Opinion
Civil No. 3:16-CV-902
03-03-2021
ANDREA L. BRIGGS, Plaintiff, v. MACY'S, INC., et al., Defendant.
(Judge Mannion)
( ) REPORT AND RECOMMENDATION
I. INTRODUCTION
This case, which comes before us for consideration of cross motions for summary judgment, (Docs. 53, 75) aptly illustrates the limitations of such motions. On this score, it is well established that:
Summary judgment is [only] appropriate where the moving party is entitled to judgment as a matter of law, and there is no genuine dispute as to any material fact. In reviewing a motion for summary judgment, we view the evidence in the light most favorable to the non-moving party. We refrain from making credibility determinations or weighing the evidence.Sec'y United States Dep't of Labor v. Am. Future Sys., Inc., 873 F.3d 420, 424 (3d Cir. 2017)(footnotes omitted). Thus, the presence of material factual disputes defeats any motion for summary judgment. We are reminded of this central tenet of federal summary judgment practice as we consider these competing motions for summary judgment. The defendant. Macy's, has asserted that there are no less than 115 undisputed facts in this case. (Doc. 55). This claim by Macy's has engendered a robust factual rebuttal by the plaintiff, Andrea Briggs, who has filed a 147 page retort to this statement of undisputed facts. (Doc. 61). These submissions leave us firmly convinced that factual disputes abound here, precluding summary judgment in favor of any party on any claim.
The plaintiff, Andrea Briggs, filed this employment discrimination lawsuit against her former employer—Macy's, Inc. and Macy's Retail Holdings, Inc. (collectively, "Macy's")—and her former supervisor, Jay Reese, pursuant to Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act (PHRA). (Doc. 27). Briggs alleges that she was subjected to sex/gender discrimination and a hostile work environment at the hands of Reese, and that Macy's either participated in said discrimination or acted with willful indifference. She further alleges that she was terminated by Macy's in retaliation for her complaints about Reese's alleged misconduct. (Id.) Reese and Macy's deny Briggs' allegations, and instead, Macy's purports to have terminated Briggs' employment for violations of its "Macy's Money (MM)" policy. (Doc. 58). In addition, Macy's Retail Holdings, with the permission of the District Court, raised compulsory counterclaims against Briggs for fraud, negligent misrepresentation, and conversion, relating to her alleged violations of the MM policy.
At the outset, we note that Briggs' complaint asserts identical claims of sex/gender discrimination, hostile work environment, and retaliation against the Macy's defendants under Title VII and brings identical claims against the Macy's defendants and Reese under the PHRA. In the Third Circuit, the analysis of these two statutes is identical, as they have been construed to offer the same protections. See Weston v. Pennsylvania, 251 F.2d 421, 425 n.3 (3d Cir. 2001). --------
After a review of the record, we find that there are numerous genuine issues of material fact with respect to both Brigg's claims and Macy's Retail Holding's counterclaims. Accordingly, for the reasons set forth below, we will recommend that both motions for summary judgment be denied.
II. BACKGROUND
Andrea Briggs was employed by Macy's beginning in March of 2000. (Doc. 55, ¶ 1). She accepted a position at the Wyoming Valley Mall location as a Visual Manager in 2009. (Id., at ¶ 2). Defendant Jay Reese was the Vice President Store Manager ("VPSM") from March of 2014 through March of 2016. (Id., at ¶ 36). The VPSM position was a senior executive position. (Id., at ¶ 11).
During Briggs' employment under Reese, she alleges that she was subjected to the following conduct:
(a) Mr. Reese repeatedly invited Mrs. Briggs to dine and have cocktails with him;
(b) Mr. Reese repeatedly followed Mrs. Briggs around Mrs. Briggs' place of employment and took unwanted photographs of Mrs. Briggs;
(c) Mr. Reese repeatedly stared at Mrs. Briggs;
(d) Mr. Reese repeatedly made comments about Mrs. Briggs' physical appearance and attire;
(e) Mr. Reese physically touched Mrs. Briggs inappropriately;(Doc. 27, ¶ 21).
