Opinion
Civil Action 19-660
02-10-2022
MIRIAM OSORIO, Plaintiff, v. TCV COMMUNITY SERVICES, RICHARD WHITE, DAWN BERARDO, ASHLEY LEONARD BRINKMAN, and CAPITAL HEALTHCARE SOLUTIONS, INC., Defendants.
J. Nicholas Ranjan District Judge
REPORT AND RECOMMENDATION RE: ECF NOS. 145 AND 152
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Miriam Osorio (“Osorio”) brings this pro se action asserting various claims under Pennsylvania state law, Title VII of the Civil Rights Act of 1964, and the Fair Labor Standards Act (“FLSA”) arising out of her loss of work for Capital Healthcare Solutions, Inc. (“Capital”) at TCV Community Services (“TCV”). ECF No. 39.
Presently before the Court is a Motion for Summary Judgment filed by Defendants TCV, Richard White (“White”), Dawn Berardo (“Berardo”), and Ashley Leonard Brinkman (“Brinkman”) (collectively, the “TCV Defendants”). ECF No. 145. Also before the Court is a Motion for Summary Judgment filed by Defendant Capital. ECF No. 152. For the reasons below, it is respectfully recommended that the Motions for Summary Judgment be granted.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background
a. The parties
Capital is a healthcare staffing agency located in Irwin, Pennsylvania, which contracts with various client organizations to provide staffing. ECF No. 150 ¶ 1. Capital actively recruits and screens healthcare professionals to work at the facilities operated by its clients. Id. ¶ 2.
Plaintiff did not file responses to Defendants' concise statements of material fact under Local Civil Rule 56(C). Therefore, the facts set forth in Defendants' concise statements of material fact are deemed admitted. See, e.g., Gulley v. Haymaker, No. 06-131J, 2009 WL 763549, at *2 (W.D. Pa. March 23, 2009).
TCV provides drug and alcohol recovery services, behavioral health services, and other services to communities in Pennsylvania to help individuals sustain their recoveries. Id. During the relevant time, Defendants White, Berardo and Brinkman were TCV supervisors or directors. Id. ¶ 31, 33; ECF No. 147-2 at 20.
Osorio is a Black, African-born healthcare worker, who was formerly employed by Capital. Osorio worked shifts at TCV and multiple other companies' sites. ECF No. 39 ¶ 75; ECF No. 150 ¶ 16, 24; ECF No. 154-5 at 14.
In addition to TCV, Osorio testified that she primarily worked at Emmaus House, Southwinds, and TSI facilities in the Pittsburgh area. ECF No. 154-5 at 14.
b. Staffing Agreement between Capital and TCV
Under the Medical Staffing Service Agreement (“Staffing Agreement”), TCV contracted with Capital to locate and provide qualified registered nurses, licensed practical nurses, and nursing assistants for its facilities (“Consultants”). ECF No. 150 ¶ 11.
Under the Staffing Agreement, Capital assumed all payroll, benefit and tax responsibilities and maintained insurance for the Consultants. ECF No. 147 ¶ 31. The Consultants' pay rates were agreed upon in the Staffing Agreement. ECF No. 149-3 at 4. Capital billed TCV weekly for the total hours a Consultant worked. Id. at 3.
TCV was responsible for the Consultants' “orientation, work environment and supervision during the assignment.” Id. at 2. TCV was required to immediately notify Capital if a Consultant's performance was unsatisfactory so that the parties may respond. ECF No. 150 ¶ 12. The Staffing Agreement also provided that TCV was ultimately responsible for determining an individual's suitability for assignment at its facilities. Id. ¶ 13.
All Consultants remained employees of Capital “unless otherwise agreed to in writing by the parties.” ECF No. 147 ¶ 31. All scheduling occurred “only through Capital.” Id.
c. Osorio's employment with Capital
Capital hired Osorio as a direct care professional in March 2017. ECF No. 150 ¶ 16. Osorio signed an employment agreement with Capital, outlining her duties, compensation and other aspects of her employment. ECF No. 147 ¶ 29. She received a call-off policy and disciplinary procedure from Capital. Id. As a Capital employee, she had to abide by Capital's policies and procedures. ECF No. 150 ¶ 17. She received training from Capital about employee protections from discrimination and harassment. Id. ¶ 19.
d. Osorio's assignment to TCV
Beginning in May 2017, Capital assigned Osorio to work for multiple clients, including TCV. Id. ¶ 24. As a direct care professional at TCV, Osorio assisted clients with mental and physical disabilities in group home settings with daily needs, such as cooking, cleaning, administering medications, and providing transportation to appointments. Id. ¶ 25; ECF No. 147 ¶ 26.
Toward the end of 2018, Osorio's work at TCV primarily occurred at two of TCV's facilities: (1) the IDD facility, also known as “Breezewood, ” an adult-training facility servicing individuals with intellectual and developmental disabilities; and (2) the DAS facility, a diversion and acute stabilization program providing individuals with short-term residency and mental health treatment. ECF No. 150 ¶ 29.
In a footnote in its Concise Statement of Material Facts, Capital states that the DAS facility is colloquially called the “Breezewood” site. ECF No. 150 at 5 n. 1. But the record suggests that the “Breezewood” facility is the IDD facility. For example, Osorio testified that the “IDD director, ” Berardo, was the person in charge of the Breezewood site. ECF No. 147-2 at 20. Osorio also testified that the IDD Residential Supervisor, White, is a supervisor at Breezewood, and he responded to the January 19, 2019 incident discussed below at the Breezewood facility. Id. at 12. Based on the record, it also appears that Osorio's TCV shifts were cancelled at the DAS facility after those shifts had been cancelled at Breezewood-suggesting these are not the same facilities. See, e.g., id. at 14; ECF No.150 ¶ 33; see also ECF No. 154-1 ¶¶ 25-27.
TCV coordinated Osorio's work schedule solely through Capital. ECF No. 147 ¶ 27. Her work schedule at TCV fluctuated, largely based on the clients' needs and Osorio's availability. ECF No. 150 ¶ 28. Osorio submitted her hourly time sheets to a supervisor at her TCV site location, and those time sheets were then forwarded to Capital for processing and payment. ECF No. 147 ¶ 28. Any employment issues were to be handled by Capital's Human Resources department. Id. Capital could discipline Osorio for any employment-related issues. Id.
e. Incident at TCV's Breezewood site on January 19, 2019
Osorio's claims primarily arise out of an incident that occurred at the TCV Breezewood site on January 19, 2019. Osorio described this incident by email to the Capital employee in charge of her scheduling, Melissa “Missy” Annesi (“Annesi”), on January 23, 2019. ECF No. 149-1 at 2; ECF No. 146-1 at 10. Osorio wrote that she was scheduled to work at the TCV Breezewood site on January 19, 2019. ECF No. 149-1 at 2. Britney, a Capital employee, informed her of this assignment by text. Id.
