MERELETTO v. SOLAR POWER INDUSTRIES, INC.
Filing
45
MEMORANDUM OPINION granting summary judgment in favor of Defendant. Judgment Order to follow. Signed by Judge David S. Cercone on 8/24/11. (jmc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DONNA MERELETTO,
Plaintiff,
vs.
SOLAR POWER INDUSTRIES, INC.
Defendant.
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2:09cv699
Electronic Filing
MEMORANDUM OPINION
August 24, 2011
I.
INTRODUCTION
Plaintiff, Donna Mereletto (“Mereletto” or “Plaintiff”), initiated this action by filing a
two (2) count Complaint against Defendant, Solar Power Industries, Inc. (“SPI”) alleging
employment discrimination in violation of the Age Discrimination in Employment Act of 1967,
29 U.S.C. § 621 et seq. (“ADEA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. (“Title VII”), the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 (“ADA”),
and the Pennsylvania Human Relations Act, 43 PA. STAT. § 951 et seq. (“PHRA”). SPI has filed
a motion for summary judgment, Plaintiff has responded and the motion is now before the Court.
II.
STATEMENT OF THE CASE
SPI is a manufacturer of solar cells and modules for the photovoltaic industry.
Defendant‟s Statement of Undisputed Material Facts (“Def. SUMF”) ¶ 1. Mereletto, a female
born July 10, 1957, was employed by SPI from April 14, 2008, until October 1, 2008. Def.
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SUMF ¶¶ 2 & 31. Mereletto worked as a processing operator/production worker in SPI‟s Cell
Processing and Module Assembly departments. Def. SUMF ¶ 5. Mereletto‟s duties included
handling and inspecting silicon wafers and finished solar cells, as well as panel manufacturing.
Def. SUMF ¶ 6.
Throughout Mereletto‟s employment, SPI maintained an Employee Handbook which
Mereletto received and reviewed at the outset of her employment. Def. SUMF ¶¶ 9 & 10. SPI‟s
Employee Handbook also contained the following workplace policies: (1) a Non-Harassment
Policy; (2) a Sexual Harassment Policy; (3) a Substance Abuse Policy; and (4) a Workplace
Violence Policy. Def. SUMF ¶¶ 11, 12, 13 & 14. In addition, SPI maintained a Drug and
Alcohol Policy which Mereletto received and reviewed at the outset of her employment. Def.
SUMF ¶¶ 16 & 17. SPI also maintained rules for keeping a clean environment and preventing
contamination of solar cells and modules, which included the General Safety & Operating Rules
in Building #1. Def. SUMF ¶ 19. Mereletto admits that she received and reviewed the General
Safety & Operating Rules in Building #1 at the outset of her employment. Def. SUMF ¶ 20.
On the morning of July 9, 2008, SPI employee Lonnie Rouzzi expressed concern
regarding Mereletto‟s condition to Stephen K. Schaefer (“Schaefer”), a Production Manager.
Def. SUMF ¶¶ 8 & 23. Schaefer went to the Module Assembly area to check on Mereletto. Def.
SUMF ¶ 23. Schaefer asked Mereletto if she had been drinking, and she indicated she had been
drinking beer the previous evening. Def. SUMF ¶ 24. Believing that Mereletto was under the
influence of alcohol, Schaefer sent her home for the rest of the day. Def. SUMF ¶¶ 12.
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Of the eighty-four (84) statements of undisputed material facts set forth by SPI, Mereletto
admits all but paragraph numbers 34, 36 57 & 74. See Plaintiff‟s Counter Statement of
Undisputed Material Facts.
2
Both SPI‟s Drug and Alcohol Policy and Substance Abuse Policy prohibit employees
from reporting to work or remaining on duty while under the influence of alcohol. Def. SUMF ¶¶
13 & 18. The Substance Abuse Policy specifically stated that “[a]ny violation of this policy may
result in disciplinary action, up to and including discharge.” Def. SUMF ¶ 13. Schaefer
determined that a three-day suspension without pay was an appropriate sanction for Mereletto‟s
violation of SPI policies. Def. SUMF ¶ 26. Schaefer then informed Mereletto that she was
suspended without pay until July 14, 2008. Def. SUMF ¶ 27. Mereletto returned to work on July
14, 2008, and apologized to Schaefer for the July 9 incident. Def. SUMF ¶ 29.
