ASHTON v. SCI-FAYETTE et al

Filing 45

MEMORANDUM OPINION indicating that, for the reasons stated within, Defendants' Motion for Summary Judgment 29 will be granted and judgment will be entered in favor of Defendants with respect to the remaining retaliation claim set forth in the Complaint (Count II against SCI-Fayette and Count III against Trempus). An appropriate Order follows. Signed by Judge Nora Barry Fischer on 6/13/18. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CHRISTY ASHTON,

)
)
Plaintiff,
)
)
v.
)
)
SCI-FAYETTE, Pennsylvania Department )
of Corrections, and JOSEPH TREMPUS, )
)
Defendants.
)

Civil Action No. 16-1795
Judge Nora Barry Fischer

MEMORANDUM OPINION

I.

Introduction

Pending before the Court is a Motion for Summary Judgment filed by Defendants, SCI-Fayette,
Pennsylvania Department of Corrections (“SCI-Fayette”), Joseph Trempus (“Trempus”) and Brian
Coleman (“Coleman”)1 (collectively, “Defendants”). (Docket No. 29). For the reasons that
follow, Defendants’ Motion for Summary Judgment will be granted.
II.

Background
On December 1, 2016, Christy Ashton (“Plaintiff”) filed suit against her employer, SCI-

Fayette, along with Coleman, who was the former Superintendent at SCI-Fayette, and Trempus,
who was the Intelligence Captain at SCI-Fayette. Plaintiff originally asserted claims against all
Defendants for subjecting her to a sexually hostile work environment (Count I) and retaliating
against her (Count II) in violation of Title VII of the Civil Rights Act, as well as the same under

1

For reasons explained below, all claims against Coleman were dismissed pursuant to the Court’s Order of
June 1, 2018. (Docket No. 43). Nevertheless, Plaintiff’s allegations related to Coleman are discussed to provide
background and context as necessary.

1

the Pennsylvania Human Relations Act (“PHRA”) (Count III). Plaintiff also asserted an invasion
of privacy claim against Trempus (Count IV).
In response to Defendants’ Partial Motion to Dismiss for Failure to State a Claim, Plaintiff
withdrew the Title VII claims against Coleman and Trempus, the PHRA claim against SCI-Fayette
and the invasion of privacy claim against Trempus. (Docket No. 10). The Court entered an Order
on March 20, 2017, dismissing Counts I and II against Coleman and Trempus, dismissing Count
III against SCI-Fayette and dismissing Count IV in its entirety. (Docket No. 11).
On February 16, 2018, Defendants filed a Motion for Summary Judgment as to Plaintiff’s
remaining claims. (Docket No. 29). Plaintiff indicated in her Opposition Brief that she was
withdrawing her sexual harassment claim set forth in Counts I and III as to all Defendants. (Docket
No. 37 at 3). The Court entered an Order on April 17, 2018, dismissing Count I in its entirety and
dismissing Count III as it relates to sexual harassment. (Docket No. 40).
On May 31, 2018, the Court held oral argument on Defendants’ summary judgment
motion as to Plaintiff’s only remaining claim for retaliation (Count II against SCI-Fayette and
Count III against Coleman and Trempus). (Docket No. 42). At that time, Plaintiff’s counsel
confirmed that she had abandoned all claims asserted against Coleman. (See infra at 9, n.7). The
Court subsequently entered an order dismissing the retaliation claim against Coleman (Count III)
and dismissing Plaintiff’s complaint against him in its entirety with prejudice. (Docket No. 43).
Defendants have argued in briefing and at oral argument that summary judgment should
be entered in their favor because Plaintiff has failed to establish a prima facie case of retaliation.
(See Docket No. 30 at 13-16). Even if Plaintiff had done so, Defendants contend that they had
legitimate, non-retaliatory reasons for their employment actions, which Plaintiff has failed to rebut.
(See id. at 16-17). Plaintiff counters that she has met her prima facie burden, and Defendants’

2

stated reasons for their employment actions were nothing more than a pretext for retaliation. (See
Docket No. 37 at 3-7).
The parties indicated at oral argument that they did not wish to submit any supplemental
briefing on the issues raised by Defendants’ summary judgment motion. Accordingly, the matter
is now ripe for disposition.
III.