Osorio's email to Annesi, as summarized below, is included at ECF No. 149-1 at 2-3.
Upon arriving for this shift, Edna Burgess (“Burgess”), a Capital employee, and Nicola Dempsey (“Dempsey”), a TCV employee, told Osorio they already had sufficient coverage. Osorio responded, “OK.” Osorio then told Dempsey that Britney had asked her to work the January 19, 2019 evening shift, but she would leave after going downstairs to make a copy of the schedule and to drop off one of her time sheets.
Osorio calls this individual “Edna B.” in her report to Annesi. White identifies her full name as Edna Burgess in a January 20, 2019 email to Annesi. ECF No. 154-7.
Burgess then told Osorio that White, Residential Supervisor of TCV's IDD facility, was on the phone with her. She repeatedly yelled at Osorio that Osorio had to leave, and that White said she had to leave now. When Osorio said that she wanted to make a copy of the time sheet, Burgess yelled that White said he “will take care of it and fax it when he comes in.” Burgess refused to let Osorio speak with White on the phone, telling her that White did not want to speak with her. At one point, Burgess “grabbed the schedule aggressively out of the copier and dangled it aggressively in [Osorio's] face then she pushed [Osorio].”
In her deposition, however, Osorio testified that Burgess did not engage in any type of physical contact. ECF No. 150 ¶ 74; ECF No. 154-5 at 39-40.
Burgess continued to yell at Osorio as she walked upstairs to retrieve her cell phone, telling Osorio that she needed to leave so that Burgess could attend to a pot on the stove. Osorio repeatedly asked Burgess not to yell at her like “a child or a dog, ” and she told Burgess not to touch her. Burgess ended the call, and she told Osorio that White was on his way.
Osorio waited for White in the parking lot. When he arrived, she asked him to explain the situation. White invited her back inside to discuss. Osorio noted she was scheduled to work according to the schedule on the wall, and he did not notify her the shift was cancelled.
White responded that Dempsey or Burgess are in charge if he is not there. He informed Osorio that the hard-copy schedule is not immediately updated; that he sent three cancellation emails to Capital for her; and “it cannot be everyone else's fault but yours.”
Osorio told White that Capital never informed her that her shift was cancelled. She also told him that he could have conveyed this information to her over the phone, and she did not appreciate that he had another employee yell at her instead. White responded, “Oh! well. That's how you feel, ” shrugged his shoulders, and said, “I thank you and goodbye.”
f. White's email to Annesi about Osorio on January 20, 2019
On January 20, 2019, White also wrote to Annesi about Osorio. ECF No. 154-7. White stated that Osorio was asked to leave the TCV Breezewood site the day before because there were surplus staff, and she was not on the schedule. Id. at 3. After she refused to leave, White came to the site and told her in person that she “was cancelled from Breezewood weeks ago, ” and she must leave the premises. Id.
White also wrote that he spoke with “Ms. Denise weeks ago” and asked for Osorio to “be replaced” for the “safety and peace of the house (consumers and staff)” for these reasons:
1) Miriam is mean toward the clients[.]
2) Miriam is mean toward other staff[.]
3) Miriam has been taking food and other products from the home (cereal, baby wipes, packs of meat).
4) Miriam has been late at least 15 minutes for every documented shift.
5) Miriam was off of the schedule and still showing up to work and sending others who were scheduled home.Id.
g. Cancellation of Osorio's TCV shifts
On January 24, 2019, Brinkman, the Director of Residential Services of TCV's DAS facility, advised Capital via email that “[d]ue to issues at other sites within our agency, ” Capital should remove Osorio from the schedule for the DAS facility. ECF No. 150 ¶ 33; ECF No. 154-8 at 2.
Based on TCV's requests, Capital promptly removed Osorio from the TCV schedule beginning on January 25, 2019. ECF No. 150 ¶ 34; ECF No. 43 ¶ 97.
h. Osorio's complaints regarding January 19, 2019 incident
Before her shifts at TCV were cancelled, Osorio claims that she made several complaints or reports relative to the January 19, 2019 incident. During the incident, she called Capital's on-call manager, Denise Wright (“Wright”), to report the ongoing situation. ECF No. 150 ¶ 39; ECF No. 154-5 at 43. Wright informed her that it was “okay for [her] to leave the site and go.” ECF No. 154-5 at 43.
As discussed, Osorio explained the January 19, 2019 incident to Annesi by email on January 23, 2019. ECF No. 150 ¶ 42. She also testified that during a phone call on January 21, 2019, she “provided [Missy Annesi] with her grievance about how [she] felt [she] was being discriminated against.” Id. ¶ 40. Osorio testified that Annesi told her that she would “speak with HR.” Id. ¶ 41.
On January 25, 2019, Osorio emailed Justine Poorbaugh (“Poorbaugh”), Human Resources Generalist for Capital. Id. ¶ 43; ECF No. 155-1 at 2. Osorio wrote that she filed a complaint with Berardo, TCV's IDD Director, on January 24, 2019 over “how [she] was treated” at the TCV Breezewood site. ECF No. 155-1 at 2. She was “filing a grievance about how the supervisor [White] handled the situation.” Id. Osorio claimed that TCV retaliated against her by cancelling all of her DAS shifts the next day, and she said that she did not want to work for TCV anymore. Id.
Osorio testified that she met with Berardo in person and “filed a grievance” with her. ECF No. 147-2 at 12. During her deposition, Osorio stated that she handed a copy of a written complaint to Berardo. ECF No. 154-5 at 56. However, this document does not appear to be included in the record before the Court.
In her email to Poorbaugh, Osorio explained that she discussed the scheduling confusion with Berado and Amber, a TCV supervisor, and she received conflicting information about when her TCV Breezewood shifts were originally cancelled. Id. Osorio told them “[i]t's on TCV supervisors to also follow up with a call to both agencies after sending an email for coverage or cancellations just to ensure that there are no mixups and also to confirm exactly how many staff are being sent from both agencies and crosscheck with their site schedule.” Id. According to Osorio, Berardo “nodded in agreement” and made a note. Id.
i. Disciplinary action
Capital did not terminate Osorio's employment as a result of the TCV complaints. ECF No. 150 ¶ 36. Instead, it issued Osorio a verbal warning on January 25, 2019, which it contemporaneously documented in writing: “Miriam was DNR'd from residential homes and all other Facilities. [Capital] [e]ducated Miriam on professional conduct [and] [e]xplained the progressive discipline procedure.” Id. ¶ 37; ECF No. 154-9 at 2.