On August 21, 2008, Mereletto was working in Module Assembly in Building #1, when
her hair got caught in her necklace. Def. SUMF ¶ 32. While in the Module Assembly area,
Mereletto allegedly cut of a lock of her hair. Def. SUMF ¶ 33. Schaefer was informed of the
incident and he went to Mereletto‟s work area to question her. Def. SUMF ¶ 35. Mereletto
explained what happened, and she was issued a written warning for violating SPI‟s efforts to
maintain a clean environment. Def. SUMF ¶¶ 36 & 38.
On September 24, 2008, Casie Curcio “(Curcio”), Mereletto‟s coworker, reported to
Dana Corey (“Corey”), an SPI HR Manager, that while transporting wafers between company
buidings in Curcio‟s automobile, Mereletto rubbed Curcio‟s leg and tried to kiss her. Def. SUMF
¶ 45. Corey, Schaefer and Donald Meyer (“Meyer”), Mereletto‟s shift supervisor, met with
Mereletto regarding Curcio‟s complaint. Def. SUMF ¶ 47. Though Mereletto denied the charge,
Schaefer believed Curcio because he had previously warned Mereletto not to touch other
employees. Def. SUMF ¶¶ 48 & 49. Because this was a violation of SPI‟s Sexual Harassment
Policy, and because of other complaints about regarding her performance and unusual behavior,
Mereletto was suspended for the remainder of the week. Def. SUMF ¶¶ 39, 41, 42 & 47.
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On September 29, 2008, Mereletto was given a Disciplinary Action Form which
described the incidents leading to her suspension as: “[u]nwanted sexual advancements, unusual
behavior, unsatisfactory work performance.” Def. SUMF ¶¶ 50 & 51. At that same time,
Schaefer instructed Mereletto not to retaliate against her coworkers. Def. SUMF ¶ 54. Despite
such warning, on October 1, 2008, Schaefer observed Mereletto confront Curcio regarding
Curcio‟s allegations against her. Def. SUMF ¶¶ 55 & 56. Schaefer alleged that Mereletto was
yelling at Curcio in a threatening manner with her face very close to Curcio‟s. Def. SUMF ¶ 57.
Schaefer asked Mereletto to step into the hallway outside the Cell Processing area, and
reminded Mereletto she had been told not to retaliate against her coworkers. Def. SUMF ¶¶ 59 &
61. While in the hallway, Mereletto stood at the window looking into the Cell Processing area
and extended her middle finger toward Curcio. Def. SUMF ¶ 62. Schaefer then terminated
Mereletto‟s employment with SPI for her retaliation against Curcio in violation of SPI‟s
Workplace Violence Policy, Sexual Harassment Policy, and its Standards of Conduct. Def.
SUMF ¶¶ 63 & 64.
Mereletto alleges that while employed by SPI she was subjected to discrimination and
harassment because of her age, sex and disabilities or perceived disabilities, and was retaliated
against for complaining about such discrimination and harassment.
III.
LEGAL STANDARD FOR SUMMARY JUDGMENT
Pursuant to FED. R. CIV. P 56(c), summary judgment shall be granted when there are no
genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of
law. To support denial of summary judgment, an issue of fact in dispute must be both genuine
and material, i.e., one upon which a reasonable fact finder could base a verdict for the
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non-moving party and one which is essential to establishing the claim. Anderson v. Liberty
Lobby, 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, the court
is not permitted to weigh the evidence or to make credibility determinations, but is limited to
deciding whether there are any disputed issues and, if there are, whether they are both genuine
and material. Id. The court‟s consideration of the facts must be in the light most favorable to the
party opposing summary judgment and all reasonable inferences from the facts must be drawn in
favor of that party as well. Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177,
180 (3d Cir. 1999), Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).
When the moving party has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In the language of
the Rule, the nonmoving party must come forward with “specific facts showing that there is a
genuine issue for trial.” FED. R. CIV. P 56(e). Further, the nonmoving party cannot rely on
unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a
summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The non-moving party must respond
Aby pointing to sufficient cognizable evidence to create material issues of fact concerning every
element as to which the non-moving party will bear the burden of proof at trial.@ Simpson v. Kay
Jewelers, Div. Of Sterling, Inc., 142 F. 3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v.
Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994)2.
