Opinion
CIVIL 1:19-CV-1452
01-24-2024
LUIS ROSA, Plaintiff, v. COMMONWEALTH OF PENNSYVANIA, DEPARTMENT OF CORRECTIONS Defendant.
RAMBO JUDGE.
REPORT AND RECOMMENDATION
MARTIN C. CARLSON UNITED STATES MAGISTRATE JUDGE.
I. Introduction
This case, which comes before us for consideration of competing summary judgment motions, (Docs. 104, 111), is an employment discrimination lawsuit brought by Luis Rosa, a former state employee, against the Commonwealth of Pennsylvania Department of Corrections. In this complaint Rosa alleges that the state discriminated against him based upon his race, and retaliated against him for protesting a sexual harassment training program which he deemed to be vile, offensive, and sexually harassing. According to Rosa, this discrimination and retaliation led to his termination from employment by the Pennsylvania Department of Corrections in April of 2018. Rosa also alleges that state officials have subsequently blackballed him, prohibiting him from gaining Commonwealth employment that he was otherwise qualified to obtain due to his protected activity of protesting employment discrimination. For its part, the Commonwealth has denied that Rosa was the subject of any discrimination or retaliation and insists that his workplace discrimination claims fail as a matter of law. Thus, at bottom, this case involves a stark dispute between these litigants regarding questions of motive and motivation.
These irreconcilable legal positions are now presented to us through cross motions for summary judgment with each party arguing that it is entitled to judgment as a matter of law given the undisputed facts. Upon consideration we find that, despite receiving extensive discovery, Rosa simply has not presented sufficient evidence to justify an inference of race-based discrimination or retaliation against him based upon his opposition to discriminatory practices. Therefore, we recommend that the defendant's motion for summary judgment be granted and Rosa's cross motion for summary judgment be denied.
II. Factual Background and Procedural History
With respect to these cross motions for summary judgment the essentially undisputed factsare as follows: The plaintiff, Luis Rosa, is a Hispanic male. In 2017, Rosa was employed as the Director of Reentry and Quality Assurance at the Pennsylvania Parole Board. Rosa's last Employment Performance Review (“EPR”) with the parole board was generally positive, with Rosa receiving ratings of “Commendable” or “Outstanding.”
This statement of facts is taken from the parties' submissions to the extent that those submissions are independently supported by uncontested evidence.
On October 19, 2017, there was a partial merger of functions between the parole board and the Pennsylvania Department of Corrections. As a result of this partial merger, Rosa became an employee of the Department of Corrections in late 2017 and for a period of time served as Acting Deputy Secretary for Reentry within the Department of Corrections.
At the same time that this institutional reorganization took place, on or about October 23, 2017, the Department of Corrections received an anonymous letter alleging that Rosa was engaging in a pattern of workplace misconduct which included abusive language towards staff, failure to appear at work, conducting outside business during work hours, and asserted that Rosa had created a hostile work environment. (Doc. 114-8, at 6-7). Upon receipt of this anonymous letter, and consistent with agency policy, the Secretary of the Department of Corrections, John Wetzel, instructed the Bureau of Investigations and Intelligence to begin an investigation into these allegations. That investigation, which concluded in April of 2018, identified multiple witnesses who described workplace misconduct by Rosa. (Docs. 114-8 through 114-11). The report recommended that the Department of Corrections consider removing Rosa from his current post in light of these adverse personnel findings. (Doc. 114-11).
In his pleadings Rosa suggests that these allegations had previously been investigated, and discounted, by the Inspector General's office, but a review of the timing and subject matter of that IG investigation indicates that it related to prior and separate allegations that were leveled against Rosa at an earlier date when he was employed by the parole board. Thus, these two investigations seem to be unrelated to one another.
While this investigation was ongoing, in December of 2017, Wetzel also directed that all staff undergo sexual harassment training. This training was conducted on December 13, 2017, and reportedly contained sexually explicit images and descriptions that Rosa, and some other staff, found offensive. Shortly after this training took place, Rosa alleges that he voiced his concerns regarding the offensive nature of the training with the Chairman of the Parole Board, Leo Dunn, and at Dunn's suggestion complained directly to Secretary Wetzel. While Rosa inferred from Wetzel's body language that he was displeased with this complaint, Rosa suffered no adverse action at this time.
