Opinion
CIVIL ACTION NO. 01-5565.
July 17, 2003
MEMORANDUM
I. BACKGROUND
Olaniyan Adefumi ("plaintiff") is an African American male who had been employed with the Philadelphia Free Library ("Library") since June 1988. Plaintiff was originally hired as Library Assistant I. The job duties of a Library Assistant I generally consist of organizing and maintaining the Library's common areas and re-shelving books. In 1995, plaintiff was promoted to Library Assistant II. The job duties of a Library Assistant II are essentially the same as those of a Library Assistant I, except that, as a Library Assistant II, plaintiff had the additional responsibility to supervise two individuals who held the position of Library Assistant I.
According to plaintiff, he was discriminated against by female co-workers and, at least, one supervisor because of his gender and race. Plaintiff alleges that beginning in early 1997 and continuing throughout his employment with the Library, he was verbally harassed by Carol Waddy ("Ms. Waddy"), an African American female, who was one of plaintiff's co-workers. This alleged harassment sometimes included derogatory comments directed in general towards black men. Plaintiff alleges that on one occasion, Ms. Waddy stated that black men are lazy and that they do not adequately provide for their families. Plaintiff further alleges that another African American woman, identified only as Ms. Henry, who had been one of plaintiff's supervisors at some point before 1995, disliked plaintiff because he was a black male and that she once stated that black men "can't find things they don't see." Plaintiff's Deposition at 40.
The alleged comments by Ms. Waddy and Ms. Henry are the only specific examples of race and/or gender based harassment that plaintiff alleges in either his complaint or his opposition to the Library's motion for summary judgment.
Plaintiff brought general allegations of harassment to the attention of Library management. In response, Library management requested that plaintiff document his concerns in writing and submit them to the Library's Human Relations Department ("H.R."). Plaintiff did so, composing an aggressively worded and often incoherent seven-page single-spaced manifesto on intra-office race and gender relations, entitled "HARASSMENT!" The tone of plaintiff's letter caused concern within Library management regarding plaintiff's mental and emotional stability. When these concerns were brought to plaintiff's attention by Library management, plaintiff responded by sending them another strongly worded letter, entitled "LYNCH MOB!", in which plaintiff accused Library management of racial discrimination and attempting to harm plaintiff professionally.
Further concerned over the statements made in plaintiff's second letter, as well as allegedly poor job performance, Library management referred plaintiff to George Hayes, M.D. ("Dr. Hayes") of the Medical Evaluation Unit, City of Philadelphia Personnel Department, for a physical and psychological evaluation. Plaintiff was examined twice by Dr. Hayes in August 1997 and, on both occasions, was found fit to return to work at the Library.
In September of the same year, while on vacation and bicycling through Louisiana, plaintiff was struck by an automobile. As a result of the accident, plaintiff suffered severe head trauma and fell into a coma. Plaintiff was treated at Temple University Hospital ("Temple"). On November 11, 1997, the Library received a letter from Raj K. Narayan, M.D. ("Dr. Narayan), one of plaintiff's treating physicians at Temple and the Chairman of the Department of Neurosurgery at Temple University, indicating that it was uncertain whether plaintiff would ever be able to return to work. It is uncontested that plaintiff's accident rendered him unable to work and caused him to require close medical supervision until December 1997.
Plaintiff alleges that by early 1998, he was fully recovered and able to return to work and requested reinstatement to his previous position as a Library Assistant II. On March 5, 1998, while the request for reinstatement was pending, plaintiff was involuntarily retired from the Library under the Non-service Disability Clause of the Civil Service Pension Plan.
Soon thereafter, plaintiff reasserted his request to return to his previous position at the Library as a Library Assistant II. In response, the Library requested a determination from Dr. Hayes regarding plaintiff's ability to return to work. On March 17, 2003, after a review of plaintiff's medical records, including records of the treatment plaintiff had received as a result of the September 1997 bicycling accident, but without a physical examination of plaintiff, Dr. Hayes arrived at a diagnosis of "S/P head injury with secondary severe cognitive impairment."
The Library contends that its decision to involuntarily retire plaintiff from the Library, and its subsequent refusal to rehire the plaintiff, were based on the Library's belief that, as a result of his accident, plaintiff was no longer able to perform the duties of a Library Assistant II. The Library states that this conclusion is based upon the November 11, 1997 letter from Dr. Narayan, plaintiff's post-accident medical records and Dr. Hayes' March 17, 2003 diagnosis.