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In her brief in opposition to the motion for summary judgment, Plaintiff incorrectly states the
standard for summary judgment by asserting the standard for a motion to dismiss for failure to
state a claim upon which relief may be granted under Rule 12(b)(6) of the Federal Rules of Civil
Procedure.
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IV.
DISCUSSION
A.
Timeliness of Title VII, ADEA and ADA Claims
SPI alleges that Plaintiff's claims are time-barred by the EEOC rule which provides that
claims under the ADEA, ADA and Title VII must be filed within ninety (90) days of receipt of
the EEOC‟s right-to-sue. See 29 U.S.C. § 626(e); 42 U.S.C. § 2000e-5(f)(1); Burgh v. Borough
Council of Montrose, 251 F.3d 465, 470 (3d Cir. 2001). Specifically, 42 U.S.C. § 2000e-5(f)(1)
provides that an agency “shall so notify the person aggrieved and within ninety days of such
notice a civil action may be brought.” Id. The Third Circuit has construed this provision to mean
that the time for filing a complaint begins to run once the plaintiff receives notice of the right to
sue. Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d 236, 238-239 (3d Cir. 1999); see also
Mosel v. Hills Department Store, Inc., 789 F.2d 251 (3d Cir. 1986). The EEOC right-to-sue letter
informs a claimant that he or she has ninety (90) days in which to file a complaint. Id. at 252253.
The ninety (90) day period for filing an action in federal district court is treated as a
statute of limitations. See Zipes v. Trans World Airways, Inc., 455 U.S. 385, 393 (1982) (likening
requirement of timely filing of administrative charge to statute of limitations); Figueroa v.
Buccaneer Hotel Inc., 188 F.3d 172, 176 (3d Cir. 1999) (same with respect to time for bringing
court action after receipt of right-to-sue letter). The Court of Appeals for the Third Circuit has
strictly construed the ninety (90) day period and has held that, in the absence of some equitable
basis for tolling, a civil suit filed even one day late is time-barred and may be dismissed. See
Burgh v. Borough Council of Montrose, 251 F.3d at 470; Figueroa v. Buccaneer Hotel Inc., 188
F.3d at 176.
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Equitable tolling is generally appropriate only when “the defendant has actively misled
the plaintiff; the plaintiff „in some extraordinary way‟ was prevented from asserting her rights; or
when the plaintiff timely asserted her rights in the wrong forum.” Seitzinger v. Reading Hosp.
and Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999) (citations omitted). Plaintiff bears the burden to
show that equitable tolling is warranted. Podobnik v. U.S. Postal Serv., 409 F.3d 584, 591 (3d
Cir. 2005).
Here, Mereletto filed her Charge of Discrimination with the EEOC in November of 2008.
Def. SUMF ¶ 79. The EEOC issued a dismissal and right-to-sue letter on February 27, 2009.
Def. SUMF ¶ 80. In accordance with Federal Rule of Civil Procedure 6(e), it is assumed that
Mereletto received the right-to-sue letter no later March 2, 2009. See Baldwin County Welcome
Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984) (the Court presumes that an EEOC right-to-sue
letter dated January 27, 1981 is received on January 30, 1981 in accordance with Fed.R.Civ.P.
6(e)). Rule 6(e) assumes that a party receives a document three days after it is mailed. See
Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d at 239. Ninety (90) days from March 2,
2009, fell on May 31, 2009, which was a Sunday, therefore Mereletto‟s was required to file her
complaint no later than Monday, June 1, 2009. Plaintiff filed her complaint on June 2, 2009.
Mereletto agrees that she was presumed to receive the right-to-sue letter on March 2,
2009, but then contends that ninety (90) days from such was Sunday, June 1, 2010. See
Plaintiff‟s Brief p. 3. Plaintiff is mistaken, June 1 did not fall on a Sunday in either 2010 or
2009.
Therefore it is clear that Mereletto filed her complaint outside the statutory ninety (90)
day period.
Further, Mereletto did not argue that there was an equitable basis for tolling the statutory
ninety (90) day period. Having failed to show that equitable tolling is warranted, and clearly
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having filed her complaint outside the statutory ninety (90) day period, Mereletto‟s claims under
the ADEA, ADA and Title VII must be dismissed. Notwithstanding this finding, the Court will
briefly address Plaintiff‟s substantive claims, which would have been dismissed in any event.
B.