Before imposing any disciplinary action, Capital's Human Resources department investigated the client complaints regarding Osorio's conduct, including the requests by TCV that Osorio no longer be assigned to TCV's facilities. ECF No. 150 ¶ 35; ECF No. 154-1 ¶ 29.
j. Alleged comparators
Osorio claims that she was treated differently because of her national origin. She testified that she believes she was treated differently than “Emerson, ” a White-American TCV employee, who allegedly violated TCV policy by permitting law enforcement officers to enter TCV's DAS facility in order to execute an arrest of a client for murder. ECF No. 147 ¶ 33; ECF No. 146-1 at 21. Osorio does not know whether Emerson was disciplined for this conduct. ECF No. 147 ¶ 35. Emerson was supervised by Christine Darios from the DAS facility when she allowed the police to enter the facility, while Osorio's supervisor during the January 19, 2019 incident at TCV's Breezewood facility was White. Id. ¶ 32; ECF No. 146-1 at 22.
Osorio also testified that she believes Defendants treated her differently than White, who is a Black American and “was born here.” ECF No. 146-1 at 22. She testified that Defendants improperly accepted White's word over hers without investigating because he is a supervisor and does not speak with an accent. Id.
k. EEOC Charge
Osorio filed Charge No. 533-2019-00544 against TCV with the Equal Employment Opportunity Commission (“EEOC”) (“EEOC Charge”). ECF No. 150 ¶ 50; ECF No. 167. The EEOC closed its file on April 19, 2019, explaining that Osorio failed to state a claim under any statutes enforced by the EEOC. ECF No. 155-2 at 2. It notified Osorio of her right to sue within 90 days. Id.
Osorio admitted she has not produced any administrative charge directed to or naming Capital as part of this litigation. ECF No. 150 ¶ 53. She has not produced any administrative charge in this litigation, although the charges were requested in discovery. Id.
At the Court's request, however, TCV produced the EEOC Charge filed against TCV. ECF No. 167.
Counsel for Capital served a Freedom of Information Act (“FOIA”) request on the EEOC to obtain any documents relating to the EEOC Charge. Id. ¶ 54. The EEOC denied Capital's request to disclose this information because “the requestor [Capital] is not a party to a charge of discrimination described.” Id. ¶ 55.
2. Pleadings
Osorio initiated this lawsuit by filing a Motion for Leave to Proceed in forma pauperis (“IFP Motion”) on June 6, 2019. ECF No. 1. The Court granted the IFP Motion on July 2, 2019, and Osorio's original Complaint was filed on the same date. ECF Nos. 2 and 3.
After Defendants moved to dismiss the Complaint, Osorio requested leave to amend her pleadings. The Court granted Osorio's request to amend, and the operative Amended Complaint was filed on January 3, 2020, rendering Defendants' motions to dismiss moot. ECF Nos. 36 and 39.
In the operative Amended Complaint, Osorio brings nine claims: Count I: Defamation of Character; Count II: Retaliation under the Fair Labor Standards Act (“FLSA”); Count III: Retaliation under Title VII of the Civil Rights Act; Count IV: National Origin discrimination under Title VII of the Civil Rights Act; Count V: Wrongful Termination; Count VI: Harassment that Resulted in Tangible Employment Action; Count VII: Harassment that Created Hostile Work Environment; Count VIII: Vicarious Employer Liability for Unlawful Harassment by Supervisors: and Count IX: Intentional Infliction of Emotional Distress (“IIED”). ECF No. 39.
Capital and the TCV Defendants filed Answers to Osorio's Amended Complaint. ECF Nos. 42 and 43. In their Answer, the TCV Defendants asserted cross-claims for contribution and indemnity against Capital. ECF No. 42 at 28. Capital answered the cross-claims. ECF No. 45. Capital and the TCV Defendants later consented to dismiss the TCV Defendants' cross-claims against Capital without prejudice. ECF Nos. 59 and 60.
3. Discovery and Sanctions Order
The Court held an initial case management conference with the parties on February 25, 2020. ECF No. 48. Osorio was instructed to produce any documents supporting her claims, including any documents regarding any charge with any administrative agency, as well as any documents regarding her damages and mitigation of the same. The Court set a fact discovery deadline of August 31, 2020. ECF No. 49.
In June 2020, Defendants served written discovery requests on Osorio. ECF No. 64-1; ECF No. 61-2. Capital also noticed Osorio's deposition to take place on July 31, 2020 at the law offices of Buchanan, Ingersoll and Rooney P.C. in Pittsburgh, Pennsylvania. After Osorio failed to provide timely discovery responses or consent to any of the proposed dates for her deposition, Defendants moved to compel this discovery. ECF Nos. 61 and 64.
The Court conducted a telephone conference with the parties on August 13, 2020, during which it coordinated with the parties to schedule Osorio's deposition and emphasized to Osorio that she must appear for her deposition and produce full and complete discovery responses before the deposition. The Court then entered Orders granting Defendants' Motions to Compel, requiring Osorio to produce discovery responses by August 26, 2020 and to appear for her video deposition on August 29, 2020. ECF Nos. 71 and 72. The Court notified Osorio that her failure to comply could result in sanctions. ECF No. 71 ¶ 6; ECF No. 72 ¶ 74.
Osorio failed to provide full and complete responses to Defendants' discovery requests by August 26, 2020, as ordered. As a result, Defendants filed Motions for Sanctions under Federal Rule of Civil Procedure 37 on August 27 and 28, 2020. ECF Nos. 82 and 83.
On August 28, 2020, the Court held another telephone conference with the parties. ECF No. 92. The Court reiterated to Osorio that she was required to produce full and complete discovery responses, including relevant documents, and to appear for a deposition. Id. On September 3, 2020, the Court entered Orders granting in part and denying part Defendants' Motions for Sanctions, in which the Court stated:
Also, Plaintiff is again ordered to provide full and complete discovery responses to Defendants' discovery requests by September 8, 2020. If Plaintiff fails to do so, [Defendants] may file a renewed motion for sanctions against Plaintiff, including the dismissal of this action.ECF Nos. 86 and 87.
Yet again, Osorio failed to produce supplemental discovery responses or documents by September 8, 2020, as ordered by the Court. Based on Osorio's failure to comply, Defendants filed renewed Motions for Sanctions, ECF Nos. 97 and 98, on September 9, 2020, to which Osorio filed Responses on September 16, 2020, stating that she had emergencies and responses would be provided the following week. ECF Nos. 100 and 101.
The Court issued another Order, again requiring Osorio to provide full and complete discovery responses by noon on September 22, 2020. ECF No. 102. The Court noted that her failure to do so “will result in the imposition of sanctions, up to and including the dismissal of this case.” Id.
