’s Answer to
Statement of Facts, May 21, 2019, ECF No. 70.

22

From August 2008 to February 9, 2015.

23

Plaintiff’s Deposition Transcript, ECF No. 64-1 at 54:18-21.

24

Id at 55-56.

25

Id. at 56.

26

Id. at 57.
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She further testified that “after he was there a couple months, that’s when he
started turning into the jerk, the power, the ego…it was almost like he was bipolar
or something.”27 In describing Andretta’s aggressive behavior, she explained that
he would use sexual language, referring to both male and female sales consultants,
calling them “assclowns”28 and “dickheads”29 snapping at them to “grow a set of
balls.”30 He would also frequently use expletives in his directives saying things
such as: “I run this fucking place.”31 “Which one of you fucking assclowns did
this?”32 “Did I tell you [that] you could go the fuck home?”33 “Wake the fuck
up.”34 “What the fuck is wrong with you?”35 In the presence of an AfricanAmerican employee, he described an employee as “nigger rich.”36 He would also
describe one employee’s attire as “retarded.”37 Not only did Andretta use
aggressive language, Rorke also witnessed Andretta physically “pick [another
employee, Dennis Christiana] up by the shirt and just thr[o]w him out the door.”38

27

Id. at 159:18-21.

28

Id. at 181.

29

Id. at 170.

30

Id. at 182.

31

Id. at 140.

32

Id. at 168.

33

Id.

34

Id.

35

Id.

36

Id. at 173-4.

37

Id. at 190.

38

Id. at 221.
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She further testified that Andretta was “obsessed” with discussing the sex
lives of the male employees. She testified, “He had a thing about talking about
everybody’s sex life. Don’t ask me why, but he loved to do that in the morning
meetings.”39 She felt like Andretta was “trying to live” through a male employee,
Rick Shover, asking the gentleman “whose house are you sleeping at tonight, your
wife’s or your girlfriend’s?”40
Andretta would use the acronym, ‘POTP,’ which Rorke initially did not
understand.41 She testified that Andretta was the only male at the dealership who
would use the phrase ‘POTP.’42 Rorke testified that one time she was waiting
behind another sales person, Matt Burd, to talk to Andretta, who said to Burd,
“Well I can tell you what’s wrong down there, there’s too much POTP.”43 At that
point, Rorke didn’t know the meaning, of ‘POTP,’ so she asked Andretta what it
meant, and she testified that “he looked at me and said, ‘Don’t worry, you have
plenty of it.’”44 She later asked another sales person, Chad Scholl what it meant,
and Scholl initially did not want to explain the meaning to her. He ultimately told
her it meant ‘power of the pussy.’45

39

Id. at 111.

40

Id. at 171.

41

Id. at 110-112.

42

Id. at 172-3.

43

Id. at 106.

44

Id.

45

Id.
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She continued her testimony lamenting, “That was the most humiliating
moment of my life…I was embarrassed. And [Andretta] used that term quite often
then afterwards.”46 After this incident, she heard him use the term ‘POTP’ several
times, but she estimated it was less than ten times.47
Andretta would often make misogynistic, inappropriate comments about or
toward females, including calling them “Toots.”48 He described his own wife, and
another employee, Bryan Sage’s wife as “crazy bitches.”49 He told another female
employee that she looked “like a hooker.”50 He would make a concerted effort to
make another female cry.51 Andretta used the loudspeaker to page female
employee, Shannon Fink, referring to her only as “Pop Tart.”52 A male employee
reported to Rorke that he overheard Andretta say that he would “never hire another
woman in the sales department again.”53

46

Id.

47

Id. at 110.

48

Id. at 144.

49

Id. at 180,

50

Id. at 213.

51

Id. at 224. Rorke testified that, in fact, Andretta did succeed in making herself, several female
employees, and one male employee, cry.

52

Id. at 209-10. A derogatory term for a female.

53

Id. at 215.
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2.

Rorke’s Salary Structure

In regard to asserted issues with her salary, Rorke testified that when she
“first started [she] was a hundred percent commission with a draw.”54 She further
testified that “they have changed their pay scale so many times.”55 Sometime
around December 2008, another manager told Rorke that she would no longer have
to pay back her draws.56 The way she understood it was that some employees did
have the pay back the draws and some didn’t.57 Then in January 2015, Andretta
told all sales consultants that a new pay plan was going into effect; for people who
sold “20 or 25 cars” they could keep the draw.58
3.

Rorke’s Work Schedule

Rorke testified, “I can’t remember what my day off was in the beginning.
When I ended there, my days off were Saturday. But in the beginning, my day off
was a weekday.”59

54

Id. at 43.

55

Id. at 44.

56

Id. at 47.

57

Id. at 46-8.

58

Id. at 132.

59

Id. at 45.
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4.

Rorke’s Denied Vacation Request

Rorke testified that she was denied a vacation request because Andretta tried
to “bully her.”60 She explained that in December61 she went to Andretta with a
vacation request for May, and he said to her, “Why are you bothering me for this
shit, it’s in May?”62 And he crumpled the paper and threw it down.63 She “filled it
out and then again, and..asked him maybe the next day or two days later and then it
was approved.”64
5.

Rorke’s Unused Vacation Time Payout

The business would pay employees for their unused vacation days. Rorke
went to Andretta sometime in January 2015 and the following exchange occurred,
according to Rorke’s testimony:
So I went in and asked him like I always do when I’m entitled to it, can
I cash in my – I put a written notice in – can I cash my two weeks and
gave it to him.
And he looked at it and read it, you know, said a few ignorant things,
you know. He said, You’re not getting it this way. I said, Well, what
do you mean, I’m entitled to it? He said, Yeah, he said, I’m going to
make you wait to quit.
*****

60

Id. at 121.