Claims Under the ADA
The ADA makes it unlawful, inter alia, for an employer to discriminate “against a
qualified individual with a disability because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a). The plaintiff has the initial burden in an ADA matter of establishing a prima
facie case. Olson v. General Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996); Newman v.
GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir. 1995). In order to establish a prima facie case
of discrimination under the ADA1, plaintiff must demonstrate that: (1) she is a “qualified
individual with a disability” under the ADA; (2) she is otherwise qualified to perform the
essential functions of the job, with or without reasonable accommodations by the employer; and
(3) she has suffered an adverse employment decision as a result of discrimination. Gaul v. Lucent
Technologies, Inc., 134 F.3d 576, 580 (3d Cir. 1998)(citing Shiring v. Runyon, 90 F.3d 827, 831
(3d Cir. 1996)).
If the plaintiff meets this initial burden, the Court must apply the familiar burden-shifting
analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Establishment of a prima facie case raises a presumption of unlawful discrimination. St. Mary’s
1
The elements for a prima facie case of disability discrimination under the ADA are
essentially identical to those necessary to establish a prima facie case under the PHRA. See Kelly
v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996). Therefore, the Court‟s discussion regarding the
ADA claim applies equally to Paintiff‟s PHRA claim.
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Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). A defendant can overcome that presumption by
introducing admissible evidence of non-discriminatory reasons for its actions. St. Mary’s, 509
U.S. at 507 (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981)). The
defendant has only the burden of production, however; it need not prove that its stated reasons
“actually motivated its behavior . . . .” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).
If the defendant meets its burden, the plaintiff must then “show by a preponderance of the
evidence that the employer‟s explanation [for its actions] is pretextual (thus meeting the
plaintiff‟s burden of persuasion).” Id. Plaintiff does not have to prove that an “illegitimate”
motive was the sole reason for the employer‟s decision; she need only prove that it was a
determinative factor in her termination. Fuentes v. Perskie, 32 F.3d at 764 (citing Hazen Paper
Co. v. Biggins, 507 U.S. 604 (1993)).
To survive summary judgment at the third stage of the McDonnell Douglas analysis, the
plaintiff must present sufficient evidence to allow a factfinder to conclude that the employer‟s
non-discriminatory reason was a post hoc fabrication, or pretext. Id. “[T]he plaintiff must point
to some evidence, direct or circumstantial, from which a factfinder could reasonably either: (1)
disbelieve the employer‟s articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or determinative cause of the
employer's action.” Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644 (3d Cir.
1998).
[T]he plaintiff cannot simply show that the employer‟s decision
was wrong or mistaken . . . Rather, the non-moving plaintiff must
demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer‟s proffered
legitimate reasons for its action that a reasonable factfinder could
rationally find them “unworthy of credence” and hence infer “that
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the employer did not act for [the asserted] non-discriminatory
reasons.”
Fuentes v. Perskie, 32 F.3d at 765 (internal citations omitted).
The ADA defines disability as “(a) a physical or mental impairment that substantially
limits one or more major life activities; (2) a record of such impairment; or (c) being regarded as
having such an impairment.” 42 U.S.C. § 12102(2). Mereletto does not claim she is disabled, but
contends that SPI regarded or perceived her as having an alcohol related disability as she was
suspended for being under the influence of alcohol while at work. Under the ADA, a person is
regarded as impaired when she: “(1) [h]as a physical or mental impairment that does not
substantially limit major life activities but is treated by a covered entity as constituting such
limitation; (2) [h]as a physical or mental impairment that substantially limits major life activities
only as a result of the attitudes of others toward such impairment; or (3) [h]as none of the
impairments defined in paragraph (h)(1) or (2) of this section but is treated by a covered entity as
having a substantially limiting impairment.” 29 C.F.R. § 1630.2(l). Because Plaintiff agrees that
she has no impairment as defined by 29 C.F.R. § 1630.2(h), in order to succeed on her claim that
she is “regarded as” disabled, she must show that SPI treated her “as having a substantially
limiting impairment.” 29 C.F.R. § 1630.2(l)(3).
The analysis must focus not on Plaintiff and her actual abilities, “but rather on the
reactions and perceptions of the persons interacting or working with her.” Kelly v. Drexel Univ.,
94 F.3d 102, 109 (3d Cir. 1996). Therefore, Mereletto must demonstrate either: (1) that despite
having no impairment at all, SPI erroneously believed that she had an impairment that
substantially limited one or more major life activities; or (2) that she had a non-limiting
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impairment that SPI mistakenly believed substantially limited one or more major life activities.