(f) Mr. Reese repeatedly told Mrs. Briggs that he wanted to see her bare behind;
(g) Mr. Reese repeatedly asked Mrs. Briggs if her husband Robert Briggs ("Mr. Briggs") was out of town; and
(h) Mr. Reese stalked Mrs. Briggs by driving by Mrs. Briggs' residence.
As discussed below, in addition to her own statements, Briggs has identified co-workers who have described unwanted attention by Reese directed at the plaintiff. Briggs claims to have complained about Reese's conduct to Rosemary Cooney, the Director of the Macy's Visual Department, in late May of 2014. (Id., ¶ 38). At that time, she advised Ms. Cooney that Reese would follow her around, constantly make advances, and that she felt very uncomfortable. (Id., ¶ 39). During that same time frame, Briggs told Reese directly that when she saw him coming, she went the other direction. (Id., ¶ 40). There was no investigation into these allegations and Reese was never disciplined. (Id., ¶ 45). Briggs alleges that Reese's peers and superiors, who witnessed his conduct, took no action. (Id., ¶¶ 50-51).
Afterward, an investigation was initiated into the distribution and use of MM at the Wyoming Valley Mall location, specifically by managers at that location. (Doc. 55, ¶¶ 74-76). The investigation included interviews with Briggs and other employees and managers whose transaction history did not seem to correspond with the amount of MM being printed. (Id., ¶¶ 82, 84). Witness statements were obtained during the interviews, which were signed by the employees, including Briggs. (Id., ¶¶ 87-88). Briggs signed the statement under protest, noting in handwriting that the statement was an accurate representation of their conversation, that she was unsure how much of the MM was printed for legitimate reasons and how much was not, and that she was only signing it because she was told that Macy's would consider her to have not cooperated in the investigation otherwise. (Id., ¶¶ 87-88).
Initially, the employees Macy's identified as potentially being a part of a scheme in which they issued MM to each other for unauthorized reasons, including Briggs, were suspended. (Id., ¶ 89). Nora Marcy, the District Director of Human Resources, consulted with her immediate supervisor Rob Brooks, the Associate Relations Vice President, Linda Stiller, and Reese's supervisor, Melissa Ludwig about further repercussions. (Doc. 55, ¶ 96). Stiller decided to issue a DML - a final warning. (Id., ¶ 99). However, after being contacted by Reese and Ludwig, who indicated that these seemed similar to integrity issues for which other employees were terminated, Stiller further reviewed the case. She again discussed it with Brooks and Marcy. (Id., ¶¶ 100-102). Ultimately, Stiller, with Marcy in agreement, made the decision to terminate the five identified employees, including Briggs. (Id., ¶ 102). Thus, Briggs was terminated on August 5, 2014. (Doc. 55, ¶ 3).
For her part, Briggs claims that the general practice at the Wyoming Valley Mall location was that Macy's Money was freely given, by and to managers, for "every little thing" or when people went above and beyond expectations, regardless of Macy's stricter, written policy. (Doc. 61, ¶ 18). She therefore avers that the termination was a pretext and that the true reason for her termination was retaliation for her complaints against Reese.
On January 26, 2015, Briggs filed charges of sexual harassment, hostile work environment, and employment discrimination and retaliation with the PHRC and the Equal Employment Opportunity Commission ("EEOC"). (Doc. 27, ¶ 13). In February and April, respectively, Briggs received a notice of right to sue from the PHRC and EEOC. (Id., ¶¶ 14-15).
Briggs then filed the instant Title VII and PHRA lawsuit against Reese and Macy's. (Doc. 1). Briggs filed her original complaint on May 17, 2016. Her first amended complaint, which is now the operative pleading in this case was filed on June 1, 2017. (Doc. 27). The amended complaint alleges that Briggs was discriminated against because of her sex/gender, that she was subjected to a hostile work environment, and that she was retaliated against for lodging complaints of discrimination with Macy's management. (Id.) Macy's filed a motion for summary judgment on all claims against the defendants in the complaint, denying Briggs' allegations and claiming that Briggs was lawfully terminated for violations of the MM policy, not in retaliation for her complaints. (Doc. 53). Briggs later filed a motion for summary judgment as to the counterclaims lodged against her by Macy's which alleged conversion of store property through misuse of Macy's Money. (Doc. 75). These motions have been fully briefed, and the parties requested oral argument, which was held on January 19, 2021. Thus, the motions are ripe for resolution (Docs. 54, 62, 73, 77, 80, 83). For the following reasons, we recommend that these motions for summary judgment be denied.