Relevant Facts2
In 2001, Plaintiff began working at the Department of Corrections (“DOC”) as a clerk

typist, a position she still holds at present. (Defs.’ Concise Statement of Undisputed Material Facts
(hereinafter, “Defs.’ SUMF”) (Docket No. 31) ¶ 1; Pl.’s Counter Statement of Material Facts
(hereinafter, “Pl.’s CSMF”) (Docket No. 36) ¶ 1). As relevant here, Plaintiff worked at SCIGreene from 2005 to 2009, and she has worked at SCI-Fayette from September 14, 2013, to the
present. (Defs.’ SUMF ¶ 2; Pl.’s CSMF ¶ 2). Coleman was the Deputy Superintendent at SCIGreene until March 2008, and then he became Superintendent at SCI-Fayette, where he remained
until July 2015. (Defs.’ SUMF ¶¶ 3, 4; Pl.’s CSMF ¶¶ 3, 4). Trempus was the Intelligence Captain
at SCI-Fayette in 2015, when the events at issue took place. (Defs.’ SUMF ¶ 6; Pl.’s CSMF ¶ 6).
Plaintiff alleges that Coleman made unwanted sexual advances toward her when she
worked at SCI-Greene years earlier, but she admits that she never complained about Coleman’s
conduct at any time. (Compl. (Docket No. 1) ¶ 13; Defs.’ SUMF ¶ 11; Pl.’s CSMF ¶ 11).
Nevertheless, after Plaintiff transferred to SCI-Fayette’s Education Department in 2013, Plaintiff
alleges that she was reprimanded for tardiness in retaliation for previously refusing Coleman’s
sexual advances. (Compl. ¶¶ 18, 20, 24). Plaintiff admits, however, that she was tardy on five

2

The factual background is derived from the undisputed evidence of record, and the disputed evidence is
viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986) (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”)

3

occasions, and there was no change in her employment as a result of the reprimand. (Defs.’ SUMF
¶¶ 27, 28, 30; Pl.’s CSMF ¶¶ 27, 28, 30).
Plaintiff further alleges that Corrections Officer (“CO”) Dan Gregg made unwanted sexual
advances toward her in January 2015. (Compl. ¶ 25). After Plaintiff declined CO Gregg’s
advances, she alleges that an unknown employee of SCI-Fayette called the wife of CO William
Zosky, claimed that Plaintiff was having a sexual relationship with CO Zosky, and provided the
personal telephone number for Plaintiff’s husband, Pennsylvania State Police (“PSP”) Trooper
Jason Ashton. (Compl. ¶¶ 26, 31; Defs’ SUMF ¶ 31; Pl.’s CSMF ¶ 31). Plaintiff asserts that her
husband’s personal telephone number was disclosed to the unknown employee in retaliation for
her previous refusal of Coleman’s sexual advances. (Compl. ¶ 34).
On February 4, 2015, Plaintiff submitted to Trempus a written statement alleging sexual
harassment against CO Gregg. (Defs.’ SUMF ¶ 37; Pl.’s CSMF ¶ 37). Plaintiff claims that she
subsequently was reassigned to the Medical Department, yet CO Gregg was not disciplined, and
Trempus did not investigate her complaint in retaliation for her previous refusal of Coleman’s
sexual advances, filing the complaint against CO Gregg and cooperating in the internal
investigation of another employee’s sexual harassment claim. (Compl. ¶¶ 38, 39, 42, 43).
Despite Plaintiff’s claim that no investigation occurred, Trempus took statements from her
and CO Gregg relative to the complaint. (Trempus Dep. (Docket No. 32-3, Ex. 4) at 58-60; Pl.’s
Stmt. of 2/4/15 (Docket No. 32-4, Ex. 9); CO Gregg’s Stmt. of 2/5/15 (Docket No. 32-4, Ex. 26)).
In addition, on February 12, 2015, Plaintiff met with Tina Walker, who was SCI-Fayette’s Field
Human Resources Officer. (Defs.’ SUMF ¶ 58; Pl.’s CSMF ¶ 58). Plaintiff stated that she did not
feel threatened or feel that she faced a hostile work environment, but Walker told Plaintiff to
contact her if that changed. (Defs.’ SUMF ¶¶ 59, 62; Pl.’s CSMF ¶¶ 59, 62). SCI-Fayette