See Eshelman v. Agere Sys., 554 F.3d 426, 434 (3d Cir. Pa. 2009)(citations omitted).
The relevant inquiry is whether SPI perceived Mereletto as disabled within the meaning
of the ADA, not whether she was actually disabled at the time she was terminated from her
employment. Id. Therefore, Mereletto must establish that SPI believed she was substantially
limited in a “major life activity3.” Sutton v. United Air Lines, Inc., 527 U.S. at 490-491. In this
instance, Mereletto has failed to direct this Court to sufficient evidence from which a jury could
reasonably conclude that SPI perceived her to be substantially limited in a major life activity.
Mereletto merely contends that she was suspended because she was regarded as being under the
influence of alcohol. Mereletto, however, acknowledges that SPI had an alcohol and drug policy
in place at the time. Moreover, Mereletto has made no argument and presents no evidence that
SPI regarded her as an alcoholic, or that SPI regarded her as limited in a major life activity
because of such alcoholism.
Mereletto also directs the Court to the haircutting incident which she contends made her
appear “unstable, erratic and to have a mental/perceived (sic) disability.” Mereletto however fails
to direct this Court to any evidence that SPI believed she was substantially limited one or more
major life activities. Clearly, Mereletto has failed to establish that she is a “qualified individual
with a disability” under the ADA. Even if this Court could find that Mereletto has established a
prima facie case in this instance, SPI has introduced admissible evidence of non-discriminatory
reasons for her termination. Though Mereletto concludes that SPI‟s reasons were pretextural, she
3
Major life activities, left undefined by the statute, have been defined by the Equal
Employment Opportunity Commission as “functions such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” Tice v.
Centre Area Trans. Auth., 247 F.3d 506, 512 (3d Cir. 2001) (quoting 29 C.F.R. § 1630(2)(i)).
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points to no evidence from which a factfinder could reasonably “either (1) disbelieve the
employer‟s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason
was more likely than not a motivating or determinative cause of the employer's action.” Simpson
v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d at 644. Having failed to establish a prima facie
case of discrimination under the ADA, judgment will be granted for SPI and against Mereletto
on her disability discrimination claim. Having found that she was neither disabled nor regarded
as disabled, Mereletto has no cause of action under the ADA‟s anti-retaliation provision.
C.
Claims of Sex and/or Age Based Hostile Work Environment
Hostile work environment harassment occurs when unwelcome discriminatory conduct,
in this case sexual or age-based, unreasonably interferes with a person‟s performance or creates
an intimidating, hostile, or offensive working environment. Meritor Savs. Bank FSB v. Vinson,
477 U.S. 57, 65 (1986) (quoting 29 C.F.R. § 1604.11(a)(3). In order to establish that she was
subjected to a hostile work environment in violation of either Title VII or the ADEA4, Mereletto
must establish: (1) that she suffered intentional discrimination because of her sex, (2) that the
discrimination was severe or pervasive, (3) that the discrimination detrimentally affected her; (4)
that the discrimination would detrimentally affect a reasonable person in like circumstances, and
(5) that a basis for employer liability is present. See Jensen v. Potter, 435 F.3d 444, 449 (3d Cir.
2006), overruled in part on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53 (2006). Finding that Plaintiff cannot satisfy either the first or second element necessary
to show hostile work environment, Mereletto‟s claims must fail.
4
The provisions of the PHRA are typically construed in the same manner as the corresponding
federal antidiscrimination provisions. Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996).
12
In explaining the first element, the United States Supreme Court has stated: “The critical
issue . . . is whether members of one [protected class] are exposed to disadvantageous terms or
conditions of employment to which members of the other [nonprotected class(es)] are not
exposed.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)). With
regard to Title VII, the Court further clarified that workplace harassment is not automatically sex
discrimination because “the words used have sexual content or connotations.” Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).
The comments related to age that Mereletto complains of are:
“[P]eouple told me I looked old with [my hair] up, wear it down.”