61

Year unknown.

62

Id. at 120.

63

Id.

64

Id. at 122.
- 11 - 

And anyway, to get back to the story, he said, You’re going to have to
stay, he said, another month. I’m going to make you suffer another
month. I’m not giving you both weeks. I’m going to pay you one week
in January, one week in February.
Why was that? The policy was that I could get my pay in two weeks if
that’s what I had coming, and I did. I didn’t get it. So he paid me – I
had to do that. He paid me one week in January and then February the
first Friday it would have been, whatever day we would have got our
paychecks, I would have gotten an extra paycheck for my second week
vacation.65
On one previous occasion, Rorke had asked for two weeks of vacation pay
to be paid at once. That request was granted.66
6.

The Employee Handbook/Grievance Procedures

Rorke testified that she received the Blaise Alexander Family Dealerships
Employee Handbook when she began employment with the dealership, and she
further testified that she was unaware of any changes to it during her tenure.67
7.

Rorke’s Resignation on February 9, 2015

Rorke testified that on the day of her resignation, Andretta was “in a foul
mood.”68 She elaborated:
And he came in and took his watch off right away. And that was a sign
of intimidation. He wore a Rolex watch, and if he’d be upset, he would
take that off and throw it down and that was like stay away from me.
So he came in. He wasn’t, I don’t believe he was in the morning
meeting. And he was just on everybody that day. And Dennis

65

Id. at 125-6.

66

Id. at 127.

67

Id. at 49-51.

68

Id. at 68.
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Christiana, who was one of the sales managers, came to me and said
that a customer that I had been working for a long time, like I had two
year’ worth of notes in our auto base system, wanted me to give him a
call that he was ready to do something.
So I said, Okay. And then like a couple minutes later Dennis came back
and said, Never mind, don’t’ contact him, he already bought a car. And
I said, Really, where did he buy a car? Just a common question. And
he said, Here. And I said, What do you mean here? And he said, Yeah,
he came in on Saturday and bought one on Saturday.
Now, the common practice is if you had somebody in the auto base
system and they’re documented and they come in on your day off and
someone delivers the car and spends time with them, it was a split deal,
meaning they got half of the commission. I got half of the commission.
And at that point I think we even got a half of what we call strokes and
strokes earned us bonuses.
So I said, Well, why wasn’t I compensated, you know, why didn’t
anyone come and tell me? Because that was the protocol. I said, You
got an email, the guy was asking for me. Nothing was said. Well, it
was Mike’s day off Saturday.
So I went up to Mike and he got real agitated about it and he said, Don’t
worry about it. He said, I’ll give you another lead or I’ll make it up to
you. Meaning he give me a spoon, which meant if somebody came in
and asked for him, he’d hand them off to me. I said Okay.
So I thought about it a little bit more about it and I went back and I
followed the trail of all of these two years. And the more I went down
the trail, the more angry I got because I worked hard for that customer.
I went out and asked him for it and he just threw a fit and said something
like if you were here Saturday, you would have been able to sell that
car. And I said, Mike, it was my day off. I’m entitled to a day off.
I worked 60 hours almost. I worked, at that point I was working
Monday through Friday for him with no day off and he gave me
Saturdays off. Which kind of backfired on him because he really didn’t
think I would want Saturdays off.

- 13 - 

That all came about because one day he was saying I need extra people
here on a Thursday, which was my day off. And I said, I’ll work. And
he said, But, and I said, But, and he goes, Done. And I said, What do
you mean done? He goes, Don’t say another word. You want Saturdays
off. I know you want Saturday off. Because I had grandchildren and I
wanted to be – visit them. They lived in Mechanicsburg. And he said,
Done. I said, Great, thank you.
I think he thought it was going to bug me that I was off Saturday when
it was busy day and was missing some sales. Honestly, I was happy to
spend the time with my grandchildren. I still made a good living.
So I said, That’s not fair, that was my day off. Just like if what would
have been the difference if they would have came in on a Thursday
when it was my day off?69
*****
And at that point the floor was over-crowded, okay, there was a bunch
of sales people so we didn’t have enough desks per salespeople. So he
moved me and my son to share I say [sic] office, but it was a little room,
you know, that we shared in there.
He followed me into there and he started, you know, on me about
different things. And I said, you know, about – we got into a discussion
about how he didn’t really treat me right.
There were times when I asked him, and I brought this up to him, I said
just like, you know, every other woman was allowed to park right
outside the door in the parking lot, but me and Shannon had to walk in
the dark down to the other end of a road to a very dark woods by the
woods lot to park our cars. And I said, You don’t really care, I mean
just like why can’t I park up here? And he said, No reason, you’re in
sales.
And I said, Well, how would you like it if your wife had to walk like
that? And his answer to me was, I’d make her walk twice as far. And I
said, Hum you probably would.

69

Id. at 69-72
- 14 - 

We got into a discussion about different things and he kept getting
louder and louder. And he said to me, Your day off is no longer
Saturday, pick another day off. I looked at him and I said, You know
what – it was my breaking point. I just, you know, even when you’re
in an abusive relationship, you take it, you take it, you take it, and then
one day it just comes to a head and you can’t take it anymore.
I said, You know what, I will pick a day off. I want Sunday, Monday,
Tuesday, Wednesday, Thursday, Friday, Saturday off. He looked and
me and he said, What? I said, Yeah, I’m quitting. I can’t take you any
longer. He said, You’re going to be sorry. He said, You – his exact
words to me were, You need me more than I need you. And I said,
Really?70
She testified that “This built up, built up and built up.”71 “And you know,
you just can’t take it after there, the pressure every day of going to work and being
on egg shells is unbelievable.”72
8.