4

subsequently turned over the investigation of Plaintiff’s complaint against CO Gregg to the DOC’s
Office of Special Investigations and Intelligence (“OSII”) as part of a larger ongoing investigation
of misconduct in the Education Department.3 (Defs.’ SUMF ¶ 64; Trempus Dep. at 60-61, 85).
OSII ultimately was unable to substantiate Plaintiff’s claim against CO Gregg. (Defs.’ SUMF ¶
70; Pl.’s CSMF ¶ 70).
After Plaintiff was transferred to the Medical Department,4 her supervisor removed the
telephone from her desk because she frequently used it for personal calls. (Defs.’ SUMF ¶¶ 80,
81; Pl.’s CSMF ¶ 80). Plaintiff disputes this, claiming that the telephone was removed in
retaliation for previously refusing Coleman’s sexual advances, filing the complaint against CO
Gregg and cooperating in the other internal investigation. (Compl. ¶¶ 44, 46). Nevertheless, there
was a telephone available for Plaintiff’s use outside of her office door, and her desk telephone was
subsequently restored. (Defs.’ SUMF ¶¶ 82, 85; Pl.’s CSMF ¶ 85).
On March 25, 2015, Plaintiff sent an email to Trempus, with a copy to her husband’s PSP
email address, complaining about the investigation of her claim against CO Gregg and asking her
husband to inquire at his barracks in case she wanted the PSP to get involved in the investigation.
(Defs.’ SUMF ¶¶ 89, 90, 93; Pl.’s CSMF ¶¶ 89, 90, 93). Trempus then called Trooper Ashton’s
PSP supervisor to tell him that the DOC was handling the investigation and that Trooper Ashton

3

Plaintiff states that she is without sufficient knowledge or information to respond to this statement, (Pl.’s
CSMF ¶ 64), yet she admits that she was interviewed on February 20, 2015, as part of the OSII investigation and
provided a written statement following the interview. (Defs.’ SUMF ¶ 65; Pl.’s CSMF ¶ 65).
4

Plaintiff was informed that the transfer was not punishment, but rather multiple people from the Education
Department were being transferred in connection with the ongoing investigation. (Defs.’ SUMF ¶ 76; Pl.’s CSMF ¶
76). Plaintiff’s subsequent request to be permanently reassigned to the Medical Department was approved. (Defs.’
SUMF ¶ 78; Pl.’s CSMF ¶ 78).

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should not be involved in it.5 (Defs.’ SUMF ¶ 96; Pl.’s CSMF ¶ 96). Although Trempus testified
that he called Trooper Ashton’s supervisor to prevent outside meddling in the OSII investigation,
(see Trempus Dep. at 128-134, 138), Plaintiff claims that he did so in retaliation for her filing the
complaint against CO Gregg. (Compl. ¶ 50).
In August 2016, Plaintiff applied for a mail inspector job at SCI-Fayette, but she was not
hired for it. (Defs.’ SUMF ¶¶ 114, 117; Pl.’s CSMF ¶ 114). Plaintiff claims that a less qualified
candidate was hired for the job, but she admits that her only prior experience was filling in at
another mailroom fifteen years earlier and her work as a clerk typist. (Compl. ¶ 52; Defs.’ SUMF
¶ 119; Pl.’s CSMF ¶ 119). Plaintiff contends that she was not awarded the position in retaliation
for previously refusing Coleman’s sexual advances, filing the complaint against CO Gregg and
cooperating in the other internal investigation. (Compl. ¶ 54).
Plaintiff is still employed as a clerk typist in SCI-Fayette’s Medical Department, her salary
and benefits have not been reduced, and she has not received any discipline other than the
reprimand for tardiness in 2013. (Defs.’ SUMF ¶¶ 121-123; Pl.’s CSMF ¶¶ 121-123). However,
Plaintiff alleges that her work performance is overly scrutinized and she is assigned more work
than other similarly situated employees in retaliation for previously refusing Coleman’s sexual
advances, filing the complaint against CO Gregg and cooperating in the other internal
investigation. (Compl. ¶¶ 53, 54).
IV.