Plaintiff‟s Deposition (“Pl. Depo.”) p. 51;
“One of the girls . . . one time says (sic) get rid of the bun. Then it
was get rid of the pony tail. It makes you look trying to look
young, trying to look younger than your age. Pl. Depo. p. 65; and,
Two (2) addition references regarding Mereletto wearing her hair
in a bun and looking old, and wearing her hair down and trying to
look young. Pl. Depo. pp. 66 & 67.
The remaining conduct and/or comments which Mereletto contends were harassing are:
When she first started at SPI, no one was very friendly to her;
Some employees wore T-shirts that contained the following
verbage: “asshole university, smart ass university, bite me, eat me,
annoying the whole world one person at a time.”
A coworker, Rae Ann Poroda (“Poroda”), once stated “ I‟m going
home and get lucky with my husband tonight.”
Poroda talked about taking Vicodin at work and smoking a joint at
home.
Poroda often told dirty jokes and “made comments all the time.”
A coworker mentioned she was coming to work early so she could
get ahead in her work, and Poroda said “Oh, head you‟re coming in
to give somebody head.”
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Poroda once told Mereletto “Don‟t look at me. Don‟t ever look at
me.”5
Def. SUMF ¶¶ 67 & 68.
The above conduct and/or comments do not support a hostile work environment claim
because such bad behavior cannot be characterized as a “disadvantageous term or condition of
employment” as most of it was not directed specifically at Mereletto. Moreover, the alleged
harassing conduct lacks the requisite gender or age based discriminatory animus. Mereletto has
failed to establish the first element of a hostile work environment claim that she suffered
intentional discrimination because of her age or sex.
To determine whether the comments were severe or pervasive, a court must 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, 787-788 (1998).
The harassment “must be so severe or pervasive that it alters the conditions of the victim‟s
employment and creates an abusive environment.” Weston v. Pennsylvania, 251 F.3d 420, 426
(3d Cir. 2001). Here, the comments were infrequent, neither physically threatening nor
humiliating, and Mereletto has not shown how the comments affected her work performance. See
Racicot v. Wal-Mart Stores, Inc., 414 F.3d 675, 678 (7th Cir. 2005) (isolated comments about
Racicot‟s age such as she “shouldn't be working at [her] age” were not pervasive enough to
create an objectively hostile work environment). The Court finds that Mereletto has failed to
proffer sufficient evidence to establish that the alleged harassing conduct was severe or
5
This is the only comment that Mereletto complained of to SPI. She mentioned it to Meyer,
but when asked if she wanted him to speak to Poroda about the comment, Mereletto declined.
Def. SUMF ¶¶ 68-70.
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pervasive. Mereletto, therefore, has failed to present sufficient evidence to support her hostile
work environment claims, and the Court will enter summary judgment for SPI and against
Mereletto on such claims.
D.
Retaliation Under the PHRA, the ADEA and Title VII
Mereletto contends that she was retaliated against by her coworkers, in the form of
additional harassment, because she complained to Meyer about their harassing conduct towards
her. An employer may be liable for retaliatory harassment perpetrated by an employee‟s coworkers only if the prima facie case is satisfied and if there is a basis for employer liability for
the coworker‟s conduct. Jensen v. Potter, 435 F.3d at 449. “When coworkers are the perpetrators
[of the harassment], the plaintiff must prove employer liability using traditional agency
principles.” Id. at 452. There is a basis for liability where supervisors “knew or should have
known about the [co-worker] harassment, but failed to take prompt and adequate remedial
action” to stop the abuse. Id. at 453.
Here, Mereletto is unable to show a prima facie case of retaliation. To prevail, she must
direct this Court to evidence that there was a causal connection between her alleged participation
in protected activity, her complaints with regard to her coworkers conduct, and her allegations
regarding additional harassment. Mereletto has failed to identify the required evidence.
Moreover, Mereletto made only one complaint, and declined her supervisor‟s offer to speak to
the alleged harasser. Therefore, she is also unable to show that SPI had notice or constructive
notice of any harassing conduct, and that it failed to take remedial action. Mereletto‟s retaliation
claim fails as well.
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V.
CONCLUSION
Based upon the foregoing, SPI‟s motion for summary judgment shall be granted. An
appropriate order follows.
s/ David Stewart Cercone
David Stewart Cercone
United States District Judge
cc:
Richard P. Kimmins, Esquire
Robert B. Cottington, Esquire
Jessi D. Herman, Esquire
(Via CM/ECF Electronic Mail)
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