On September 22, 2020, Defendants submitted a Joint Notice to the Court of Osorio's Failure to Comply with Court Orders. ECF No. 103. In this Notice, Defendants conveyed that Osorio did not provide full and complete discovery responses by September 22, 2020, as required. She also had not returned certain information that was necessary for her deposition to proceed as scheduled on September 26, 2020. Id.
Upon review of Defendants' Renewed Motions for Sanctions, the Court found that Osorio's “repeated and willful violation of this Court's discovery Orders” warranted imposing sanctions. ECF No. 104 at 8. In its Order of September 22, 2020 (“Sanctions Order”), the Court imposed these sanctions:
1. Plaintiff is prohibited from opposing Capital and the TCV Defendants' defenses including, but not limited to, Plaintiff's failure to exhaust administrative remedies, Plaintiff's failure to mitigate her damages, Plaintiff's continued
employment by Plaintiff as a bar to her wrongful termination claim, Capital's reliance upon TCV's representations in connection with their request to remove Plaintiff from their schedule, and after acquired evidence related to Plaintiff's conduct.
2. Plaintiff is prohibited from introducing any testimonial evidence regarding her claims that was not already included in her Initial Disclosures and responses to Interrogatories, including evidence related to her discrimination, harassment and retaliation claims (Counts III, IV, VI, VII, and VIII), as well as her defamation claim (Count I), and her claim for emotional distress (Count IX); and she is prohibited from introducing any documentary evidence that has not already been produced in the litigation.
3. Capital and the TCV Defendants are granted an adverse inference for documents requested but not produced including those related to her discrimination, harassment, and retaliation claims (Counts III, IV, VI, VII, and VIII), as well as her defamation claim (Count I), and her claim for emotional distress (Count IX).
4. Plaintiff is notified that if she fails complete the COVID questionnaires required for the deposition site, if she fails to appear for her deposition on September 26, 2020 at the time and location scheduled, or she fails to cooperate in answering questions at her deposition, this action will be dismissed.ECF No. 104 at 8-9 (emphasis in original).
Osorio objected to the Sanctions Order at ECF No. 104. United States District Judge J. Nicholas Ranjan overruled Osorio's objections. ECF No. 117.
In her Briefs in Opposition to the pending Motions for Summary Judgment, Osorio argues that the Court should disregard the Sanctions Order because she later submitted evidence that she was ill. ECF No. 162 at 3; ECF No. 163 at 6. Because this issue has already been decided, Osorio's objections were overruled, and she does not bring this request as a separate motion for reconsideration, the Court does not consider this issue. ECF Nos. 104 and 117. The Court notes, however, that the medical records Osorio provided only related to treatment that occurred after the discovery violations occurred and the Sanctions Order was entered. ECF No. 129 ¶ 3 (noting that Osorio submitted discharge summaries for four emergency room visits on September 23, 2020, October 2, 2020, October 13, 2020 and November 3, 2020).
On September 25, 2020, Osorio reported that she was ill and experiencing COVID-19 symptoms. ECF No. 107. Her September 26, 2020 deposition and a later rescheduled October 17, 2020 deposition did not go forward because of her illness.
Upon conducting a telephone conference with the parties on January 27, 2021, the Court stayed this action until May 10, 2021 until Osorio could safely attend her deposition in person, considering Osorio's reported medical issues and concerns regarding COVID-19 exposure. ECF No. 136. Osorio ultimately was deposed on June 2, 2021. ECF No. 138 ¶ 3.
All parties agreed to the stay until Osorio could safely attend the in-person deposition. ECF No. 136.
4. Motions for Summary Judgment
The TCV Defendants filed their Motion for Summary Judgment, Brief in Support, Appendix and Concise Statement of Material Facts on July 14, 2021. ECF Nos. 145, 146 and 147.
Capital filed its Motion for Summary Judgment, Brief in Support, Appendix and Concise Statement of Material Facts on July 14 and 15, 2021. ECF Nos. 150, 151, 152 and 153. Consistent with this Court's Order, Capital and the TCV Defendants filed certain exhibits to their Appendix under seal. ECF Nos. 144, 149, 154 and 155.
Osorio filed Briefs in Opposition to the Motions for Summary Judgment on September 16, 2021. ECF Nos. 162 and 163.
Osorio filed a second Response to Capital's Motion for Summary Judgment at ECF No. 161. However, this filing is missing pages and appears to have been filed in error.
The TCV Defendants and Capital filed Reply Briefs on September 29, 2021. ECF Nos. 164 and 165.
The Motions for Summary Judgment are now ripe for consideration.
B. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if 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.” Fed.R.Civ.P. 56(a). An issue of material fact is in genuine dispute if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (“A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof”). Thus, summary judgment is warranted where, “after adequate time for discovery and upon motion . . . a party . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
The moving party bears the initial burden of demonstrating to the Court that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 322; Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). “[W]hen 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 . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
In deciding a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party and must draw all reasonable inferences, and resolve all doubts in favor of the nonmoving party. Matreale v. N.J. Dep't of Mil. & Veterans Affairs, 487 F.3d 150, 152 (3d Cir. 2007); Woodside v. Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001).
C. DISCUSSION
1. Defamation (Count I)
a. Claim against the TCV Defendants
In support of their Motion for Summary Judgment, the TCV Defendants argue that Osorio's claim arises solely out of White's statements in his January 20, 2019 email to Annesi that Osorio was mean to clients and stole items from the TCV site. ECF No. 146 at 4. The TCV Defendants argue that White's statement that Osorio was “mean” was “rhetorical hyperbole” and not defamatory. Id. at 7. As to White's statement that Osorio stole items, the TCV Defendants argue that White's statement was protected by conditional privilege because TCV, Capital, and the public all have an interest in stopping such behavior, and TCV was contractually obligated to notify Capital of any performance issues. Id. at 7-9. The TCV Defendants also point out they claimed in their affirmative defenses that the TCV Defendants' statements were not defamatory and subject to privilege. Id. at 9. Under the Sanctions Order, they argue, Osorio cannot rebut this defense. Id.
In response, Osorio argues that White's statements, particularly his claim that she stole, are not hyperbole. ECF No. 163 at 7-8. She also argues there is no evidence that Annesi was, in fact, the only recipient of White's statement, and that the Court should investigate this issue in support of her claim. Id. at 9. Osorio contends that White's statement is not privileged because the public was not affected by her alleged actions, she was personally harmed by losing shifts and income, and White's statements were false. Id.
Under Pennsylvania law, “a defamatory statement is one that ‘tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'” Resnick v. Manfredy, 52 F.Supp.2d 462, 470 (E.D. Pa. 1999) (quoting U.S. Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 922 (3d Cir. 1990)).