III. DISCUSSION
A. Motion for Summary Judgment - Standard of Review
The parties have filed cross motions for 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., No. 07-0493, 2010 U.S. Dist. LEXIS 31615, at *4 (M.D. Pa. Mar. 31, 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 F. App'x 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)).
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).
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), aff'd sub nom. Pellicano v. Office of Pers. Mgmt., 714 F. App'x 162 (3d Cir. 2017).
It is against these legal benchmarks that we assess the instant motion for summary judgment.
B. These Motions for Summary Judgment Should Be Denied.
As we have noted, Briggs asserts her claims pursuant to Title VII and the PHRA, arguing that she was discriminated against because of her sex/gender and that she was retaliated against for complaining to Macy's management about the sexual harassment. Macy's Retail, Inc. then filed counterclaims against Briggs for fraud, negligent misrepresentation, and conversion. After a review of the record, we find that virtually all of the material facts regarding the plaintiff's claims and Macy's Retail Holdings' counterclaims are in dispute. Accordingly, the motions for summary judgment should be denied.
1. Briggs' Claims against Macy's and Reese
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against and/or discharging their employees because of their sex. 42 U.S.C. § 2000e-2(a)(1). Title VII discrimination claims are governed by a 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) she is a member of a protected class, (2) she suffered an adverse employment action, (3) under circumstances that give rise to an inference of unlawful sex-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 her 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).
In addition, "'a plaintiff may establish that an employer has violated Title VII by proving that discrimination based on sex created a hostile or abusive work environment.'" Jones, 796 F.3d at 328 (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986)). In order to do so, a plaintiff must make a prima facie showing that: "(1) she suffered intentional discrimination because of her sex, (2) the discrimination was pervasive and regular, (3) the discrimination detrimentally affected her, (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position, and (5) the existence of respondeat superior liability." Bumbarger v. New Enterprise Stone and Lime Co., Inc., 170 F. Supp. 3d 801, 826 (E.D. Pa. March 17, 2016) (quoting Martinez v. Rapidigm, Inc., 290 F. App'x 521, 524 (3d Cir. 2008) (internal quotation marks omitted)). A plaintiff may make a showing that the employer was negligent by demonstrating that the employer failed to take prompt remedial action. Bumbarger, 170 F. Supp. 3d at 838. However, "the employee cannot require the employer to choose a certain remedial action." Id. (citing Knabe v. Boury Corp., 114 F.3d 407, 414 (3d Cir. 1997)). Moreover, "[w]hen the employer's response stops the harassment, there can be no employer liability under Title VII as a matter of law." Id.
Title VII also contains a retaliation provision. To make out a prima facie case of retaliation under Title VII, a plaintiff must show (1) that she engaged in protected activity; (2) that she 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 her participation in protected activity was the but-for cause of any alleged adverse employment action that she suffered. Univ. of Texas v. Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (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 status-based discrimination under Title VII."). "The ultimate question in any retaliation case is an intent to retaliate vel non." Jensen v. Potter, 435 F.3d 444, 449 n.2 (3d Cir. 2006).
Title VII claims are subject to the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 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. 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, 461 F.3d at 342 (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir. 1997)).
Here, for purposes of the instant motion, the defendants contend that Briggs has not established a prima facie case for any of her claims against them. First, Macy's and Reese argue that Briggs has not satisfied the last element for a prima facie case of sex/gender discrimination—that the adverse action occurred under circumstances that could give rise to an inference of intentional discrimination. This element can be satisfied either by generally showing that the circumstances give rise to an inference of discrimination, or by specifically demonstrating that "similarly situated individuals outside the class were treated more favorably." Sarullo, 352 F.2d at 797. The defendants contend that Briggs cannot do either. We disagree.