Instead, some four months elapsed. On April 25, 2018, at the time that the Bureau of Investigations and Intelligence completed its investigation into Rosa's workplace conduct, Wetzel notified Rosa that he was being terminated from his role as Acting Deputy Secretary for Reentry. The termination letter did not indicate that Rosa was being fired for cause, and Wetzel described Rosa's termination as a change in leadership. (Docs. 114-12; 114-7, at 37)
In early 2019 Rosa commenced the process which led to this lawsuit by filing a complaint with the United States Equal Employment Opportunity Commission (EEOC). On January 22, 2019, the EEOC notified the DOC of Rosa's Complaint when DOC was served with a Notice of Charge of Discrimination. Concurrently, Rosa continued to seek state employment at various agencies between 2019 and 2021. In particular, Rosa sought employment as a hearing examiner with the parole board and as an investigator for the Department of State. While Rosa alleges that he was informed that he was eligible for re-employment, and was found to be a highly qualified candidate for these positions, he was consistently denied these appointments.
Rosa then endeavors to present some evidence to support his claim that he was unable to obtain state employment because the Department of Corrections retaliated against him by playing a role in his failure to secure new state employment. However, in a number of instances this evidence proffered by Rosa is either hearsay, wholly speculative, or fails to disclose retaliatory action instigated by the Department of Corrections. For example, the Former Executive Assistant to the parole board Chairmen Leo Dunn, Neal Kokatay, has submitted a declaration which states that he was present for a meeting on January 17, 2019, with Chairman Dunn. Kokatay then proffers a series of hearsay statements which he attributes to Dunn alleging that Dunn “discussed the fact Mr. Luis Rosa had applied for open hearing examiner positions with the Parole Board.” According to Kokatay, Dunn stated that he would not be able to hire Rosa because the Department of Corrections had “blackballed” Rosa, and Kokatay claims that Dunn further stated that what happened to Rosa was “not right” but there was nothing anyone could do about it given the Department of Corrections' opposition to Rosa's re-employment. (Doc 106-1, Ex. 25). These hearsay statements which Kokatay attributes to Dunn do not appear to find further support in the evidentiary record. Notably, we are unable to find any direct testimony from Dunn himself concerning these matters.Therefore, this allegation appears to rest entirely upon inadmissible hearsay. Moreover, this conversation pre-dates the service of Rosa's notice of discrimination upon the Department of Corrections by EEOC and provides no context regarding the factual basis for this hearsay claim which would link the decision to refrain from hiring Rosa to some Title VII protected activity.
We note that the parties' organization of exhibits renders a review of the record highly challenging. In this regard, all counsel are advised to remain mindful of the appellate court's wisdom that “Judges are not like pigs, hunting for truffles buried in the record.” Doeblers' Pennsylvania Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 (3d Cir. 2006), as amended (May 5, 2006).
Rosa also alludes to a second, even more temporally remote hearsay declarant in an effort in stave off summary judgment. In 2019, following his termination by DOC, Rosa was briefly employed by Gaudenzia, in their re-entry program. The woman who hired Rosa into this position, Paula Ruane, has submitted an affidavit that describes hearsay conversations she had with a DOC official, Lt. Petersheim, in the Spring of 2019, one year after Rosa's termination. (Doc. 106-1, Ex 24). Petersheim was apparently looking into allegations that Rosa had been exchanging text messages with the daughter of a state inmate who had been placed in a Gaudenzia re-entry program, conduct which may have transgressed prison non-fraternization policies. According to her affidavit Ruane was aware of the text messages from Rosa but was not informed by Rosa that the recipient of the messages was the daughter of a former inmate who was participating in the Gaudenzia program. Ruane states by way of hearsay that Petersheim challenged Rosa's ethics and requested that Rosa be disciplined, something she declined to do. In our view, this declaration fails to create an issue of fact for several reasons. First, the matters alleged in the declaration are both temporally and topically remote from Rosa's termination. Second, the statements attributed to Petersheim are hearsay, and it has not been shown that any hearsay exception would apply here. Finally, Rosa's efforts to connect these disparate events into some seamless retaliatory web are wholly speculative.