Rorke’s reasons for not reporting Andretta

Rorke testified that she never complained to any other supervisors nor the
owner of the dealership about Andretta’s behavior. She explained “Well, because
of being threatened all the time. I mean if I go to him and go over his head and get
that and come back, I went through hell without going over his head. I just couldn't
even imagine what my life would have been like going to work there every day
working for him and going over his head. I was afraid.”73 She continued, “I feared

70

Id. at 74-5.

71

Id. at 12.

72

Id. at 80.

73

Id. at 138.
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for my job. I needed my job. I was going to build a $350,000 home. I wasn’t
going to do it on my husband’s income. I had been there six and a half years. I
had to stay there, okay. I was afraid to go to anyone.”74
She further testified that there was a prior employee who had complained
about Andretta, and nothing was done about Andretta.75 She believed the
Alexander family and other managers knew about Andretta’s behavior and chose
to willfully ignore it.76
9.

Deposition Testimony of Michael Andretta

Andretta testified that he was General Manager of the Aubrey Alexander
Toyota dealership from April 30, 2012 till he was “released from his duties for
performance reasons” on January 2, 2019.77 He testified that Rorke’s performance
was “terrific” prior to the change in the pay plan.78 He explained that “she did a
great job and reaped the benefits, i.e., no Saturdays, i.e., her own office. None of
the other male counterparts had [that.]”79 He testified that he did not want Rorke to
quit, stating “she was a top performer, top 25, you don’t fuck with that.”80 He

74

Id. at 264.

75

Id. at 247.

76

Id. at 247 and 255.

77

ECF No. 64-3.

78

Id.

79

Id.

80

Id.
- 16 - 

testified that after Rorke quit, her husband came into the dealership to “confront”
Andretta and was “very loud and obnoxious in the showroom.”81
Andretta testified that the only disagreement he had with Rorke was “when
her pay plan got changed, as well as everyone else’s at the same time.”82 He said
her attitude toward him changed, saying “I went from being the greatest guy in the
world, knowing what I’m doing, making her more money than she ever had, to
being the worst person in the world, all in a matter of a week.”83 He explained the
pay plan changed for everyone:
That happened the first couple days of January 2015.
*****
Well, I had to – because we were a volume store, I just about doubled
the volume since I started there and we needed to tweak the pay plans,
which is a common thing in the car business.
*****
They changed – Ms. Rorke, at the time, was the only one who kept her
draw, which is a weekly allowance that they were given that they pay
back against their commissions at the end of the month. She needed to
sell ten cars – this was when she was hired. And when we all sat down
in the first couple days of January everybody was offered to keep their
draw at 25 cars per month, including Ms. Rorke.
*****
She kept two managers and myself after the meeting and expletively
[sic] reamed us out, about who do we think we f-ing think we are. I

81

Id.

82

Id.

83

Id.
- 17 - 

keep my draws. I said: You don’t keep your draws, there’s a minimum
you need to sell. Well, I don’t think I have to sell 25 cars. So after
probably ten minutes of going back and forth, her pay plan we agreed
upon, she needed to sell 20.84
Andretta testified that “everything was okay” with Rorke “until she had a
panic attack” about delivering a car to a customer.85 Andretta testified that it is
“standard procedure” in the car business for sales people to personally deliver cars
to customers.86 However, he testified that Rorke’s attack was because “she was
delivering a car to Fenton, PA and she contacted another salesperson that she was
having a panic attack and needed to be picked up immediately.”87
Andretta testified that he only “occasionally” used profanity; never
humiliated Mr. Catlin nor made fun of his sexual orientation at the morning
meetings; and only asked Catlin if he “showered with his ex-wife and his girlfriend
at the same time” in a “different setting where there was no females around.”88
Andretta denied having ever physically grabbing Dennis Christiana.89
Andretta did acknowledge calling Brian Sage’s wife a “crazy bitch,” but he
didn’t think he said it front of Rorke.90 However, he described Rorke as a “sailor

84

Id.

85

Id.

86

Id.

87

Id.

88

Id.

89

Id.

90

Id.
- 18 - 

along with the boys,” meaning that she, along with the male sales people, “had a
sailors mouth” using “profanity on a regular [] basis.”91 Andretta acknowledged
telling the male sales associates to “grow a set of balls,” but that he would not say
it to the females.92 He testified that he never asked Rick Shover “which family got
the Weis gift card, the white family or the black family.”93 However, Andretta did
acknowledge that he asked Shover, “Who did you sleep with last night, your wife
or girlfriend?”94 Andretta also acknowledged having used the “n-word” in front of
the sales staff.95
Andretta denied ever having said that he would “never hire another woman
in the sales department again.”96 Andretta also testified that he never called
Shannon Fink a “Pop-Tart;” that Ashley Frye Martinez had given Fink that nick
name; and it does not have a sexual connotation.97 Andretta acknowledged
sending Fink to the mall to buy a new shirt because her shirt was “inappropriate”
because “it was a low-cut top.”98 Andretta also testified that although sometimes

91

Id.

92

Id.

93

Id.

94

Id.

95

Id.

96

Id.

97

Id.