Plaintiff, on the other hand, alleges that the Library's decision to retire him and their refusal to rehire him were motivated by: (1) racial and gender based discrimination; (2) retaliation against the plaintiff for his prior complaints of discrimination; and (3) the Library's incorrect belief that the plaintiff was unable to return to work because of mental disability and cognitive impairment.
As a result plaintiff filed the instant action alleging claims of (1) unlawful termination in violation of the ADA; (2) discriminatory termination in violation of Title VII; (3) retaliatory termination in violation of Title VII; and (4) hostile work environment. Presently before the court is the Library's motion for summary judgment.
Although the Library's motion for summary judgment appears to only address plaintiff's claims for discriminatory termination in violation of Title VII and the ADA, at oral argument, defense counsel also addressed plaintiff's retaliation and hostile work environment claims, arguing for summary judgment as to those claims as well. Thus, presently before the court is the question of defendant's entitlement to summary judgment as to all of plaintiff's claims.
II. ANALYSIS
A. The Standard for Summary Judgment.
A court may grant summary judgment only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is "material" only if its existence or non-existence would affect outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). An issue of fact is "genuine" only when there is sufficient evidence from which a reasonable jury could find in favor of the non-moving party regarding the existence of that fact. Id. In determining whether there exist genuine issues of material fact, all inferences must be drawn, and all doubts must be resolved, in favor of the non-moving party. Coregis Ins. Co. v. Baratta Fenerty, Ltd., 264 F.3d 302, 305-06 (3d Cir. 2001) (citing Anderson, 477 U.S. at 248).
Although the moving party bears the burden of demonstrating the absence of a genuine issue of material fact, in a case such as this, where the non-moving party is the plaintiff, and therefore, bears the burden of proof at trial, that party must present affirmative evidence sufficient to establish the existence of each element of his case. Id. at 306 (citingCelotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Accordingly, a plaintiff cannot rely on unsupported assertions, speculation, or conclusory allegations to avoid the entry of summary judgment, see Celotex, 477 U.S. at 324, but rather, he "must go beyond the pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. U.P.S., 214 F.3d 402, 407 (3d Cir. 2000). Finally, when deciding a motion for summary judgment, courts may not consider evidence that would be inadmissible at trial. See Pamintuan v. Nantikoke Memorial Hosp., 192 F.3d 378, 387 n. 13 (3d Cir. 1999).
B. Discriminatory termination in violation of Title VII.
1. Plaintiff has failed to establish a prima facie case of discriminatory termination.
To establish a prima facie case of discriminatory termination, in violation of Title VII, a plaintiff must establish that: (1) he or she is a member of a protected class; (2) he or she is qualified for the former position; (3) he or she suffered an adverse employment action; and (4) either non-members of the protected class were treated more favorably than the plaintiff, or the circumstances of the plaintiff's termination give rise to an inference of race discrimination. Goosby v. Johnson Johnson Med., Inc., 228 F.3d 313, 318- 19 (3d Cir. 2000);Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 356 (3d Cir. 1999).
In this case it is uncontested that, based on his race and gender, the plaintiff is a member of a protected class. It is also uncontested that plaintiff has suffered an adverse employment action, i.e., termination and refusal to rehire.
The Library contends, however, that, at the time of plaintiff's termination and the Library's subsequent refusal to rehire plaintiff, the plaintiff was not qualified for employment with the library as a Library Assistant II as a result of the injuries he sustained in his September 1997 accident. The Library further contends that non-members of the protected class, i.e. non-African American males, were not treated more favorably than the plaintiff, and that the circumstances of the plaintiff's termination do not give rise to an inference of race discrimination.
Plaintiff disagrees and offers the following evidence to support his claim that he was qualified for the position of a Library Assistant II: (1) his own assertion that he was qualified; (2) a letter written on August 12, 1997 by A. Anthony Arce, M.D. ("Dr. Arce") indicating that, at the time, plaintiff did not have any serious mental illness; and (3) a letter written on July 8, 1999 by Patrice A. Morel, M.S., and reviewed and approved by Kevin C. Riley, Ph.D., ("Dr. Riley") that is based on an examination of plaintiff that was conducted on June 30 and July 31, 1999 by the Temple University, Health Sciences Center, Department of Psychiatry ("Dr. Riley's letter") stating that plaintiff "is currently functioning within the average range of intellectual capability."