Rosa attempts to further bolster his retaliation claim against the Department of Corrections by alleging that the head of DOC's Bureau of Investigations and Intelligence, James Barnacle, met with the newly appointed Chairman of the Parole Board, Theodore Johnson, on March 21, 2019, and improperly shared the results of the DOC internal investigation with Johnson, as part of an effort by DOC to retaliate against Rosa. The difficulty with this assertion, however, is that the testimony of both Johnson and Barnacle indicates that this meeting took place at Johnson's request, after Rosa, who was then a candidate for a hearing examiner job, informed Johnson that he had been terminated by the Department of Corrections. (Docs. 1061 at 60, 99; 114-6 at 5). Thus, nothing in the record supports an inference that this action was some retaliatory step instigated by DOC. Quite the contrary the undisputed evidence shows that the meeting was requested by Johnson, a non-party, after he learned from Rosa that he had been terminated by Corrections.
Rosa also notes that the disclosure of this report may have violated some internal state policies; however, given the undisputed fact that the disclosure was initiated by a non-party, Johnson, after Rosa disclosed that he had been fired from his position at DOC, the manner in which DOC responded to Johnson's request does not, in our view, support an inference of retaliation.
Finally, Rosa relies upon an even more temporally remote employment decision by other non-parties to try to support an inference of retaliation against the Department of Corrections. Specifically, according to Rosa, on October 16, 2020, he applied for a position with the Pennsylvania Department of State (“DOS”) as a Professional Conduct Investigator I. This job application was submitted more than two years after Rosa's employment with the Department of Corrections ended. Rosa alleges that he was qualified for this position, and was conditionally offered the position. However, at some point during the pay rate approval process, a non-party state official, Marcus Brown, who was then the Director of Homeland Security at the Governor's office, instructed The Office of Administration (OA) to “find a way not to hire” Rosa. Consequently, on April 8, 2021-nearly three years after Rosa's termination by the Department of Corrections-Rosa's job offer for the Professional Conduct Investigator I position was withdrawn.
Rosa's efforts to tie this temporally remote employment decision by a nonparty, Mr. Brown, to some retaliatory motive on the part of the defendant, Department of Corrections, rests upon the thinnest of reeds. According to Rosa during his deposition, the Secretary of the Department of Corrections, Mr. Wetzel testified that he had “spoken” to Mr. Brown about Mr. Rosa's potential termination more than two years earlier in early 2018. Therefore, Rosa would invite the court to draw an inference of retaliation from events which, at best, are separated by years.
It is against this factual backdrop that the parties have filed their cross motions for summary judgment, with the defendant seeking summary judgment on all claims, and Rosa insisting that he is entitled to summary judgment in his favor on this retaliation claim. For the reasons set forth below, it is recommended that the defendant's motion be granted, and Rosa's motion be denied.
III. Discussion
A. Cross Motions for Summary Judgment - Standard of Review
In this case the parties have each moved for summary judgment or partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that the 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). Through summary adjudication, a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact,” Fed.R.Civ.P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int'l, Inc., 702 F.Supp.2d 465, 468 (M.D. Pa. 2010). The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id., at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial,” summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 Fed.Appx. 896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial.” Fireman's Ins. Co. of Newark New Jersey v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Likewise, in a case like this where a party proffers some hearsay declarations in an effort to stave off a summary judgment motion:
[I]t is well established that “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). This rule applies with particular force to parties who attempt to rely upon hearsay statements to establish material issues of fact which would preclude summary judgment. With respect to such claims, it is well-settled that: “In this circuit, hearsay statements can be considered on a motion for summary judgment [only] if they are capable of admission at trial.” Shelton v. University of Medicine & Dentistry of N.J., 223 F.3d 220, 223, n. 2 (3d Cir.2000), citing Stelwagon Mfg. v. Tarmac Roofing Sys., Inc., 63 F.3d 1267, 1275, n. 17 (3d Cir. 1995).Styer v. Frito-Lay, Inc., No. 1:13-CV-833, 2015 WL 999122, at *2 (M.D. Pa. Mar. 6, 2015).