To establish a defamation claim, plaintiff must prove the following when the issue is properly raised:
(1) the defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.42 Pa. C.S. § 8343.
In this case, the TCV Defendants argue that White's alleged defamatory statement to Annesi is subject to conditional privilege. Conditional privilege is an affirmative defense to defamation. Martin v. Finley, 349 F.Supp.3d 391, 428 (M.D. Pa. 2018) (citing Pa. C.S.A. § 8343(b)(2)). Privilege attaches to a communication that is “‘made on a proper occasion, from a proper motive, and in a proper manner,' whenever ‘circumstances are such as to lead any one of several persons having a common interest in a particular subject matter to correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know.'” Tucker v. Merck & Co., Inc., 102 Fed.Appx. 247, 253-54 (3d Cir. 2004) (quoting Maier v. Maretti, 671 A.2d 701, 706 (Pa. Super. Ct. 1995)) (internal citations omitted). In the employment context, as here, this privilege “generally applies to communications amongst management regarding an employee's discharge and discipline, such as communications regarding an employee's job performance or misconduct.” Eure v. Friends' Cent. Sch. Corp., No. 18-1891, 2019 WL 3573489, at *12 (E.D. Pa. Aug. 5, 2019) (citing Maier, 671 A.2d at 706).
“If a defendant carries its burden to show that a communication is conditionally privileged, the burden shifts to the plaintiff to establish that the defendant abused its conditional privilege.” Wilson v. Am. Gen. Fin. Inc., 807 F.Supp.2d 291, 299 (W.D. Pa. 2011).
Abuse of a conditional privilege is indicated when the publication is actuated by malice or negligence, is made for a purpose other than that for which the privilege is given, or to [a] person not reasonably believed to be necessary for the accomplishment of the purpose of the privilege, or includes defamatory matter not reasonably believed to be necessary for the accomplishment of the purpose.Simms v. Exeter Architectural Prods., Inc., 916 F.Supp. 432, 436 (M.D. Pa. 1996) (quoting Beckman v. Dunn, 419 A.2d 582, 588 (1980) (citations and footnotes omitted)). “Although it is a question of law as to whether or not the conditional privilege applies, it is a question of fact as to whether or not that privilege has been abused.” Id.
Upon review, the Court should find that White's statements are conditionally privileged. Based on the record, Capital had an interest in learning about Osorio's work performance and the reasons for White's request that she be removed from the TCV Breezewood site. As the TCV Defendants point out, TCV was contractually obligated to notify Capital if it found Osorio's work performance to be unsatisfactory, and Capital was responsible for any disciplinary action. Further, under the Sanctions Order, Osorio is prohibited from rebutting this affirmative defense. As a result, the Court should grant the TCV Defendants' Motion for Summary Judgment relative to Count I.
Even if Osorio was not prohibited from rebutting this affirmative defense, the Court finds that she has not established that TCV abused its conditional privilege.
b. Claim against Capital
In support of its Motion for Summary Judgment, Capital argues that summary judgment should be granted as to Count I because Osorio does not identify any purportedly defamatory statements attributable to Capital. ECF No. 153 at 26-27. Instead, it argues, Osorio's claim is limited to statements made by White, a TCV employee. Id. Capital asserts that simply including White's email in Osorio's personnel file is not a “publication, ” and any conversations between TCV and Capital are conditionally privileged. Id. at 27-28. Capital also argues that the law does not require it to “clear her name.” Id. at 28.
In response, Osorio argues that Capital published White's defamatory statements by forwarding his email to others, including it in her personnel file, and discussing it with TCV and members of Capital's Human Resources team. ECF No. 162 at 16-17. She also argues that Capital is vicariously liable because Capital employees did not sufficiently investigate or clear her name, causing her to be removed from TCV shifts. Id. at 17.
Upon review, Capital's Motion for Summary Judgment should be granted as to Count I. As Capital points out, Osorio relies on White's statement to Annesi in support of her defamation claim. She does not specifically identify any purportedly defamatory statement that is attributable to Capital.
Although Osorio claims that Capital employees also “published” White's statement by discussing it internally and placing it in her personnel file, she does not refer the Court to any such statements in the record. Even assuming such communications occurred, as discussed, communications about an employee's job performance or misconduct are generally subject to conditional privilege. See Eure, 2019 WL 3573489, at *12; see also Maier, 671 A.2d at 706 (“As a supervisor, appellee correctly believed the branch manager had a right to know about incidents involving appellant”); Rutherfoord v. Presbyterian Univ. Hosp., 612 A.2d 500, 507 (Pa. Super. Ct. 1992) (communications among management-level persons about an employee's job performance were necessary to operate the business and were therefore privileged).
Finally, to the extent Osorio claims that Capital is liable for failing to “clear her name, ” she cites no legal authority requiring Capital to do so. Therefore, Capital's Motion for Summary Judgment should be granted as to Count I.
2. Retaliation Claim under FLSA (Count II)
In Count II, Osorio claims that Defendants retaliated against her in violation of the FLSA. Specifically, she asserts that Defendants retaliated against her by terminating her shifts at TCV and issuing a disciplinary warning after she complained about the January 19, 2019 incident. ECF No. 39 ¶¶ 71-73.
Defendants argue that summary judgment should be granted because Osorio cannot establish a prima facie FLSA retaliation claim. In support of its Motion for Summary Judgment, Capital argues that Osorio's claim fails because she did not engage in any protected activity under the FLSA. ECF No. 153 at 29-30. Of particular significance, she did not file any claim or complaint about illegal pay practices under the FLSA, she did not testify and was not about to testify in any pay practice related proceeding, and she did not serve and was not about to serve on an industry committee. Id. at 30.
The TCV Defendants also argue that Osorio cannot establish her prima facie case on her FLSA retaliation claim because there is no causal connection between Osorio's complaints about the January 19, 2019 incident and TCV's decision to terminate her shifts. ECF No. 146 at 12-13. To the contrary, they argue, TCV previously notified Capital of concerns over Osorio's conduct and requested her shifts to be cancelled. Id. at 14-15. In addition, the TCV Defendants argue that TCV cannot be held liable because it was not Osorio's “employer” under the FLSA.
In response, Osorio argues that she filed several complaints each with Berardo, Annesi and Justine Poorbaugh on January 23, 2019. ECF No. 162 at 18. The next day, Annesi called Osorio to inform her that her shifts at TCV had been cancelled. Id. She argues that these events satisfy the requirements under 29 U.S.C. § 215(a)(3) to support a retaliation claim under the FLSA. Id.