With regards to the letter written by Dr. Arce in August 1997, the court finds that, because this letter was written before plaintiff's September 1997 accident, the information and statements contained in the letter are not relevant to the issue of plaintiff's ability to perform the duties of a Library Assistant II in March 1998, the date of plaintiff's termination. Because Dr. Arce's letter does not address plaintiff's ability to perform the duties of a Library Assistant II during the relevant period, it is not helpful to plaintiff. See Pamintuan, 192 F.3d at 387 n. 13; see also FED. R. EVID. 402 (evidence that is irrelevant is inadmissible).
Similarly, with regards to Dr. Riley's letter, the court finds that, because the opinions contained in the letter were based on an evaluation of plaintiff that was conducted almost sixteen months after plaintiff was terminated and because the letter explicitly states that the opinions contained therein are based on plaintiff's "current" condition, i.e., plaintiff's condition at the time the letter was written, not at the time he was terminated, the information and statements contained in the letter are of limited probity with regards to the issue of plaintiff's ability to perform the essential duties of a Library Assistant II in March 1998. For this reason, again, the court finds that because Dr. Riley's letter does not address plaintiff's ability to perform the essential duties of a Library Assistant II during the relevant period it is not helpful to plaintiff. Id.
The court is left with nothing more than plaintiff's assertions that he was qualified for the position of Library Assistant II. Bare assertions or denials, without more, are insufficient to satisfy the burden of the non-moving party to identify genuine issues of material fact under Rule 56(c). See Celotex, 477 U.S. at 324. Therefore, the court finds that because plaintiff has failed to point to sufficient evidence on the record from which a reasonable jury could find that he was qualified for the position of Library Assistant II, plaintiff has failed to establish a prima facie case of discriminatory termination.
2. Plaintiff has failed to establish that the Library's non-discriminatory reasons for terminating plaintiff's employment are pretextual.
The court having found that plaintiff has failed to establish that he was qualified for employment with the library at the time he was terminated, it need not address the issue of whether non-members of the protected class were treated more favorably than the plaintiff or the circumstances of the plaintiff's termination give rise to an inference of race discrimination.
Assuming arguendo that plaintiff could establish a prima facie case of discriminatory termination, the court finds that the Library would, nonetheless, be entitled to summary judgment. Assuming that plaintiff had established a prima facie case of discriminatory termination, the burden of production would then shift to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's [termination]."McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). At this stage the defendant need not persuade the court that it was "actually motivated by the proffered reasons," but need only raise "a genuine issue of fact as to whether it discriminated against the plaintiff." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981). The plaintiff must then show that "[defendant's] stated reason for [plaintiff's] rejection was in fact pretext." McDonnell, 411 U.S. at 804. This may be accomplished "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256.
It should be noted that the burden of persuasion remains with the plaintiff at all times. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993).
As the Third Circuit points out, "[t]o discredit the employer's proffered reason, . . . the plaintiff cannot simply show that the employer's decision was wrong or mistaken. . . ."Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). Rather, the plaintiff must produce evidence that demonstrates "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for [the asserted] non-discriminatory reasons." Fuentes, 32 F.3d at 765 (citations and internal quotation marks omitted) (emphasis and alteration in original).
The Library contends that plaintiff's termination and its subsequent refusal to rehire him was based on the Library's belief that, as a result of the injuries he sustained in his September 1997 accident, the plaintiff was not qualified for employment with the library. As evidence of pretext, plaintiff again presents (1) Dr. Arce's August 1997 letter and (2) Dr. Riley's July 1999 letter, as well as (3) plaintiff's testimony, at his deposition, that he was told by his mother that library management told her that the library would never rehire plaintiff because of the pre-accident letters he had written concerning his complaints of discrimination; (4) the Library's admission that Dr. Hayes' March 17, 1998 report was based only upon a review of plaintiff's medical records, including records of the treatment plaintiff had received as a result of the September 1997 bicycling accident, and not upon an actual physical or psychological examination of plaintiff; and (5) plaintiff's own allegation that the Library's stated reason for terminating and not rehiring plaintiff were pretextual.
First, as explained above, because there is no temporal nexus between Dr. Arce's 1997 letter and Dr. Riley's 1999 letter and plaintiff's termination, the letters are not relevant to the issue of plaintiff's ability to perform the duties of a Library Assistant II in March 1998.