98

Id.
- 19 - 

after work he’d ask Ashley Frye Martinez to make a “run” for alcohol, she always
offered to mix the drinks for him, but he didn’t ask her to do that.99
Andretta acknowledged calling Rorke “Toots,” he said it was “a nickname
she had. All called her Toots.”100
Andretta denied refusing and tearing up a vacation request from Rorke.101
He testified that he “handed it back to her when I said I was busy, I would get to it
later…Several days later, I believe it was, I approved it”102
He also explained permitting Rorke to have Saturdays off was unusual. He
said that “In the car business that is unheard of, not to have to work Saturdays, in a
sales position…Saturday is your bread and butter day of the week. That’s when
most people that work a normal job have off and they come out and look for a
car.”103 But he described Rorke as having “demanded that she have Saturdays off
so she could spend time with her grandchildren.”104
Finally, Andretta did acknowledge using the term “POTP” to the sales staff,
and he confirmed that it meant “power of the pussy.”105 He further elaborated that

99

Id.

100

Id.

101

Id.

102

Id.

103

Id.

104

Id.

105

Id.
- 20 - 

it mean that “women have the power in a car deal.”106 He denied having told
Rorke that she had “plenty of it.”107
10.

Deposition Testimony of Ashley Frye Martinez

Plaintiff’s counsel deposed a former employee, Ashley Frye Martinez.
Martinez testified that several people complained to her about Andretta’s behavior,
although the employee’s assessment of him seemed to be mixed. When asked who
complained about him, she testified:
I couldn’t say[,] that in finance there was definitely times that Joe and
Brian would be upset. And in sales it would depend on the day. If Mike
was helping them sell a lot of cars then everybody was happy with him.
And if he asked them to do something and they didn’t see that that was
what they needed to be doing, then they would have gripes about him.
So it would kind of day-to-day switch.108
Martinez further testified that Andretta did not say anything to her, nor did
she witness him say anything to others, that she found to be sexually offensive.109
However, she later testified that she did hear him and others use the term POTP.110
She understood it to mean “if your wife or girlfriend was nagging, I guess, it was
because of the POTP.”111

106

Id.

107

Id.

108

ECF No. 64-2.

109

Id.

110

Id.

111

Id.
- 21 - 

Martinez acknowledged that there were times Andretta made her cry at
work, but she qualified her answer, saying “But I was dealing with a lot of personal
things in my life at that time, so it’s hard to say if it was Mike or if it was my
abusive relationship that I was in.”112 She testified that she would cry at work
“probably a couple times a week. I was very stressed at that time.”113 She testified
that although she did have an anxiety attack at work and had to leave, it was not
caused by Andretta.
Andretta did occasionally ask her, after hours, to make him a hot toddy or
bring him a beer. When asked why he didn’t ask others to make the drink for him,
she responded, “I always offered. It was never really discussed. He would make
them or I would make them. It wasn’t told, I guess.”114
Additionally, Martinez acknowledged that she also called a fellow
employee, Shannon Fink, a Pop-Tart, “because she was very flaky.”115 She doesn’t
remember if Andretta called Fink that or not.116

112

Id.

113

Id.

114

Id.

115

Id.

116

Id.
- 22 - 

11.

Deposition Testimony of Bryan Sage

Another former employee, Bryan Sage, was deposed.117 Sage worked as the
finance manager for Aubrey Alexander Toyota for approximately five years.118
Sage started with the business the same day Andretta did and attended all the sales
meetings.119 Andretta was Sage’s direct supervisor, and Sage testified that they
“did not get along at all. You know there – there were days where we wouldn’t
even speak to each other, even though, you know, my – work station was within
arm’s reach of him. We – we did not get along. We – we were not friends. We
were not – you know, he was my boss and I was his employee, so to speak.”120
When asked to describe Andretta’s treatment of women, Sage replied: “You
know he – it depended on who they – I – I’ve seen him treat, you know, certain
women very well and then other women he did not treat very well.”121 Sage said
that Andretta would refer to Shannon Fink as a Pop Tart “daily” and “hooker” on
two or three occasions.122 Sage said he never heard Andretta refer to Fink by her
name, and even paged her over the intercom system calling for “Pop Tart.”123 Sage
testified that Ashley Frye Martinez went through several difficult personal

117

ECF No. 69-5.

118

Id.

119

Id.

120

Id.

121

Id.

122

Id.

123

Id.
- 23 - 

circumstances, and that she would cry at work almost daily, and that Andretta
would make concerted efforts to make her cry.124 In fact, Andretta would organize
betting pools for him and certain other employees to take bets on how many hours
in the workday would elapse before Martinez cried.125
Sage also witnessed Andretta and Rorke’s interactions daily, and described
those as follows: “He – you know, he – he treated Kim basically the same as – as
he treated a lot of people. He – I – I wouldn’t say that he – he was an equal
opportunity jerk, so to speak, so I don’t – I wouldn’t say that Kim was treated
worse than anyone else, but there were times that definitely Kim was talked to in a,
you know, unprofessional manner.”126 Sage testified that Andretta would offend
Rorke “at least on a daily to a multiple times a week.”127
Sage testified that he heard Andretta use the acronym POTP “multiple
times” and confirmed that it stands for ‘power of the pussy.’128 Sage further
testified that Andretta told multiple employees to “get[] good at sucking dick, so
that way you’d have something warm in your belly in the unemployment line.”
When asked if Sage could remember if Andretta made this comment in the

124

Id.

125

Id.

126

Id.

127

Id.

128

Id.
- 24 - 

presence of Rorke, Sage replied, “ if my memory is correct, you know, there is a
90, 95 percent chance that yes.”
Sage explained that Andretta also made negative references to Sage’s wife
“on almost a daily basis.”129 Andretta would call Sage’s wife a “bitch, dumb bitch,
[and] stupid” around female employees, including Rorke. Sage explained that after
he briefly left Aubrey Alexander Toyota and was working for a competitor, he
asked Rorke to ask Andretta if Sage could return to his employment. Andretta
replied, “I’ll bring him back if – if, you know, he doesn’t let that dumb bitch
control his life.”130 Sage testified that Andretta would make comments about
Sage’s wife in front of “Kim Rorke, Ashley Martinez, even Terry Stauffer – the
HR rep.”131
12.