Finally, it is emphatically not the province of the court to weigh evidence or assess credibility when passing upon a motion for summary judgment. Rather, in adjudicating the motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true. Id. Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third
Circuit has instructed that:
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the “mere scintilla” threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. It thus remains the province of the fact finder to ascertain the believability and weight of the evidence.Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted); NAACP v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011).
When assessing whether there exist disputed issues of material fact which preclude summary judgment we are reminded that oftentimes a party's state of mind presents a question of fact. Therefore:
In the summary judgment context, . . . it is well-settled that: “The motive or absence of motive of a party to engage in conduct alleged by another party is relevant to determining whether a genuine issue of fact exists.” Berda v. CBS Inc., 800 F.Supp. 1272, 1276 (W. D. Pa), affd., 975 F.2d 1548 (3d Cir. 1992) citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 596, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).Cooper v. Pennsylvania Hum. Rels. Comm'n, 578 F.Supp.3d 649, 668 (M.D. Pa. 2022).
Further, in this case, we are presented with cross motions for summary judgment. In this setting:
“When confronted with cross-motions for summary judgment ... ‘the court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the summary judgment standard.' ” Transguard Ins. Co. of Am., Inc. v. Hinchey, 464 F.Supp.2d 425, 430 (M.D. Pa. 2006) (quoting Marciniak v. Prudential Fin. Ins. Co. of Am., 184 Fed.Appx. 266, 270 (3d Cir. 2006)). “If review of [the] cross-motions reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts.” Id. (citing Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998)).Pellicano v. Office of Pers. Mgmt., Ins. Operations, 8 F.Supp.3d 618, 625-26 (M.D. Pa. 2014), affd sub nom. Pellicano v. Office of Pers. Mgmt., 714 Fed.Appx. 162 (3d Cir. 2017).
It is against these legal guideposts that we evaluate these cross motions for summary judgment.
B. Title VII Discrimination and Retaliation Claims: The Parties' Burdens of Proof and Persuasion
In determining whether summary judgment is appropriate in a given case we must also be mindful of the elements of a party's claims or defenses, since these legal elements define what essential facts must be proven by undisputed evidence. In this case, Rosa brings Title VII workplace discrimination and retaliation claims against the defendant.
1. Title VII Discrimination
With respect to Rosa's workplace discrimination claim, Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees because of their race. 42 U.S.C. § 2000e-2(a)(1). Title VII discrimination claims are governed by a familiar burden-shifting framework. See Jones v. Southeastern Pa. Transp. Auth., 796 F.3d 323, 325-26 (3d Cir. 2015). In brief, that framework requires that the plaintiff demonstrate that (1) he is a member of a protected class, (2) he suffered an adverse employment action, (3) under circumstances that give rise to an inference of unlawful race-based discrimination. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003). The last element also requires that the plaintiff demonstrate a causal connection between his protected status and the allegedly adverse action. Id. at 798. The key focus of the prima facie test is “always whether the employer is treating ‘some people less favorably than others because of their race, color, religion, sex, or national origin.'” Id. (citation omitted). The elements of the prima facie case “must not be applied woodenly but must rather be tailored flexibly to fit the circumstances of each type of illegal discrimination.” Geraci v. Moody-Tottrup Int'l, Inc., 82 F.3d 578, 581 (3d Cir. 1996).
Plaintiffs bringing Title VII discrimination claims often attempt to carry their burden of proof on the issue of causation by citing allegedly discriminatory remarks which they attribute to co-workers but there is an important caveat to this type of proof. In this regard, it is well settled that temporally remote “stray remarks by nondecision makers, . . . are inadequate to support an inference of discrimination by the employer.” Gomez v. Allegheny Health Servs., Inc., 71 F.3d 1079, 1085 (3d Cir. 1995). Likewise, plaintiffs like Rosa may endeavor to draw an inference of discrimination from disparate treatment of comparable workers, but on this score:
In order to demonstrate discrimination by showing comparators, “comparator employees must be similarly situated in all relevant respects,” the determination of which “takes into account factors such as the employees' job responsibilities, the supervisors and decisionmakers, and the nature of the misconduct engaged in.” Wilcher v. Postmaster Gen., 441 Fed.Appx. 879, 882 (3d Cir. 2011).Barrouk v. PNC Bank, N.A., No. 3:14-CV-1102, 2016 WL 1109487, at *7 (M.D. Pa. Mar. 22, 2016).