Standard of Review
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. Fed. R. Civ. P. 56(a). To

5

After Trempus called Trooper Ashton’s supervisor, Plaintiff filed an EEO complaint against him for
mishandling her personal information, but the EEO Office determined the complaint was unsubstantiated. (Defs.’
SUMF ¶¶ 100, 108; Pl.’s CSMF ¶¶ 100, 108).

6

withstand 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 non-moving party and one
which is essential to establishing the claim. Anderson, 477 U.S. at 248. When considering a
summary judgment motion, the court may not weigh the evidence or make credibility
determinations, but rather is limited to deciding whether there are any disputed issues that are both
genuine and material. Id.
If the moving party carries its burden under Rule 56, the non-movant must identify
“specific facts which demonstrate that there exists a genuine issue for trial.” Orson, Inc. v.
Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)).

Further, the non-moving party cannot rely on unsupported assertions,

conclusory allegations or mere suspicions in attempting to survive summary judgment. Williams
v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Celotex, 477 U.S. at 325). The
non-movant must respond “by pointing to sufficient cognizable evidence to create material issues
of fact concerning every element as to which the nonmoving 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)
(citation omitted).
V.

Analysis of Plaintiff’s Retaliation Claim
Title VII prohibits employers from retaliating against employees for complaining about

harassment or discrimination in the work place. See 42 U.S.C. § 2000e-3(a). Absent direct
evidence of retaliation, as here, Title VII retaliation claims are analyzed according to the burdenshifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 804 (1973):
(1) first, the plaintiff must establish a prima facie case of retaliation; (2) then, the burden shifts to
the employer to advance a legitimate, non-retaliatory reason for the adverse employment action;

7

(3) and finally, the plaintiff is afforded an opportunity to show that the employer’s proffered reason
was a pretext for retaliation.6 Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006).
A. Plaintiff Has Not Established a Prima Facie Case of Retaliation
To state a prima facie case of retaliation, a plaintiff must establish that: “(1) she engaged
in activity protected by Title VII; (2) the employer took an adverse employment action against her;
and (3) there was a causal connection between her participation in the protected activity and the
adverse employment action.” Moore, 461 F.3d at 340-41.
1. Retaliation Allegedly Resulting From Plaintiff’s Refusal of
Coleman’s Sexual Advances
Plaintiff claims that Coleman, and sometimes Trempus, retaliated against her after she
transferred to SCI-Fayette because she refused Coleman’s sexual advances years earlier when she
was employed at SCI-Greene. According to Plaintiff, the retaliation consisted of a reprimand for
tardiness, disclosure of her husband’s personal telephone number, failure to investigate her sexual
harassment complaint against CO Gregg, failure to discipline CO Gregg, removal of her desk
telephone, failure to hire her for the mail inspector job, the assignment of extra work and more
scrutiny of her job performance. (Compl. ¶¶ 24, 34, 42, 43, 46, 54). Defendants argue that Plaintiff
has failed to establish a prima facie case of retaliation allegedly resulting from her refusal of
Coleman’s sexual advances because she did not engage in any activity protected by Title VII. (See
Docket No. 30 at 13-14). Defendants are correct.
For purposes of the first element of a prima facie case, protected activity “includes not only
an employee’s filing of formal charges of discrimination against an employer but also informal
protests of discriminatory employment practices, including making complaints to management.”

6

Retaliation claims arising under Title VII and the PHRA are analyzed coextensively. Atkinson v. LaFayette
Coll., 460 F.3d 447, 454 n.6 (3d Cir. 2006).

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Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 193 (3d Cir. 2015) (internal quotation marks
and citation omitted). Here, Plaintiff did not engage in any protected activity relative to Coleman’s
alleged sexual advances because she did not make any formal or informal complaint about his
conduct. For this reason, summary judgment will be entered in favor of Defendants as to Plaintiff’s
retaliation claim to the extent it is based on Coleman’s alleged conduct at SCI-Greene.7
2. Retaliation Allegedly Resulting From Plaintiff’s Complaint Against
CO Gregg
Plaintiff also alleges that she was retaliated against for filing the complaint against CO
Gregg and for cooperating in the internal investigation of another employee’s sexual harassment
claim.8 Plaintiff alleges that the retaliation consisted of Trempus’ failure to investigate her
complaint against CO Gregg, SCI-Fayette’s failure to discipline CO Gregg, her reassignment to
the Medical Department, Trempus’ contact with her husband’s PSP supervisor, removal of her
desk telephone, failure to hire her for the mail inspector job, the assignment of extra work and
more scrutiny of her job performance.9 (See Compl. ¶¶ 38, 42, 43, 46, 50, 54, 60). Again,