The FLSA is a remedial statute, which was designed “to give specific minimum protections to individual workers and to ensure that each employee covered by the Act would receive ‘[a] fair day's pay for a fair day's work' and would be protected from ‘the evil of overwork as well as underpay.'” De Asencio v. Tyson Foods, Inc., 500 F.3d 361, 373 (3d Cir. 2007); Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981) (quoting Overnight Motor Trans. Co. v. Missel, 361 U.S. 572, 578 (1942)) (emphases omitted). To that end, the Act “establishes federal minimum-wage, maximum-hour, and overtime guarantees that cannot be modified by contract.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 69 (2012).
Under the FLSA's anti-retaliation provision, it is unlawful for “any person” to “discharge or in any manner discriminate against any employee because [that] employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter . . .” 29 U.S.C. §215(a)(3). This provision is to be interpreted liberally, and it protects a wide range of actions. Cohen v. BH Media Grp., Inc., 419 F.Supp.3d 831 (D.N.J. 2019) (citing Brock v. Richardson, 812 F.2d 121, 123 (3d Cir. 1987)).
Courts analyze unlawful retaliation claims under the FLSA using the familiar burdenshifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Cononie v. Allegheny Gen. Hosp., 29 Fed.Appx. 94, 95 (3d Cir. 2012). Under this framework, plaintiff must first establish a prima facie case of retaliation. McDonnell Douglas, 411 U.S. at 802. To establish a prima facie case of retaliation under the FLSA, plaintiff must show that: (1) she engaged in a protected activity; (2) she suffered an adverse employment decision; and (3) the adverse decision was causally related to the protected activity. Cohen, 419 F.Supp.3d at 850.
Upon review, Osorio fails to establish the first prong of a prima facie case because she did not engage in protected conduct under the FLSA. A complaint is protected activity when it “is sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the [FLSA] and a call for their protection.” Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14 (2011).
In this case, there is no evidence whatsoever that Osorio's complained about any illegal pay practices subject to the FLSA. To the contrary, she argues here that her complaints related to “the harassment she suffered at the hands of Defendant Richard White and Defendant Capital's employee Edna B.” ECF No. 163 at 14. Because Osorio cannot establish the first element of a prima facie retaliation claim under the FLSA, Defendants' Motions for Summary Judgment should be granted as to Count II.
Osorio also does not include any allegations related to illegal pay practices in her Amended Complaint. ECF No. 39.
3. Title VII Claims against Capital (Counts III, IV, VI, VII and VIII)
Osorio also brings claims under Title VI against Capital in Counts III, IV, VI, VII and VIII. In support of its Motion for Summary Judgment, Capital argues that Osorio's Title VII claims against it should be dismissed because Osorio did not exhaust her administrative remedies with respect to Capital by filing a charge with any applicable government agency. ECF No. 153 at 14-16. Although Osorio filed the EEOC Charge against TCV, Capital argues that there is no evidence this charge was made against Capital. Capital points out that Osorio never produced the EEOC Charge or related documents, as requested in discovery, and the EEOC has confirmed that Capital was not a party to this charge in response to Capital's FOIA request. Id.; ECF No. 155-3 ¶¶ 2-6.
The Court separately addresses Count V, which Osorio also claims to bring under Title VII in her Response to Capital's Motion for Summary Judgment. ECF No. 162 at 5.
In response, Osorio argues that she did submit the EEOC Charge, and she claims that the EEOC's FOIA response only shows that Capital's counsel, Gretchen Root, was not a party to her charge. ECF No. 162 at 9-10.
Upon review, Capital's Motion for Summary Judgment should be granted on this basis. “Before filing a suit under Title VII, a plaintiff must exhaust [her] administrative remedies by filing a timely discrimination charge with the EEOC.” DeLa Cruz v. Piccari Press, 521 F.Supp.2d 424, 431 (E.D. Pa. 2007). After a plaintiff files a charge with the EEOC and receives a right-to-sue letter, her “ensuing suit [in district court] is limited to claims that are within the scope of the initial administrative charge.” Barzanty v. Verizon Pa., Inc., 361 Fed.Appx. 411, 414 (3d Cir. 2010).
In this case, there is no evidence that Osorio exhausted her administrative remedies relative to Capital by filing a discrimination charge with the EEOC. Although Osorio did file an EEOC Charge, Capital was not a party to this charge. Therefore, in light of Osorio's failure to exhaust her administrative remedies as to Capital, Capital's Motion for Summary Judgment should be granted as to Counts III, IV, VI, VII and VIII.
Capital is also entitled to an adverse inference, and Osorio cannot rebut this defense under the Sanctions Order.
Based on the finding that Osorio did not exhaust her administrative remedies for her Title VII claims against Capital, it is not necessary for the Court to consider Capital's remaining arguments in support of summary judgment on Osorio's Title VII claims.
4. Title VII Claims against the TCV Defendants (Counts III, IV, VI, VII and VIII)
Osorio also brings Counts III, VI, VI, VII and VIII against the TCV Defendants under Title VII. “Title VII prohibits an employer from discriminating based on an employee's race, color, religion, sex, or national origin, 42 U.S.C. § 2000e-2(a), and from retaliating against an employee for complaining about, or reporting, discrimination or retaliation, id. §2000e-3(a).” Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 256 (3d Cir. 2017).
To establish a claim under Title VII, Osorio must establish that she was an employee of the TCV Defendants, and not solely an employee of Capital. Shah v. Bank of Am., 346 Fed.Appx. 831, 833 (3d Cir. 2009) (employment relationship required to bring Title VII action). In support of their Motion for Summary Judgment, the TCV Defendants argue that Osorio cannot satisfy this requirement. They argue that Capital, not TCV, was Osorio's employer. ECF No. 146 at 12-14.
Under Title VII, courts in the Third Circuit rely on common law principles of agency to determine whether an employment relationship exists. Faush v. Tuesday Morning, Inc., 808 F.3d 208, 213 (3d Cir. 2015). The United States Court of Appeals for the Third Circuit has instructed courts to apply the common-law test set forth in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992). Id.
The Darden inquiry focuses on the alleged employer's control of over the means and manner of work. Id. at 214 (citing Darden, 503 U.S. at 323). Courts consider the following, nonexhaustive list of factors:
the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the [alleged employer] has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the [alleged employer]; whether the [alleged employer] is in business; the provision of employee benefits; and the tax treatment of the hired party.Id. (citing Darden, 503 U.S. at 323-24).