Deposition Testimony of Dennis Christiana

Another former employee, Dennis Christiana, the sales manager/customer
relations manager, was also deposed.132 Andretta was Christiana’s direct
supervisor, and he said they “got along [] pretty well.”133 Christiana testified that

129

Id.

130

Id.

131

Id.

132

ECF No. 69-6.

133

Id.
- 25 - 

the incident where Andretta shoved him out of the door was not a serious
altercation or fight, but “it was more of a playing around.”134
Christiana also heard Andretta use the term “POTP” and confirmed its
meaning.135 Christiana also confirmed that Andretta would call Shannon Fink
“Pop Tart.”136
Christiana also discussed the change in pay that went into effect for
everyone. When the pay change went into effect Christiana testified that “we
made it a level playing field that every sales person had the same sales plan that
when you hit I think it was 20 cars you got to keep your draw.”137 He continued,
“that’s where it changed for Kim. When she lost that 10 cars and had to sell 20
cars to keep her draw…that was I think the turning point for Kim …and Kim was
selling 20 cars. So to me I didn’t understand – what the – I guess what the big deal
was.”138
13.

Deposition Testimony of Kyle Reigle

Kyle Reigle is currently employed by Aubrey Alexander Toyota as a sales
specialist.139 Reigle said he got along well with Rorke, but that Andretta did not.

134

Id.

135

Id.

136

Id.

137

Id.

138

Id.

139

ECF No. 69-7.
- 26 - 

Reigle said that Andretta would frequently use the term “power of the
pussy,” along with the acronym “POTP,” and would frequently do so in Rorke’s
presence. Reigle also testified that he heard Andretta refer to Bryan Sage’s wife as
a “crazy bitch.”140 Reigle heard Andretta call Shannon Fink a ‘Pop Tart,’ and
explained “I think it had something to do with her being a stripper.”141 Reigle
testified that Rorke and he were both present when Andretta asked Rick Shover
‘who he slept with the prior night, his wife or girlfriend’.142 Reigle also testified
that he had heard Andretta say that he would never hire another woman in the sales
department again.143
Reigle also did not agree with Christiana’s description of the encounter
between Christiana and Andretta. Reigle testified “Mike Andretta and Dennis
were fighting and yelling back and forth at each other and Mike Andretta pushed
him out of the back door in the back hallway to go out to the back lot.”144
Finally, Reigle testified that he had heard that another employee, Matt Barto,
“went above and spoke to the owners about how things were and now he works for
our other store and he is doing great.”145

140

Id.

141

Id.

142

Id.

143

Id.

144

Id.

145

Id.
- 27 - 

14.

Deposition Testimony of Terry Stauffer

Terry Stauffer has been the office manager for Aubrey Alexander Toyota
since 1994.146 Stauffer worked “fairly closely” with Andretta, who was Stauffer’s
direct supervisor.147 Stauffer described Andretta as “gruff” but never heard
Andretta use the term ‘POTP.’148
15.

Deposition Testimony of Chad Scholl

Chad Scholl has worked for Aubrey Alexander Toyota since 2011, first as a
sales person, and currently as a team leader.149 Scholl testified that everyone got
along with Rorke, including Andretta “for a period of time.”150 Scholl heard
Andretta use the term ‘POTP’ “quite a few times” including in front of Rorke.151
Scholl knew the term to mean that “women have the power of the pussy.”152
Scholl heard Andretta call Shannon Fink a ‘Pop Tart’ on a “daily basis” as a
“stripper name.”153

146

ECF No. 69-8.

147

Id.

148

Id.

149

ECF No. 69-9.

150

Id.

151

Id.

152

Id.

153

Id.
- 28 - 

Scholl also heard Andretta ask Rick Shover ‘which family got the gift card
— the white family or the black family.’154
Scholl left the dealership in November 2018. He testified that Blaise
Alexander called him in December 2018, and Scholl explained that he left because
of Andretta’s behavior. Scholl testified that Blaise Alexander “did not seem
surprised” to hear about Andretta’s behavior, because Scholl “heard through the
grapevine that he spoke to Matt Barto [] as well.”155
16.

Deposition Testimony of Matt Burd

Matt Burd has been the sales manager for Aubrey Alexander Toyota for the
past ten years.156 During Andretta’s tenure, Andretta was Burd’s direct supervisor.
He did not hear Andretta use the term ‘POTP,’ but did hear Andretta call Shannon
Fink a ‘Pop Tart.’157 Burd also heard Andretta call Bryan Sage’s wife a ‘bitch.’158
Burd further testified that the decision-making authority to change the
employee’s pay plan was “Mike’s [Andretta’s] idea.”159

154

Id.

155

Id.

156

ECF No. 69-10.

157

Id.

158

Id.

159

Id.
- 29 - 

17.

The Employee Handbook

Finally, the dealership does have a twenty-seven employee handbook
applicable to all of its dealership locations.160 Three pages of the handbook are
dedicated to “Discriminatory Harassment.”161 There is a reporting system listed in
the handbook and employees are offered “multiple complaint alternatives” so that
they are “comfortable making such a report.”162 “Employees may report
discriminatory harassment to any of the following Company representatives: Blaise
Alexander; [the] General Manager of the Dealership; [and] Your Immediate
Supervisor.”163 Just prior to this list, in bold, the handbook states: “It is absolutely
necessary that you inform the Company immediately if you experience or observe
any discriminatory harassment.”164 Rorke signed an acknowledgment on August 4,
2008 that she received the employee handbook.165
C.