7

In opposing summary judgment, Plaintiff did not address, much less support, her claim that rejecting
Coleman’s sexual advances years earlier led to various forms of retaliation when she transferred to SCI-Fayette. (See
Docket No. 37 at 3-7). Consequently, Defendants argued that Plaintiff abandoned her retaliation claim against
Coleman. (See Docket No. 38 at 1). Defendants also argued that Plaintiff abandoned her claim that the alleged failure
to investigate the complaint against CO Gregg was retaliatory. (Id. at 2). Plaintiff responded that she “has withdrawn
her claims under Title VII and the PHRA against Defendant Coleman, [but] she has not abandoned her claim that
Defendants Trempus and SCI-Fayette failed to investigate her complaint against [CO] Gregg,” and that “should be
understood to be part of [her] retaliation claims under both Title VII and the PHRA.” (Docket No. 41 at 1, 2). As
stated, Plaintiff’s counsel confirmed at oral argument that she had abandoned all claims against Coleman, and the
complaint against him was dismissed in its entirety with prejudice. (Docket No. 43). To the extent that Plaintiff bases
her retaliation claim against Trempus and SCI-Fayette on the alleged failure to investigate her complaint against CO
Gregg, she is unable to do so because the failure to investigate a complaint does not constitute an adverse employment
action. See infra at 11.
8

Though Plaintiff alleges retaliation for filing the complaint against CO Gregg and cooperating in the internal
investigation of another employee’s sexual harassment claim, (see Compl. ¶¶ 42, 43, 46, 54), she only argues in her
Opposition Brief that she allegedly suffered retaliation after filing the complaint. (See Docket No. 37 at 4). In view
of Plaintiff’s failure to develop her claim that she was retaliated against for cooperating in the other internal
investigation, the Court concludes that she has abandoned that aspect of her retaliation claim.
9

Plaintiff also alleges in her Complaint that she was verbally harassed by co-workers regarding her sexual
harassment claim against CO Gregg, but she did not allege that conduct was retaliatory. (See Compl. ¶ 47). However,

9

Defendants argue that Plaintiff has failed to establish a prima facie case of retaliation. (See Docket
No. 30 at 13-16). Even if Plaintiff had done so, Defendants argue that they had legitimate, nonretaliatory reasons for the employment actions, which Plaintiff has not shown were a pretext for
retaliation. (See id. at 16-17).
a. Protected Activity
Defendants concede that Plaintiff’s complaint against CO Gregg qualifies as protected
activity, but argue that she has not satisfied the second and third elements of a prima facie case.
(See Docket No. 30 at 14-16).
b. Adverse Employment Action
With regard to the second element, a plaintiff claiming retaliation must show that “a
reasonable employee would have found the challenged action materially adverse [meaning] it well
might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks and
citation omitted). The “material adversity” standard requires courts to “separate significant from
trivial harms.” Id. The Third Circuit Court of Appeals has described an adverse employment
action “as an action by an employer that is serious and tangible enough to alter an employee's
compensation, terms, conditions, or privileges of employment.” Jones v. Se. Pa. Transp. Auth.,
796 F.3d 323, 326 (3d Cir. 2015) (citation omitted). With the possible exception of not hiring
Plaintiff for the mail inspector job and the alleged assignment of additional work, none of the other
conduct claimed by Plaintiff constitutes an adverse employment action.10

in later opposing summary judgment, Plaintiff asserted that the verbal harassment was retaliatory. (See Docket No.
37 at 4).
10
Even if Plaintiff had alleged in her Complaint that the verbal harassment by co-workers was retaliatory, see
supra n. 9, such conduct does not constitute an adverse employment action. See Holt v. Pennsylvania, 683 F. App’x
151, 158 (3d Cir. 2017) (derogatory comments, standing alone, do not rise to level of adverse employment action);