Taking the facts in a light most favorable to Briggs as the nonmovant, we conclude that there is sufficient evidence in the record from which a jury could find that Briggs was discriminated against because of her gender, and that she was subjected to a hostile work environment. Indeed, the record is replete with evidence from which a jury could infer discrimination because of gender. On this score, Briggs has set forth evidence that her male supervisor, Reese, repeatedly displayed inappropriate behavior toward her, including asking her out for meals, asking for pictures of her naked body, touching her inappropriately, and staring at her and following her around. After she had made reports and complaints of Reese's behavior, she was terminated about two months later. Briggs has presented evidence that corroborates her account of Reese's behavior.
Further, Briggs argues that there were male employees, including Reese himself, who received MM outside the listed, approved uses according to the MM policy, and they were not terminated. Moreover, although the defendants argue that Reese did not make the ultimate decision to terminate Briggs' employment, Briggs notes that Linda Stiller's initial decision regarding discipline for the employees involved in the misuse of MM was to issue a final warning to all of them. It was only after Reese and his supervisor called and spoke to her about the possibility of termination that she changed her mind and made the decision to determinate the five employees. Accordingly, based on the foregoing, we find that Briggs has made a prima facie showing of gender discrimination.
Moreover, we conclude that Briggs has provided sufficient evidence to support her hostile work environment claim. As we have noted, in order to show that she was subject to sexual harassment that created a hostile work environment, Briggs must show that she suffered intentional discrimination because of her sex, and that the discrimination was sufficiently severe or pervasive as to alter the conditions of her work environment. Bumbarger, 170 F.Supp.3d at 828; Jensen v. Potter, 435 F.3d 444, 449 n.3 (3d Cir. 2006).
The defendants deny that any of the behavior attributed to Reese was sexual in nature or because of Briggs' sex. Their brief discusses in a serial fashion each of the allegations against Reese in isolation, arguing that each of the specific behaviors alleged by Briggs, viewed in isolation, was entirely appropriate given Reese's and Briggs' respective positions, the fact that they worked in a "fashionable environment," and that some of his behavior, such as prolonged staring, was directed at both men and women. However, "[w]orkplace conduct is not measured in isolation." Clark Cnty. School Dist. v. Breeden, 532 U.S. 268, 270 (2001). Rather, we must " 'look[] at all the circumstances,' including the 'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Id. (quoting Faragher v. Boca Raton, 524 U.S. 775, 787-88 (1998)). Thus, we must look at the conduct together and in context.
Here, Briggs' assertions, which are supported by other testimony in the record, are sufficient to demonstrate that the discrimination she suffered was because of her gender, as none of the males were subjected to the same treatment from Reese. See Clegg v. Falcon Plastics, Inc., 174 F. App'x 18, 25 (3d Cir. 2006) (denying summary judgment on a hostile work environment claim where the plaintiff set forth facts showing that she was subjected to unwelcomed sexual advances). Furthermore, Briggs' allegations, corroborated at least in part by the depositions of some of her co-workers, who have indicated that the conduct was constant and frequent. Additionally, a reasonable jury could conclude that the harassment unreasonably interfered with Briggs' work performance, as she was visibly upset at work, made up excuses to avoid having lunch with Reese, and intentionally avoided him when he was looking for her multiple times a day. Evaluating Briggs' allegations and looking at the totality of the circumstances, Briggs has, at a minimum created a disputed issue of fact, concerning whether she was subjected to constant inappropriate comments, staring, touching, and advances that made her so uncomfortable that she began to avoid Reese, one of the senior managers in the store in which she worked. Finally, Macy's and Reese do not refute that there was respondeat superior liability. Briggs also presented evidence that she reported Reese's conduct and no action was ever taken. Thus, we conclude that Briggs has presented evidence to support her claims of sex discrimination and a hostile work environment.