Analysis

Rorke has brought three, necessarily intertwined, causes of action; and
Defendants Aubrey Alexander Toyota and Andretta raise one affirmative defense.

160

See ECF No. 64-6.

161

Id. at 4.

162

Id. at 6.

163

Id.

164
165

Id.
ECF No. 64-7.
- 30 - 

Rorke bring claims of disparate treatment theory of gender discrimination,166 the
hostile work environment theory of gender discrimination,167 and a claim under the
Pennsylvania Human Relations Act “PHRA.” It is well-settled that “[c]laims
under the PHRA are interpreted coextensively with Title VII claims.”168
Defendants raise the affirmative defense provided by the United States Supreme
Court decisions Ellerth/Faragher, infra.169

166

“The archetypal claim of discrimination in violation of Title VII is a claim of ‘disparate
treatment,’ which occurs when an employer treats some employees less favorably than others
because of their gender.” Desouza v. Office of Children & Family Servs., No. 18-CV-2463PKC-SMG, 2019 WL 2477796, at *3 (E.D.N.Y. June 12, 2019) (Chen, J.) see also United
States v. Brennan, 650 F.3d 65, 89–90 (2d Cir. 2011); quoting Int’l Bhd. of Teamsters v. United
States, 431 U.S. 324, 335 n.15 (1977).

167

“In addition to disparate treatment, the Supreme Court has recognized that quid pro quo sexual
harassment and hostile work environment are forms of gender discrimination prohibited by
Title VII, and such practices furnish independent causes of action.” Desouza at *3, See also
Redd v. N.Y. Div. of Parole, 678 F.3d 166, 175 (2d Cir. 2012) (“[I]t is established ‘without
question, that when a supervisor sexually harasses a subordinate because of the subordinate’s
sex, that supervisor discriminates on the basis of sex.’” (quoting Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 64 (1986) (alterations omitted))); see also Vinson, 577 U.S. at 65
(“[S]exual misconduct constitutes prohibited ‘sexual harassment,’ whether or not it is directly
linked to the grant or denial of an economic quid pro quo, where ‘such conduct has the purpose
or effect of unreasonably interfering with an individual’s work performance or creating an
intimidating, hostile, or offensive working environment.’” (quoting 29 C.F.R. §
1604.11(a)(3))).

168

Atkinson v. LaFayette Coll., 460 F.3d 447, 454 (3d Cir. 2006), and see Kelly v. Drexel Univ.,
94 F.3d 102, 105 (3d Cir.1996).

169

The United States Supreme Court has explained:
When an official act does not underlie the constructive discharge, the Ellerth and
Faragher analysis, we here hold, calls for extension of the affirmative defense to the
employer. As those leading decisions indicate, official directions and declarations are
the acts most likely to be brought home to the employer, the measures over which the
employer can exercise greatest control. See Ellerth, 524 U.S., at 762, 118 S.Ct. 2257.
Absent “an official act of the enterprise,” ibid., as the last straw, the employer
ordinarily would have no particular reason to suspect that a resignation is not the
typical kind daily occurring in the work force. And as Ellerth and Faragher further
point out, an official act reflected in company records—a demotion or a reduction in
compensation, for example—shows “beyond question” that the supervisor has used
- 31 - 

1.

Disparate Treatment Theory of Gender Discrimination

Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., provides
that “[i]t shall be an unlawful employment practice . . . to discriminate against any
individual . . . because of . . . sex.”170 Here, Rorke is asserting the disparate
treatment theory of gender discrimination.171 Under the familiar McDonnell
Douglas mode of analysis, the tripartite standard employed is that first, the plaintiff
must establish a prima facie case; second, the defendant must articulate some
legitimate, nondiscriminatory reason for the employment action; and third, the
plaintiff must then prove that the defendant’s reason was a mere pretext for
discrimination.172
a.

Prima Face Case of Discrimination

The prima facie elements of gender discrimination are four-fold: (1) she is a
member of a protected class; (2) she was qualified for the position; (3) she suffered
an adverse employment action; (4) the adverse employment action occurred under

his managerial or controlling position to the employee's disadvantage. See Ellerth,
524 U.S., at 760, 118 S.Ct. 2257. Absent such an official act, the extent to which the
supervisor's misconduct has been aided by the agency relation, as we earlier
recounted, see *149 supra, at 2353, is less certain. That uncertainty, our precedent
establishes, see supra, at 2353–2354, justifies affording the employer the chance to
establish, through the Ellerth/Faragher affirmative defense, that it should not be held
vicariously liable.
Pennsylvania State Police v. Suders, 542 U.S. 129, 148–49 (2004).
170

42 U.S.C. § 2000e 2(a)(1).

171

Pl. Opposing Br. ECF No. 69 at 4.

172

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
- 32 - 

circumstances that give rise to an inference of unlawful discrimination.173

With

this analysis, the focus “is always whether the employer is treating ‘some people
less favorably than others because of their race, color, religion, sex, or national
origin.’”174 Therefore, the plaintiff must produce “sufficient evidence to allow a
fact finder to conclude that the employer is treating some people less favorably
than others based upon a trait that is protected under Title VII.”175 This
determination is question of law to be made by the court.176
Defendants in this matter do not dispute the first three elements.177
Consequently, my analysis only concerns whether or not Rorke suffered an
‘adverse employment action under circumstances that give rise to an inference of
unlawful discrimination.’ Although there are several adverse employment actions
that may give rise to an inference of discrimination, only one is necessary to
survive the instant motion for summary judgment. Therefore, the Court will
conserve judicial resources and focus on what I view as the actions most damning
to Defendants.