10

Courts have held that the failure to investigate a plaintiff’s complaint does not constitute
an adverse employment action. See, e.g., Fincher v. Depository Trust & Clearing Corp., 604 F.3d
712, 721 (2d Cir. 2010) (“[A]n employer’s failure to investigate a complaint of discrimination
cannot be considered an adverse employment action taken in retaliation for filing the same
discrimination complaint.”); Entrekin v. City of Panama City Fl., 376 F. App’x 987, 995 (11th Cir.
2010) (failure to investigate the plaintiff’s complaint against another employee was not an adverse
employment action because it was not taken against the plaintiff herself); Hare v. Potter, 220 F.
App’x 120, 134 (3d Cir. 2007) (alleged deficient investigation does not constitute an adverse
employment action). Similarly, failure to take action against other employees does not constitute
an adverse employment action. See Entrekin, 376 F. App’x at 995. In view of this authority,
Plaintiff’s claims regarding Trempus’ alleged failure to investigate her complaint against CO
Gregg or the failure to discipline him do not constitute adverse employment actions.
In addition, Plaintiff’s reassignment to the Medical Department does not qualify as an
adverse employment action, particularly because she was informed that the move was not
punishment and she subsequently requested to be permanently reassigned to that department. See
supra at 5, n.4; Stewart v. Union County Bd. of Educ., 655 F. App’x 151, 157 (3d Cir. 2016)
(lateral transfer generally does not constitute adverse employment action). Further, Trempus’
contact with Plaintiff’s husband’s PSP supervisor was not materially adverse. Plaintiff’s own
request that her husband inquire at his PSP barracks precipitated Trempus’ call to her husband’s
supervisor to advise that the DOC was handling the investigation. (Defs.’ SUMF ¶¶ 89, 90, 93,
96; Pl.’s CSMF ¶¶ 89, 90, 93, 96). Likewise, Plaintiff’s claim regarding the removal of her desk
telephone is a trivial harm that would not dissuade a reasonable employee from making a
discrimination charge. Finally, Plaintiff’s claim that she was subject to more scrutiny does not

11

constitute an adverse employment action. See Martinelli v. Penn Millers Ins. Co., 269 F. App’x
226, 230 (3d Cir. 2008) (supervisor’s scrutiny of employee’s work does not support a retaliation
claim); McKinnon v. Gonzales, 642 F. Supp. 2d 410, 428 (D.N.J. 2009) (“[C]ourts have
consistently found that an employee’s perception that he has been micro-managed, criticized, or
scrutinized by his supervisor fails to rise to the level of material adversity.”).
The only conduct claimed by Plaintiff that could constitute an adverse employment action
is not hiring her for the mail inspector job and the alleged assignment of extra work. See Barnes
v. Nationwide Mut. Ins. Co., 598 F. App’x 86, 90 (3d Cir. 2015) (citing 42 U.S.C. § 2000e-2(a)(1)
(failure to hire and failure to promote constitute adverse employment actions); Homel v.
Centennial Sch. Dist., 836 F. Supp. 2d 304, 324 (E.D. Pa. 2011) (assignment of additional,
burdensome responsibilities is an adverse employment action, particularly when not accompanied
by additional pay). The record indicates that the mail inspector job was filled by two qualified
applicants, though Plaintiff disputes this as to one of the applicants.11 (Defs.’ SUMF ¶ 117; Pl.’s
Dep. (Docket No. 32-1, Ex. 1) at 199-200). Plaintiff also disputes Defendants’ position that she
has not been given more work than other similarly situated employees. (Defs.’ SUMF ¶ 125; Pl.’s
Dep. at 202-204). Viewing the record in the light most favorable to Plaintiff, the failure to hire
her for the mail inspector job and the alleged assignment of additional work could constitute
adverse employment actions for purposes of the second element of a prima facie case of retaliation.
c. Causal Connection

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Plaintiff has offered nothing more than her own opinion that she was more qualified, which is insufficient to
withstand summary judgment. See Knox v. Fifth Third Bancorp, No. 2:12-CV-539, 2014 WL 359818, at *12 (W.D.
Pa. Feb. 3, 2014) (holding that the plaintiff's opinions about whether she was more qualified than other employees
who received promotions “are an insufficient means to overcome summary judgment on this claim”). A comparison
between Plaintiff's qualifications and those of the successful applicants could only help her prove her retaliation claim
if the differences between them “were so favorable to the plaintiff that there can be no dispute among reasonable
persons of impartial judgment that the plaintiff was clearly better qualified for the position at issue.” Hobbs v. City
of Chicago, 573 F.3d 454, 462 (7th Cir. 2009) (citation omitted). Plaintiff has not made such a showing here.