2. Title VII Retaliation
Title VII also contains a retaliation provision. In this regard:
To make out a prima facie case of retaliation under Title VII, a plaintiff must show (1) that he engaged in protected activity; (2) that he suffered an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse action. Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 257 (3d Cir. 2017). Ultimately, a plaintiff bringing a Title VII retaliation claim must be able to show that his participation in protected activity was the but-for cause
of any alleged adverse employment action that he suffered. Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013) (“Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e-2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer”); see also Grevious, 851 F.3d at 257 (noting that a plaintiff alleging Title VII retaliation “has a higher causal burden than a plaintiff asserting a claim of direct statusbased discrimination under Title VII”). “The ultimate question in any retaliation case is an intent to retaliate vel non.” Jensen, 435 F.3d at 449 n.2.Cooper v. Pennsylvania Hum. Rels. Comm'n, 578 F.Supp. at 666-67.
With respect to this crucial element of causation:
The Third Circuit has instructed that in cases where the temporal proximity between the protected activity and adverse action is “unusually suggestive,” this timing alone can be sufficient to establish a prima facie case of retaliation. LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217, 231 (3d Cir. 2007). In cases in which the temporal proximity is not unusually suggestive, “we ask whether ‘the proffered evidence, looked at as a whole, may suffice to raise the inference.' ” Id. (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000)).Bonson v. Hanover Foods Corp., 451 F.Supp.3d 345, 358 (M.D. Pa. 2020).
Moreover, when a litigant relies upon temporal proximity to create a causal inference:
“[T]he mere fact that adverse employment action occurs after [a protected activity] will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating a causal link between the two events.” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997), abrogated on other grounds by Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). However, the Third Circuit has stated that if the timing of the allegedly retaliatory
action is “ ‘unusually suggestive' of retaliatory motive” a causal link may be inferred. Krouse, 126 F.3d at 503 (citing Robinson, 120 F.3d at 1302). In some cases, the appeals court has found a period of two days demonstrated a causal link, Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989), but has found that a period of two months was not [sufficient to establish a causal connection]. See Williams, 380 F.3d at 760.Conard v. Pennsylvania State Police, No. 1:22-CV-1121, 2023 WL 4631571, at *3 (M.D. Pa. July 19, 2023).
Finally, Title VII claims are subject to the McDonnell Douglas burdenshifting framework. Thus, if the employee establishes a prima facie case of discrimination or retaliation, the burden shifts to the employer to advance a legitimate, non-discriminatory, and non-retaliatory reason for its conduct, and if the employer does so “the plaintiff must be able to convince the factfinder both that the employer's proffered explanation was false, and that [discrimination or] retaliation was the real reason for the adverse employment action.” Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006) (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir. 1997)).
C. The Defendant is Entitled to Summary Judgment
1. Rosa's Title VII Discrimination Claim Fails
Applying these legal benchmarks, we note at the outset that Rosa's Title VII race discrimination claim founders on the crucial element of race-based causation; that is, a causal discriminatory link between Rosa's protected status and his termination. In this regard, we accept the sincerity of Rosa's subjective sense of grievance, but at this stage of the litigation, Rosa must produce more than subjective suspicions; he must adduce facts.
And he has failed to do so. Beyond Rosa's suspicions, his racial discrimination claim rest upon two thin reeds neither of which create a genuine issue of material fact. First, Rosa alludes to isolated remarks by some co-workers as proof of racial animus. (Doc. 114-2, at 77-87). There are, however, several insurmountable problems with this purported evidence of discrimination by DOC. First, for the most part these statements were made years prior to Rosa's 2018 termination. Thus, they are temporally remote. Second, many of the statements were made prior to Rosa being employed at DOC in late 2017. Therefore, the remarks cannot properly be attributed to this agency as proof of bias. Finally, none of the statements are attributed to any DOC decisionmakers. Therefore, this evidence simply constitutes the type of “stray remarks by non-decision makers, [that] are inadequate to support an inference of discrimination by the employer.” Gomez, 71 F.3d at 1085.