173

See, e.g., Wooler v. Citizens Bank, 274 Fed. App’x 177, 180 (3d Cir. 2008) (citing Texas Dep’t
of Cmty. Affairs v. Burdline, 450 U.S. 248, 253 (1981)).

174

Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999) (quoting Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 577 (1978)).

175

Iadimarco v. Runyon, 190 F.3d 151, 161 (3d Cir. 1999).

176

Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638 (3d Cir. 2015).

177

Def. Supporting Br. ECF No. 65 at 14.
- 33 - 

The testimony clearly demonstrated that since the year 2008, Rorke enjoyed
a benefit that other sales people did not – she was able to retain her monthly
commission draw if she sold a mere ten cars per month.178 This was a salary
decision made by Andretta’s predecessor.179 However, in January 2015, Andretta
changed the salary structure across the board for all employees so that the sales
persons could only keep their draw if they sold 25 cars per month.180 Deposition
testimony confirmed that the decision to change the salary plan was Andretta’s
“idea.”181
I digress briefly from Rorke’s burden to set forth a prima facie case of
discrimination and turn now to Defendant’s burden to set forth a ‘legitimate nondiscriminatory reason’ for its actions. A defendant’s burden at this stage of the
McDonnell Douglas framework is “‘relatively light,’ and the employer need only
‘introduc[e] evidence which, taken as true, would permit the conclusion that there
was a nondiscriminatory reason for the unfavorable employment
decision.’”182 The employer’s burden is satisfied by simply explaining its actions

178

ECF No. 64-1 at 47.

179

Id.

180

Id. at 132. Rorke ultimately negotiated that number down from 25 to 20.

181

ECF No. 69-10.

182

Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006) (citing Fuentes v. Perskie, 32 F.3d
759 (3d Cir. 1994.)).
- 34 - 

or producing evidence of a legitimate nondiscriminatory reason.183 This burden is
merely one of production, not one of persuasion.184
In the matter at hand, this burden was easily satisfied, as both Andretta and
Dennis Christiana testified that the pay plan changed for all employees. Andretta
said “her [Rorke’s] pay plan got changed, as well as everyone else’s at the same
time.”185 Dennis Christiana explained that “we made it a level playing field that
every sales person had the same sales plan that when you hit I think it was 20 cars
you got to keep your draw.”186
Because “the prima facie case and pretext inquiries often overlap; [] the
court may skip the analysis of a plaintiff’s prima facie case and proceed directly to
the evaluation of pretext if the defendant offers a nondiscriminatory explanation
for its employment decision.”187 “At trial, the plaintiff must convince the finder of
fact ‘both that the reason was false, and that the discrimination was the real
reason.’”188 “Plaintiff cannot simply show that the employer’s decision was wrong
or mistaken. . .rather, the nonmoving plaintiff must demonstrate such weakness,

183

See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 245, 255 (1981).

184

See id. at 256-258.

185

ECF No. 64-3.

186

ECF No. 69-6.

187

Leong v. SAP Am., Inc., 67 F. Supp. 3d 972, 980 (N.D. Ill. 2014), see also Benuzzi v. Bd. of
Educ. of City of Chicago, 647 F.3d 652, 664 (7th Cir.2011).

188

Id. at 412-413 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (emphasis in
original).
- 35 - 

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its actions that a reasonable factfinder could
rationally find them unworthy of credence.”189 “Plaintiff also may survive
summary judgment by pointing to evidence in the record which “allows the
factfinder to infer that discrimination was more likely than not a motivating or
determinative cause of the adverse employment action.”190
I find that Rorke has met her burden at this stage of the litigation and the
matter will be held over for trial. The record is replete with evidence that Andretta
intentionally antagonized women.191 The question for the jury will be whether the
motivation behind the pay structure change (and Rorke’s other alleged adverse
employment actions) was really intended as an across the board policy, or if,
because Rorke was the sole employee at the time who benefitted prior to the policy
change (and was affected detrimentally after the policy change) this was yet

189

Fuentes v. Perskis, 32 F.3d 759, 765 (3d Cir. 1994).

190

Jones, 198 F.3d at 413 (citing Fuentes, 32 F.3d at 764)

191

Andretta told Rorke she had “plenty of” the power of the pussy ECF No.64-1 at 106; Andretta
saying he would never hire another female sales person ECF No. 64-1 at 215; Andretta
acknowledged calling Rorke “Toots” ECF No. 64-3; Andretta would intentionally make
Ashley Frye Martinez cry, going so far as to make bets as to how fast he could make her cry
ECF Nos. 64-2 and 69-5; Andretta would refer to Shannon Fink as a ‘Pop Tart’ and a hooker
ECF No. 69-5; Bryan Sage testified that Andretta would offend Rorke “at least on a daily to a
multiple times a week” ECF No. 69-5.
- 36 - 

another of Andretta’s intentional antagonizations directed at Rorke, the lone female
salesperson.192
2.

Sexual Harassment based on a Hostile Work Environment

“To establish a Title VII hostile work environment claim against one’s
employer, a plaintiff employee must prove:
1) the employee suffered intentional discrimination because of his/her
sex, 2) the discrimination was severe or pervasive, 3) the discrimination
detrimentally affected the plaintiff, 4) the discrimination would
detrimentally affect a reasonable person in like circumstances, and 5)
the existence of respondeat superior liability.”193
Discrimination that is either “severe or pervasive”194 is a fact-intensive
inquiry and is determined by “looking at all the circumstances.”195 “‘Severity’ and
‘pervasiveness’ are alternative possibilities: some harassment may be severe
enough to contaminate an environment even if not pervasive; other, less
objectionable, conduct will contaminate the workplace only if it is pervasive.”196
“‘Isolated incidents’ will amount to harassment if ‘extremely serious.’”197
“However, a plaintiff must plead the incident to ‘be extreme to amount to a change

192

Because, if parity among employees were the primary consideration, Andretta could have
changed the pay structure so that all sales persons could keep their draw by selling 10 cars per
month like Rorke.