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As to the third element of a prima facie case, a plaintiff must show that there was a causal
connection between her participation in the protected activity and the adverse employment action.
See Moore, 461 F.3d at 340-41. To do this, she must produce evidence “sufficient to raise the
inference that her protected activity was the likely reason for the adverse [employment] action.”12
Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 259 (3d Cir. 2017) (citation omitted).
A plaintiff may rely on “a broad array of evidence” to show the requisite causal link. LeBoon v.
Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007) (quoting Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 284 (3d Cir. 2000)). Such evidence may include a temporal
proximity between the protected activity and the adverse action, intervening antagonistic behavior
on the part of the employer, inconsistencies in the employer’s articulated reasons for taking the
adverse action or any other evidence that supports an inference of retaliatory animus. See id. at
232–33.
Plaintiff has not produced sufficient evidence from which a reasonable factfinder could
conclude that her complaint against CO Gregg was the likely reason that she was not hired for the
mail inspector job or why she was assigned more work. First, there is not an unusually suggestive
temporal proximity between Plaintiff’s complaint on February 4, 2015, and the decision not to hire
her for the mail inspector job 18 months later in August 2016. See Williams v. Philadelphia Hous.
Auth. Police Dep’t, 380 F.3d 751, 760-61 (3d Cir. 2004) (finding no causal connection where over
two months elapsed between protected activity and adverse employment action). It is unclear

12

Citing Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013), Defendants argue that Plaintiff “has not
met the stringent, but-for causation element of her prima facie case.” (Docket No. 30 at 15). Contrary to Defendants’
position, Plaintiff’s causation burden is not quite so demanding at the prima facie stage. As the Third Circuit Court
of Appeals has clarified, Nassar held that a retaliation plaintiff’s ultimate burden is to prove that retaliatory animus
was the “but-for” cause of the adverse employment action, but at the prima facie stage, the plaintiff has a lesser burden
and must prove causation by producing evidence “sufficient to raise the inference that her protected activity was the
likely reason for the adverse [employment] action.” Carvalho-Grevious, 851 F.3d at 258, 259. As explained herein,
Plaintiff has not established the causation element of a prima facie case under this standard.

13

when Plaintiff contends that she was assigned more work, but even if that began when she was
transferred out of the Education Department on February 26, 2015, (see Supervisory File dated
2/26/15 (Docket No. 32-4, Ex. 14)), she has not identified intervening antagonistic behavior by
Defendants to support an inference of retaliatory animus.

Plaintiff generally argues that

Defendants “began their course of retaliatory conduct almost immediately […] after” she filed her
complaint and it continued “up to and including actions that occurred in September of 2016.”
(Docket No. 37 at 6). Based on this statement, Plaintiff suggests that the employment actions she
claims were adverse show Defendants’ antagonistic behavior. As previously discussed, the bulk
of the conduct about which Plaintiff complains are not adverse employment actions and Plaintiff
has offered no other evidence of antagonism. For these reasons, Plaintiff has not met her prima
facie burden.
Because Plaintiff has not met her prima facie burden, the Court would grant Defendants’
Motion for Summary Judgment on that basis alone. As discussed below, however, even if Plaintiff
had made a prima facie case of retaliation, the Court still would grant Defendants’ Motion because
they have met their relatively light burden of offering legitimate, non-retaliatory reasons for the
employment actions at issue, which Plaintiff has failed to rebut.
B. Defendants Have Offered Legitimate, Non-Retaliatory Reasons For The
Employment Actions At Issue
At the second step of McDonnell Douglas, an employer’s burden of production is relatively
light and is satisfied by introducing evidence which, taken as true, would permit the conclusion
that there was a legitimate, non-retaliatory reason for the unfavorable employment decision.
Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). Here, Plaintiff concedes that Defendants
“have stated legitimate, nondiscriminatory reasons for the adverse employment actions suffered