Second, plaintiff's allegation that he was told by his mother that someone in Library management told her that the Library would never rehire plaintiff because of his pre-accident letters is inadmissible hearsay under Rules 801, 802 and 805 of the Federal Rules of Evidence. FED. R. EVID. 801, 802 805. Rule 801(c) defines hearsay as an out of court statement offered in evidence to prove the truth of the matter asserted. FED. R. EVID. 801(c). Under Rule 802, hearsay is not admissible at trial unless an established exception or exclusion applies. FED. R. EVID. 802. Under Rule 805, hearsay included within hearsay is admissible only if "each part of the combined statements conforms with an exception to the hearsay rule." FED. R. EVID. 805.
It is uncontested that the proffered statement is an out of court statement being offered for its truth and is, therefore, inadmissible unless an established exception or exclusion applies. Although the underlying statement, i.e., the Library's alleged statement to plaintiff's mother, is admissible under Rule 801(d)(2) as an admission by a party-opponent, the statement allegedly made by plaintiff's mother to plaintiff, i.e., that plaintiff's mother told plaintiff that she was told that the library would not rehire him based on his pre-accident writings, is inadmissible hearsay to which no exclusion or exception applies. Therefore, because the alleged statement made by plaintiff's mother is inadmissible as evidence in this case, the court will not consider this statement in deciding the instant motion.
It should be noted, however, that had plaintiff's mother submitted a signed affidavit stating that she was told by library management that the library would never rehire plaintiff because of the pre-accident letters he had written, the alleged statement would be admissible as an admission by a party-opponent. However, because no affidavit was submitted and, therefore, the source of the statement at trial would presumably be the plaintiff, the statement is inadmissible and the court need not reach a conclusion as to whether such a statement would satisfy plaintiff's burden to demonstrate pretext.
Evidence that would not be admissible at trial may not be properly considered by the court when deciding a motion for summary judgment. See Pamintuan, 192 F.3d at 387 n. 13.
Third, plaintiff contends that the uncontested fact that Dr. Hayes' March 17, 1998 report, upon which the Library allegedly based its decision not to rehire plaintiff, was prepared without yet another physical or psychological examination of plaintiff, but was instead based solely upon a review of plaintiff's medical records, constitutes evidence of pretext. Placed in context, the Library's reliance on plaintiff's prior medical records without the added benefit of a follow-up physical examination was not unreasonable. Plaintiff's prior examination, which served as the basis upon which Dr. Narayan concluded that it was uncertain whether plaintiff would ever be able to return to the Library, was conducted less than five months earlier. Thus, under the facts of this case, Dr. Narayan's letter would have been a sufficient basis, in and of itself, to conclude that plaintiff was unable to perform the duties of a Library Assistant II.
Even assuming that the Library should have had plaintiff re-examined and should not have relied solely on Dr. Hayes' March 17, 1998 report, this would be evidence that the Library was wrong or mistaken as to plaintiff's cognitive ability and condition, but does not supply direct evidence of discrimination, nor evidence of "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action [such] that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for [the asserted] non-discriminatory reasons." Fuentes, 32 F.3d at 765. Therefore, the court finds that the fact that Dr. Hayes prepared his report based on a prior examination of plaintiff by another physician and a review of plaintiff's medical history, but without conducting a physical examination of plaintiff, fails to demonstrate that the Library's proffered reason for terminating and refusing to rehire plaintiff was pretextual.
Accordingly, the court is, once again, left with nothing more than plaintiff's unsupported assertion that he was terminated and not rehired as a result of his race and/or gender. As in the case of plaintiff's failure to show that he was qualified for the position of Library Assistant II, these bare assertions do not satisfy the burden plaintiff must sustain in order to establish pretext in the context of summary judgment. See Celotex, 477 U.S. at 324. Thus, the court finds that because plaintiff has failed to point to sufficient evidence of such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Library's proffered legitimate reasons for its actions, such that a reasonable jury could conclude that the Library did not act for its asserted non-discriminatory reasons, plaintiff has failed to establish that the Library's proffered reasons for terminating plaintiff's employment and for refusing to rehire him are pretextual.
Given the court's findings that plaintiff has failed to establish a prima facie case of discrimination and that he has also failed to establish pretext, the court concludes that the Library is entitled to judgment as a matter of law as to plaintiff's claim for discriminatory termination.
C. Unlawful termination in violation of the ADA.
Under the ADA, employers are prohibited from discriminating "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). A "qualified individual with a disability" is defined by the ADA as a person "with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999).