193

Minarsky v. Susquehanna Cty., 895 F.3d 303, 310 (3d Cir. 2018) quoting Mandel v. M & Q
Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013).

194

Castleberry v. STI Group, 863 F.3d 259, 264 (3rd Cir. 2017). Defendants mistakenly state that
plaintiffs must show discrimination that is both severe and pervasive.

195

Harris v. Forklift, 510 U.S. 17, 23 (1993).

196

Castleberry, at 264. (internal citations and quotations omitted).

197

Id.
- 37 - 

in the terms and conditions of employment’ for it to serve as the basis of a
harassment claim.”198 A court must consider the totality of the circumstances,
including 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.”199 “Simple
teasing, offhand comments, and isolated incidents (unless extremely serious) will
not amount to” a hostile work environment.200
Here, I find that the totality of the circumstances surrounding the work
environment Andretta created at the Aubrey Alexander Toyota dealership was
sexually hostile, although the standard is written in the disjunctive,201 both severely
and pervasively because of sex to survive the motion for summary judgment. The
record is replete with instances of Andretta using the word ‘pussy;’ Andretta
would call women crazy bitch, dumb bitch ‘Toots’, hooker, and ‘Pop Tart;’
Andretta would call employees ‘dickheads’ and advise them to ‘grow a set of
balls;’ at morning sales meetings, in front of all the sales people, Andretta would
ask a male employee about his sex life; Andretta told multiple employees to “get[]

198

Id.

199

Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).

200

Faragher v. Boca Raton, 524 U.S. 775, 786-87 (1998) (internal quotations and citations
omitted).

201

See Castleberry, supra.
- 38 - 

good at sucking dick, so that way you’d have something warm in your belly in the
unemployment line.”
For all of these reasons, this claim survives.202 However, this determination
does not end my inquiry as to this claim, since Defendants have raised an
affirmative defense.
a.

Ellerth/Faragher Affirmative Defense to Constructive
Discharge

The Ellerth/Faragher203 doctrine acts as a shield from employment
discrimination claims when there is no ‘tangible employment action.’
Ellerth/Faragher hold employers strictly liable for supervisor harassment that
“culminates in a tangible employment action, such as discharge, demotion, or
undesirable reassignment.”
However, “when no tangible employment action is taken, the employer may
defeat vicarious liability for supervisor harassment by establishing, as an
affirmative defense, both that ‘the employer exercised reasonable care to prevent

202

Grazioli v. Genuine Parts Co., 409 F. Supp. 2d 569, 577 (D.N.J. 2005) (finding frequent use
of the word ‘pussy’ along with other disparaging comments about women both gender based
and ‘severe or pervasive’ to survive summary judgment); U.S. E.E.O.C. v. Scolari Warehouse
Markets, Inc., 488 F. Supp. 2d 1117, 1138 (D. Nev. 2007) (finding that male employees
looking at hookers online, discussing women’s bodies, including their ‘pussies’ rise to the level
of severe or pervasive conduct (or add to that conduct) to create a hostile work environment
sufficient to survive summary judgment); Bader v. Special Metals Corp., 985 F. Supp. 2d 291
(N.D.N.Y. 2013) (“Detailed variety of appalling misogynist conduct, including … sexually
suggestive comments… ‘blow job,’ ‘slut,’ ‘whore,’ and ‘cunt,’ …sufficiently severe or
pervasive to create hostile work environment.”)

203

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998);.Faragher v. City of Boca Raton,
524 U.S. 775 (1998).
- 39 - 

and correct promptly any sexually harassing behavior,’ and that ‘the plaintiff
employee unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.’”204 This a
two part affirmative defense for the employer, centered around an employer’s
effort to install effective grievance procedures as well as the employee’s effort to
report harassing behavior.
“The cornerstone of this analysis is reasonableness: the reasonableness of
the employer’s preventative and corrective measures, and the reasonableness of the
employee’s efforts (or lack thereof) to report misconduct and avoid further
harm.”205 “Thus, the existence of a functioning anti-harassment policy could prove
the employer’s exercise of reasonable care so as to satisfy the first element of the
affirmative defense.”206
Although Aubrey Alexander Toyota had an employee handbook that set
forth a grievance procedure, there is also evidence that the patriarch of the family
business, Blaise Alexander, and a staff member from human resources knew of at
least some of Andretta’s behaviors. Genuine issues of fact therefore preclude the
grant of summary judgment based on this affirmative defense.

204

Pennsylvania State Police v. Suders, 542 U.S. 129, 145-6 (2004), (quoting Ellerth, at 765.

205

Minarsky, at 303.

206

Id. (emphasis in original).
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For example, Chad Scholl testified that Blaise Alexander “did not seem
surprised” to hear about Andretta’s behavior, because Scholl “heard through the
grapevine that he spoke to Matt Barto [] as well.”207 Bryan Sage testified that
Andretta would make comments about Sage’s wife in front of “Kim Rorke, Ashley
Martinez, even Terry Stauffer – the HR rep.”208 The fact that the dealership
owners may have known of Andretta’s behavior calls into question whether this
employer took reasonable care to prevent and correct harassment. I therefore end
my analysis here and I do not turn to the second element of the affirmative
defense.209
III.

CONCLUSION
For all of the stated reasons, the Defendants’ motion for summary judgment

is denied.
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

207

ECF No. 69-9.

208

ECF No. 69-5.

209

Whether Rorke had a reasonable fear of retaliation such that that her only option was to quit.
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