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by [her].”13 (Docket No. 37 at 7).
C. Plaintiff Has Failed to Demonstrate That Defendants’ Legitimate Reasons
Were a Pretext For Retaliation
Given that Defendants have met their burden at step 2 of McDonnell Douglas, the burden
shifts back to Plaintiff to show that the stated reasons were a pretext for retaliation. To defeat
summary judgment at the pretext stage, a plaintiff must point to some evidence from which a
factfinder could reasonably either: (1) disbelieve the employer’s articulated legitimate reason; or
(2) believe that an invidious discriminatory reason was more likely than not a motivating or
determinative cause of the employer’s action. Fuentes, 32 F.3d at 764 (citations omitted).
Under the first prong of Fuentes, a plaintiff must present evidence demonstrating “such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the proffered
reasons “that a reasonable factfinder could rationally find them unworthy of credence,” and infer
that the defendant did not act for the stated non-retaliatory reasons. Fuentes, 32 F.3d at 765. Here,
Plaintiff argues that Defendants’ legitimate reasons are “unworthy of belief,” (see Docket No. 37
at 7), but she has not explained why that is so or produced evidence from which a reasonable
factfinder could disbelieve the reasons offered by Defendants. To the extent Plaintiff disagrees
with the actions taken by Defendants, simply arguing that the employer was wrong is not enough
to survive summary judgment. See Fuentes, 32 F.3d at 765 (a plaintiff cannot simply show that
the employer’s decision was wrong or mistaken).
A plaintiff still might demonstrate pretext under the second prong of Fuentes if she can

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Defendants articulated the following reasons: (1) Plaintiff received a verbal reprimand for tardiness because
she was late five times in one month; (2) Plaintiff was transferred to the Medical Department in connection with the
investigation of the Education Department, as were other employees; (3) Plaintiff’s telephone was removed because
she abused her phone privileges; (4) Trempus called her husband’s PSP supervisor because Plaintiff and her husband
were attempting to interfere in the DOC investigation; (5) Plaintiff was not hired for the mail inspector position
because other more qualified candidates were hired; and (6) Plaintiff was not required to perform any out of class
duties in the Medical Department. (Docket No. 30 at 16-17).

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demonstrate that retaliation “was more likely than not a motivating or determinative cause of the
adverse employment action.” Fuentes, 32 F.3d at 762. Pretext can be shown this way by producing
evidence that: 1) the employer previously has retaliated against the plaintiff; 2) the employer has
retaliated against other persons; or 3) the employer has treated more favorably similarly situated
employees who did not engage in the protected activity at issue. See Simpson, 142 F.3d at 645
(citing Fuentes, 32 F.3d at 765); Caplan v. L Brands/Victoria’s Secret Stores, LLC, 210 F. Supp.
3d 744, 765 (W.D. Pa. 2016) (citing Simpson, 142 F.3d at 644-45).
Plaintiff has failed to establish pretext under the second prong of Fuentes. Plaintiff has not
argued or presented evidence that Defendants previously retaliated against her or others, nor has
she shown that Defendants treated more favorably similarly situated employees who did not make
a claim of sexual harassment. Although Plaintiff asserts that “she has advanced evidence that she
was treated less favorably” after she filed the complaint against CO Gregg, (see Docket No. 37 at
7), she has not identified any similarly situated comparator who did not make a sexual harassment
claim, but who received more favorable treatment. Plaintiff’s bare assertion that she was treated
less favorably does not suffice to establish pretext.
In sum, Plaintiff has not shown pretext under either prong of Fuentes. Therefore, Plaintiff’s
retaliation claim fails as a matter of law, and summary judgment will be entered in favor of
Defendants.

VI.

Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment will be granted and

judgment will be entered in favor of Defendants with respect to the remaining retaliation claim set
forth in the Complaint (Count II against SCI-Fayette and Count III against Trempus). An
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appropriate Order follows.

s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge

Dated: June 13, 2018
cc/ecf: All counsel of record

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