Rosa also attempts to bolster his discrimination claims by alleging that other DOC employees who were not Hispanic were not terminated. (Doc. 114-3, at 13031). However, this comparator proof is legally insufficient. On this score, Rosa's testimony was notably lacking in specificity. He does not identify these allegedly comparable workers, or the circumstances of their workplace discipline. Since “comparator employees must be similarly situated in all relevant respects,” the determination of which “takes into account factors such as the employees' job responsibilities, the supervisors and decision-makers, and the nature of the misconduct engaged in,” Wilcher, 441 Fed.Appx. at 882, these vague averments are simply insufficient to create a material issue of fact on this critical question of discriminatory causation. Instead, the uncontested evidence strongly supports the inference that the April 2018 decision by DOC to terminate Rosa was a discretionary judgment regarding an at will employe which was made at the time that an inquiry into an anonymous letter revealed substantial evidence of work place deficiencies. Therefore, this claim fails as a matter of law and this discrimination claim should be dismissed.
2. Rosa's Title VII Retaliation Claim also Fails.
Rosa's Title VII retaliation claim is similarly flawed. Rosa faces an exacting burden of proof in advancing this claim, since he must show but-for causation to sustain a retaliation claim which requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.
In our view, despite extensive and protracted discovery, Rosa has not amassed evidence which creates a genuine issue of material fact regarding this question of causation. Instead, Rosa attempts to meet his burden of proof through disparate evidentiary shards, none of which individually or collectively meets the standards of proof necessary in this setting. Quite the contrary, this proof of retaliatory motivation fails on several independent scores.
At the outset, there is a decidedly unusual aspect to this retaliation claim. Typically, such claims arise when an individual is subjected to retaliation for complaining about instances of workplace sexual harassment. Curiously, in this case one of the lynchpins of Rosa's retaliation claim is his assertion that he was retaliated against for protesting the content of sexual harassment prevention training. As a threshold matter we question whether Rosa's complaints about the content of the sexual harassment prevention training he received constituted protected activity under Title VII's retaliation provision. We are not alone in questioning whether complaints about sexual harassment training rise to level of protected activity under Title VII. Quite the contrary, other courts have held that “conduct at [a] sexual harassment training session did not constitute protected conduct under § 2000e-3(a).” Entrekin v. City of Panama City Fla., 376 Fed.Appx. 987, 994 (11th Cir. 2010).
Further, the incidents and episodes that Rosa attempts to rely upon to create an inference of retaliation are simply too temporally remote to allow a reasonable inference of causation. Rosa's termination was separated by four months from his alleged protests regarding the content of this sexual harassment training, and many of the other incidents than Rosa attempts to rely upon to establish this claim occurred many months, or even years, after his sexual harassment training complaints or the filing of his EEOC complaint. Thus, the temporal gulf between these events is simply too great to allow for an inference of retaliation.
Moreover, in many instances, Rosa relies upon hearsay declarations or wholly speculative inferences to support this retaliation claim. Inadmissible hearsay cannot defeat a motion for summary judgment. Shelton v. University of Medicine & Dentistry of N.J., 223 F.3d 220, 223, n. 2 (3d Cir.2000). Likewise, “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans, 762 F.2d at 341. Therefore, this hearsay and speculation that endeavors to tie disparate events involving diverse actors into a seamless web of retaliation are simply insufficient to defeat summary judgment.
Simply put, Rosa's discrimination and retaliation claims fail on their proof of causation and motivation. Therefore, the defendant is entitled to summary judgment on these claims. Having concluded that summary judgment in favor of the defendant is appropriate on these claims, it follows that Rosa's motion for partial summary judgment, which insists that the plaintiff is entitled to judgment in his favor on his retaliation claim as a matter of law, also fails and should be denied.
VI. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the Defendant's motion for summary judgment, (Doc. 111), be GRANTED and the Plaintiff's motion for partial summary judgment, (Doc. 104), be DENIED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.