Accordingly, in order for a plaintiff to establish a prima facie case of discrimination under the ADA, he must show that: 1) he is "disabled" within the meaning of the ADA; 2) he is otherwise qualified for the job; and 3) "he has suffered an adverse employment decision as a result of discrimination."See Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000) (citing Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998). A "disability" is defined by the ADA as: 1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; 2) a record of such impairment; or 3) being regarded as having such an impairment. 42 U.S.C. § 12102(2); Taylor, 184 F.3d at 305-06.
It is uncontested that the Library regarded plaintiff as disabled and that, therefore, plaintiff qualifies as an individual with a disability under the statute. It is also uncontested that the plaintiff has suffered an adverse employment action. Therefore, the issue before the court is whether plaintiff was qualified to work as a Library Assistant II and, if so, whether he was terminated because of his perceived disability.
The reasoning of the court with regards to plaintiff's failure to establish that he was qualified to perform the duties of a Library Assistant II in the context of his discriminatory termination claim, as set forth above, is equally applicable to plaintiff's claim that he was terminated in violation of the ADA. For these same reasons (see Part II.B.1. of this opinion), the court finds that because plaintiff has failed to point to sufficient evidence on the record from which a reasonable jury could find that he was qualified for the position as Library Assistant II, plaintiff has failed to establish that he is a "qualified individual with a disability" under the ADA. Therefore, the court concludes that the Library is entitled to judgment as a matter of law on plaintiff's claim for unlawful termination, in violation of the ADA.
D. Retaliatory termination in Violation of Title VII.
A retaliation claim under Title VII requires that the employee demonstrate that: (1) he engaged in activity protected by Title VII; (2) the employer took adverse action against the employee; and (3) there was a causal connection between the employee's participation in the protected activity and the adverse employment action. Nelson v. Upsala College, 51 F.3d 383, 386 (3d Cir. 1995).
As with a claim for discriminatory termination under Title VII, once the plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas, 411 U.S. at 802;see Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997) (stating that retaliation claims follow the same burden-shifting paradigm as discrimination cases). Once the defendant satisfies this burden, the burden shifts back to the plaintiff to demonstrate that the "[defendant's] stated reason for [plaintiff's] termination was in fact pretext." McDonnell Douglas, 411 U.S. at 804.
It is uncontested that plaintiff's pre-accident letters to Library Management, in which plaintiff complained of unfair treatment and harassment by his female co-workers, constitutes protected activity. It is also uncontested that plaintiff suffered an adverse employment action. Assuming arguendo that plaintiff is able to establish a causal connection between his protected activity and his subsequent termination, the Library is, nonetheless, entitled to summary judgment on this claim because plaintiff is unable to raise a genuine issue of material fact as to whether the Library's proffered reason for terminating and refusing to rehire plaintiff is pretextual.
The reasoning of the court set forth above with regards to plaintiff's failure to establish pretext in the context of his discriminatory termination claim is also equally applicable to plaintiff's retaliation claim. For these same reasons (see Part II.B.2. of this opinion), the court finds that because plaintiff has failed to point to sufficient evidence of such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Library's proffered legitimate reasons for its actions, such that a reasonable jury could conclude that the Library did not act for its asserted non-retaliatory reasons, plaintiff has failed to establish that the Library's proffered reasons for terminating plaintiff's employment and for refusing to rehire him are pretextual. Therefore, the court concludes that the Library is entitled to judgment as a matter of law on plaintiff's retaliation claim.
E. Hostile Work Environment.
Under Third Circuit precedent, to succeed on a hostile work environment claim, the plaintiff must demonstrate:
(1) that he or she suffered intentional discrimination because of race [or gender]; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same race [or sex] in that position; and (5) the existence of [vicarious] liability.Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir. 1996).
In support of this claim, plaintiff alleges: (1) that, as a result of his race and gender, he was disliked by Ms. Henry, who had been one of plaintiff's supervisors prior to 1995, and that on one occasion, Ms. Henry stated that black men "can't find things they don't see;" (2) that he was verbally harassed by Ms. Waddy, that this alleged harassment sometimes included derogatory comments directed towards black men and that on one occasion, Ms. Waddy stated that black men are lazy and that they do not adequately provide for their families; and (3) that he was generally mistreated by his female co-workers as a result of his race and gender. Plaintiff's Deposition at 9-10 40.