In conducting this analysis, the Third Circuit has generally focused on “which entity paid [the employees'] salaries, hired and fired them, and had control over their daily employment activities.” Id. (quoting Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 119 (3d Cir. 2013)). “The parties' beliefs and expectations regarding the relationship between the plaintiff and the defendant are also relevant.” Myers v. Garfield & Johnson Enterprises, Inc., 679 F.Supp.2d 598, 608 (E.D. Pa. 2010) (citing Graves v. Lowery, 117 F.3d 723, 727-29 (3d Cir. 1997)). Because there is no “shorthand formula or magic phrase that can be applied to find the answer, ” however, “all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.” Faush, 808 F.3d at 213 (quoting Darden, 502 U.S. at 324) (internal quotations omitted).
The relevant inquiry is not which entity is plaintiff's employer; rather, two entities may be “co-employers” or “joint employers” for purposes of Title VII. Id. at 215 (citing Graves v. Lowery, 117 F.3d 723, 727 (3d Cir. 1997)). As the Third Circuit noted, “at common law, one could be a ‘dual servant acting for two masters simultaneously' or a ‘borrowed servant' who by virtue of being ‘directed or permitted by his master to perform services for another may become the servant of such other.'” Id. (quoting Williamson v. Consol Rail Corp., 926 F.2d 1344, 1349 (3d Cir. 1991)).
“‘When a legal standard requires the balancing of multiple factors, as it does in this case, summary judgment may still be appropriate even if not all of the factors favor one party,' so long as the evidence ‘so favors' the movant that ‘no reasonable juror' could render a verdict against it.” Faush, 808 F.3d 208 (quoting Enterprise, 683 F.3d at 471).
a. Claims against Berardo, Brinkman and White
Upon review, the Court should grant summary judgment on this basis as to Osorio's Title VII claims against individual defendants Berardo, Brinkman and White. These individuals were TCV supervisors or directors, and Osorio does not claim they employed her. Moreover, “Congress did not intend to hold individual employees liable under Title VII.” Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1078 (3d Cir. 1996); see also Hamilton v. Genesis Healthcare Corp., No. 17-4777, 2018 WL 741724, at *4 (E.D. Pa. Feb. 7, 2018) (“As a result, the individually-named defendants cannot be held liable for violations of Title VII . . . .”); Gretzula v. Camden Cty. Tech Sch. Bd. of Educ., 965 F.Supp.2d 478, 486 (D.N.J. 2013) (“Title VII provides for liability against employers, not supervisors.”). As a result, Counts III, IV, VI, VII and VIII should be dismissed against Berardo, Brinkman and White.
b. Claims against TCV
Upon review, the Court considers the applicable factors to relative to whether TCV was Osorio's employer for purposes of Title VII. The Court addresses below each the primary areas of inquiry-which entity paid Osorio's salary, had the authority to hire or fire her, and had control over her daily employment activities.
(1) Compensation
On balance, the factors relating to compensation weigh slightly against Osorio. TCV shared some, indirect responsibility for Osorio's wages, given that it verified and paid Capital directly for the number of hours that Osorio worked at its facilities. See, e.g., Faush, 808 F.3d at 215-16 (finding that retail store indirectly paid temporary employees' wages where it paid an agreed-upon hourly rate to a staffing company for the number of hours worked). However, Capital retained significant control over her compensation, because it directly paid Osorio and assumed responsibility for payroll, benefits, insurance and tax responsibilities for Osorio's work at TCV and other organizations' facilities.
In Faush, the Third Circuit considered whether a temporary employee who was hired by a staffing agency to work at retail store Tuesday morning was an employee of Tuesday Morning. Faush, 808 F.3d at 210. Tuesday Morning paid the staffing agency, Labor Ready, for each hour the individual temporary employees worked at an hourly rate. Tuesday Morning also paid any overtime charges and changes in rates stemming from Labor Ready's costs from wages, taxes and insurance, and it assumed responsibility for ensuring that the temporary employees' pay complied with applicable wage laws. Id. at 212, 216. The Third Circuit found that Tuesday Morning's payments were “virtually indistinguishable from direct employee compensation.” Id. In this case, while TCV similarly paid Capital based on the number of hours that Osorio worked, there is no evidence it also assumed responsibility for increases in Capital's costs for wages, taxes, and insurance, or that it took responsibility for whether Osorio's compensation complied with applicable laws. Thus, while the evidence suggests that TCV assumed a degree of indirect control over Osorio's wages, this control did not rise to the same level the Third Circuit considered in Faush.
(2) Hiring and firing
The factors relating to hiring and firing also weigh against Osorio. Capital screened and hired Osorio. She signed an employment agreement with Capital, not TCV. Capital also retained exclusive authority to fire Osorio. Capital assigned Osorio to work shifts at TCV and facilities of other Capital clients. TCV had the ability to accept whether Osorio worked at its sites and it could, and did, demand a replacement worker. Although TCV refused to allow Osorio to return to TCV facilities, its decision did not affect Osorio's continued employment with Capital. Osorio continued to receive assignments at other, non-TCV worksites through Capital. See, e.g., Scott v. UPS Chain Solutions, 523 Fed.Appx. 911, 913 (3d Cir. 2013) (plaintiff's continued employment with staffing agency after his assignment at UPS was terminated cut against finding that UPS was his employer).
(3) Daily employment activities
Finally, the Court considers TCV's degree of control over Osorio's daily employment activities. Osorio sometimes worked at TCV sites as well as the facilities of other Capital clients. Under the Staffing Agreement between Capital and TCV, TCV agreed to be responsible for Osorio's “orientation, work environment and supervision” for her work at TCV sites. ECF No. 149-3 at 2. But the record does not reflect to what extent, if any, TCV directed Osorio's daily activities or uniform, and whether it provided any training or work-related tools and materials.
On the other hand, all scheduling of Osorio's work occurred through Capital. Osorio chose whether to take TCV shifts that were offered to her by Capital, and she also routinely worked at the facilities of other Capital clients. Capital provided employment-related training. Osorio was required to follow Capital's policies and procedures while at TCV worksites. Capital was responsible for her work-related discipline. Capital also ensured that Osorio was properly licensed and certified to perform her tasks. Thus, while there is some evidence of TCV's control over Osorio's work environment during her shifts at TCV facilities, she does not proffer sufficient evidence to support a finding that TCV exercised any significant degree of control over her daily activities. At best, construing the evidence in the light most favorable to Osorio as the nonmoving party, this area of inquiry is neutral.
On balance, the three primary areas of inquiry weigh against finding TCV to be Osorio's employer. While not dispositive, it is also relevant to consider TCV and Capital's written agreement that Osorio was not TCV's employee. ECF No. 154-4 at 2-3. For these reasons, the undisputed evidence does not support a conclusion that TCV was Osorio's employer for purposes of Title VII. Because TCV was not Osorio's employer under Title VII, the Court should grant TCV's Motion for Summary Judgment relative to Counts III, IV, VI, VII and VIII.