Viewing the evidence before the court in the light most favorable to the plaintiff, the court finds that plaintiff has failed to provide evidence that the alleged race and/or gender motivated discriminatory treatment by his female co-workers was pervasive and regular. To the contrary, the plaintiff's specific complaints of discriminatory conduct by his female co-workers refer only to comments that were allegedly made from time to time by Ms. Waddy and Ms. Henry. Moreover, when asked whether the harassing statements allegedly made by Ms. Waddy always contained comments direct towards black men, plaintiff responded, "Sometimes. But most of the time it was just other things." Plaintiff Deposition at 10. Furthermore, when asked whether, aside from the comment noted above, Ms. Waddy made any other comments that plaintiff believed were discriminatory, plaintiff stated that she did not. Plaintiff's Deposition at 41. Finally, when asked, "Other than Ms. Waddy or Ms. Henry[,] was there anyone else at the library at the time you were employed there that made any discriminatory comments to you . . . or about you to someone else," to which plaintiff replied, "No. . . . Not that I know of." Id. Based on these admissions by plaintiff and the lack of any other evidence that the alleged discrimination suffered by plaintiff was pervasive and regular, the court finds that because plaintiff has failed to adduce sufficient evidence from which a reasonable jury could conclude that the alleged harassment was pervasive and regular, plaintiff has failed to establish a prima facie case of hostile work environment.
As an alternative basis for the court's conclusion that plaintiff has failed to establish a hostile work environment claim against the Library, the court finds, even assuming that the conduct of Ms. Waddy caused plaintiff to be subjected to a hostile work environment, that plaintiff has failed to show, under the fifth prong of a hostile work environment claim, that the Library should be held liable for the conduct of Ms. Waddy.
Where the alleged harasser is one of the plaintiff's co-workers, as opposed to a supervisor, the employer may not be held liable under a hostile work environment theory, unless, the plaintiff establishes that the employer "knew or should have known of the harassment and failed to take prompt remedial action." Kunin v. Sears Robuck and Co., 175 F.3d 289, 293 (3d Cir. 1999). "Prompt remedial action" is conduct "reasonably calculated to prevent further harassment." Bonenberger v. Plymouth Township, 132 F.3d 20, 26 (3d Cir. 1997). In other words, the plaintiff must establish that the employer itself acted negligently in failing to recognize and stop the alleged harassment. See Bouton v. BMW of North America, Inc., 29 F.3d 103, 107 (3d Cir. 1994) ("[U]nder negligence principles, prompt and effective action by the employer will relieve liability").
In this case, it is uncontested that the Library knew of the alleged harassment. Plaintiff, however, provides no evidence that Library management acted negligently in failing to discipline Ms. Waddy or otherwise take remedial action that was reasonably calculated to prevent further harassment. To the contrary, plaintiff concedes that he received an apology from Library personnel for having to put up with Ms. Waddy and that "[m]anagement has tried a number of times to stop the problem."See Plaintiff's July 26, 1997 Letter to Library Management entitled, "HARASSMENT!" attached to the Library's Motion for Summary Judgment as Exhibit 3, at 7. Based on these admissions and in the absence of evidence to the contrary, the court finds that because plaintiff has failed to point to sufficient evidence from which a reasonable jury could conclude that the Library's response to plaintiff's allegations of harassment was unreasonable, the Library cannot be held liable for the discriminatory conduct of Ms. Waddy.
Given the court's findings that plaintiff has failed to establish a prima facie case of hostile work environment and that the Library cannot be held liable for the alleged conduct of Ms. Waddy, the court concludes that the Library is entitled to judgment as a matter of law as to plaintiff's hostile work environment claim.
III. CONCLUSION
Based on the foregoing analysis, the court concludes that the plaintiff has failed to establish a claim of discriminatory termination, retaliation and hostile work environment under Title VII and unlawful termination, in violation of the ADA. Accordingly, the Library's motion for summary judgment shall be granted.
An appropriate order follows.
ORDER
AND NOW, this day of July, 2003, upon consideration of defendant's renewed motion for summary judgment (doc. no. 24) and plaintiff's opposition thereto (doc. no. 26), and for the reasons stated in the accompanying memorandum of law, it is hereby ORDERED that defendant's renewed motion for summary judgment is GRANTED.
It is FURTHER ORDERED that judgment shall be entered in favor of the Philadelphia Free Library and against plaintiff.