Based on the finding that TCV was not Osorio's employer under Title VII, it is not necessary for the Court to consider TCV's remaining arguments in support of summary judgment on Osorio's Title VII claims.
5. Wrongful Termination (Count V)
In Count V, Osorio claims that she was wrongfully terminated when she lost her shifts at TCV. ECF No. 39 ¶¶ 85-91. She does not specifically plead under what law she is pursuing her wrongful termination claim.
As to Capital, it construes Osorio's wrongful termination claim under Title VII, and it argues that summary judgment should be granted because (1) it did not terminate Osorio's employment; and (2) for the reasons discussed, Osorio did not exhaust her administrative remedies. ECF No. 153 at 12, 14-16, 23. To the extent Osorio argues her “termination” at TCV was caused by Capital's failure to investigate, it argues this does not constitute wrongful termination, Osorio did not actually know whether Capital investigated, and Capital is entitled to an adverse inference that it did so. Id. at 24.
As for the TCV Defendants, they argue that summary judgment is appropriate because TCV was not Osorio's employer and she was not entitled to receive shifts at TCV. ECF No. 146 at 18. Under Pennsylvania law, they argue, Osorio's employment was at-will, so any perceived “termination” was legal. Id.
In response, Osorio does not clarify the legal basis for her wrongful termination claim. She argues that her claim arises under Title VII in response to Capital's Motion for Summary Judgment, but she appears to argue that it arises under either Pennsylvania law and/or Title VII in response to the TCV Defendants' Motion for Summary Judgment. ECF No. 162 at 5; ECF No. 163 at 17-20. She argues that Defendants' termination of her at-will employment was unlawful because they engaged in defamation, retaliation and discrimination. ECF No. 163 at 17-20.
Construing Osorio's pro se pleadings liberally and for the sake of completeness, the Court will address her wrongful termination claim asserted in Count V under both Title VII and Pennsylvania law.
a. Title VII
If Osorio brings Count V under Title VII, summary judgment should be granted as to all Defendants. For the reasons discussed, Capital and the TCV Defendants are entitled to summary judgment relative to Osorio's Title VII claims.
b. Pennsylvania law
If Osorio's wrongful termination claim arises under Pennsylvania law, the Court should also grant summary judgment relative to Capital and the individual TCV Defendants. As discussed, Capital did not terminate its employment relationship with Osorio relative to the incident at issue. Also, there is no claim that the individual TCV Defendants employed Osorio under Pennsylvania law, so they cannot be held liable for wrongfully terminating her.
Summary judgment should also be granted as to Osorio's claim against TCV. Even assuming arguendo that Osorio had an employment relationship with TCV under Pennsylvania law because of her work at TCV, any such employment was at-will. “Under Pennsylvania law, an at-will employee may be terminated ‘for good reason, bad reason, or no reason at all.'” Parker v. Sch. Dist. of Phila., 346 F.Supp.3d 738, 752 (E.D. Pa. 2018) (quoting Hershberger v. Jersey Shore Steel Co., 575 A.2d 944, 946 (Pa. Super. Ct. 1990)). While there is a public-policy exception to this general rule, it is construed narrowly. Id. Under the three public-policy exceptions, an employer (1) cannot require an employee to commit a crime; (2) cannot prevent an employee from complying with a statutorily imposed duty; and (3) cannot discharge an employee when specifically prohibited from doing so by statute. Id.
The only exception that arguably applies is (3), because of Osorio's claim that TCV violated Title VII by “terminating” her employment. However, for the reasons discussed herein, the undisputed evidence does not support a conclusion that TCV was Osorio's employer for purposes of Title VII. As such, she cannot prove a Title VI claim. Accordingly, the Court should grant Defendants' Motions for Summary Judgment as to Count V.
6. Intentional Infliction of Emotional Distress (Count IX)
In support of their Motions for Summary Judgment, Defendants argue that Plaintiff cannot prove her IIED claim because she does not offer any evidence of physical harm and never sought medical attention for her symptoms. ECF No. 153 at 30-31; ECF No. 146 at 23-24. Capital also argues that Plaintiff does not tie any alleged emotional distress to Capital's conduct. ECF No. 153 at 31.
In response, Plaintiff disputes that physical injury is necessary to prove her IIED claim. ECF No. 163 at 27. She argues that White acted intentionally and outrageously in accusing her of theft, instructing Burgess to “push Plaintiff out of the site, ” and showing a lack of caring about the situation. Id. As to Capital, she argues that it is liable for refusing to investigate White's defamatory allegations before removing her from TCV sites. ECF No. 162 at 19.
Upon review, Plaintiff's IIED claim should be dismissed as to all Defendants. To establish an IIED claim, Plaintiff must show “(1) the defendant's conduct was extreme and outrageous; (2) the defendant's conduct caused the plaintiff severe emotional distress; and that (3) the defendant acted intending to cause that person such distress or with knowledge that such distress was substantially certain to occur.” Ghrist v. CBS Broad, Inc., 40 F.Supp.3d 623, 630 (W.D. Pa. 2014) (citing Brown v. Muhlenberg Twp., 269 F.3d 205, 217 (3d Cir. 2001)). Liability is only imposed “where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Reedy v. Evanson, 615 F.3d 197, 231-32 (3d Cir. 2010) (quoting Field v. Phila. Elec. Co., 565 A.2d 1170, 1184 (Pa. Super. Ct. 1989)).
As Defendants point out, “[t]o the extent state and federal courts in Pennsylvania recognize a claim for intentional infliction of emotional distress, they consistently require that a plaintiff suffer some physical manifestation of his alleged emotional distress.” Buttermore v. Loans, No. 15-1514, 2016 WL 308875, at *7 (W.D. Pa. Jan. 25, 2016) (collecting cases). Pennsylvania courts also require a plaintiff to support any alleged physical manifestation of emotional distress with competent medical evidence.” Id. (citing Lawson v. Pa. SPCA, No. 13-7403, 2015 WL 4976523, at *9 (E.D. Pa. Aug. 20, 2015); Wilson v. Am. Gen. Fin. Inc., 807 F.Supp.2d 291, 303 (W.D. Pa. 2011) (citing Pennsylvania decisions)).
In this case, construing the evidence in the light most favorable to Osorio as the nonmoving party, she has failed to establish that she suffered some physical manifestation of her purported emotional distress. As a result, the Court should grant Defendants' Motions for Summary Judgment as to Count IX.
D. CONCLUSION
For these reasons, it is respectfully recommended that the Motions for Summary Judgment, ECF Nos. 145 and 152, be granted.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72.C.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of this Order to file an appeal to the District Judge which includes the basis for objection to this Order. Any appeal is to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to file a timely appeal will constitute a waiver of any appellate rights.