Construing the evidence in a light most favorable to the plaintiff as we are required to do Briggs has also made a prima facie showing of retaliation. As we have noted, Briggs must set forth evidence to show that she engaged in protected activity, that she suffered an adverse employment action, and that there was a causal connection between the protected activity and the adverse action. Carvalho-Grevious, 851 F.3d at 257. On this score, the defendants insist that Briggs was not engaged in any protected activity. This is based on their characterization of her conversations with Cooney and the fact that Chwiej did not feel that anything Briggs told him rose to the level of violating the company's anti-harassment policy. They also argue that there was no causal connection between Briggs' protected activity, if any, and her termination.
The problem with these defense assertions is that they conflict with other evidence in a manner which defeats summary judgment adjudication. For example, Briggs asserts that both she and Ms. Elias made complaints about Reese's behavior to Cooney, and that Chwiej did testify to believing that Reese's behavior toward Briggs was inappropriate. In this regard we note that it has been held that "formal and informal complaints of discrimination or harassment constitute protected activities." Speed v. WES Health System, 93 F.Supp.3d 351, 356-57 (E.D. Pa. 2015) (citing Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 288 (3d Cir. 2001)). Here, construing the evidence in a light most favorable to the plaintiff, Briggs and others made informal complaints to superiors about Reese's alleged harassment. Accordingly, we conclude that Briggs has shown she engaged in protected activity for purposes of Title VII.
Moreover, we find that the evidence, construed in a manner most favorable to the plaintiff, permits an inference that Briggs has shown a causal connection between the protected activity and her termination. It is well-settled that an unusually suggestive temporal proximity between the complaint and the adverse action may support an inference of causation. See Krouse, 126 F.3d at 503. However, in the absence of other evidence from which we may infer motive, courts have held that time periods similar to the two-month period at issue in this case are insufficient, standing alone, to establish causation. See e.g., Groeber v. Friedman and Schuman, P.C., 5555 F. App'x 133, 136 (3d Cir. 2014) (3-month period was not unusually suggestive); Cacciola v. Wrok N Gear, 23 F.Supp.3d 518, 533 (E.D. Pa. 2014) (2-month gap was "too long to qualify as unduly suggestive"); LeBoon v. Lancaster Jewish Community Center Assoc., 503 F.3d 217, 233 (3d Cir. 2007) (3 months insufficient to show causation); Williams v. Phila. Housing Auth. Police Dep't, 380 F.3d 751, 760 (3d Cir. 2004) (2 months insufficient to support an inference of causation); Thomas v. Town of Hamonton, 351 F.3d 108, 114 (3d Cir. 2003) (three-week time period not "unusually suggestive"). Thus, even if the time between the complaint and the adverse action is not unduly suggestive, a plaintiff can still set forth other evidence of retaliatory animus during the intervening time-period to establish causation. Krouse, 126 F.3d at 504.
Here, viewing the evidence in the light most favorable to Briggs, we conclude that she has established a causal connection between her protected activity and her termination. Briggs complained to Cooney and other co-workers about Reese's sexually harassing and discriminatory conduct and no action was taken against him. Approximately two months later, Reese initiated an investigation into the alleged misuse of MM, particularly among managers, despite the ongoing culture in that particular location of very liberally distributing MM. At the end of the investigation, Linda Stiller decided to issue a final warning to the five involved employees, but Reese and his supervisor called and spoke to Stiller about the possibility of termination. As a result, Stiller changed her mind and terminated all of the employees, Briggs included. Accordingly, on these facts we find that a reasonable juror could conclude that Briggs was terminated because she reported Reese's behavior.
While Macy's and Reese devote a significant amount of time in their briefs to refuting Briggs' evidence that supports her claim, we are constrained to note that on summary judgment, "the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations." Anderson, 477 U.S. at 252. Additionally, [w]here the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc., 974 F.2d at 1363. Thus, viewing the evidence in the light most favorable to Briggs, we find that she has set forth a prima facie case both sex discrimination, hostile work environment, and retaliation.
The burden then shifts to the defendant to set forth a legitimate, non-discriminatory or non-retaliatory reason for the adverse action. Here, Macy's and Reese have done so. They claim that the reason Briggs was terminated was because she and four others engaged in a scheme in which they issued MM to each other for unauthorized reasons and/or for quid pro quo purposes to obtain discounted prices on merchandise. Because the decision was ultimately made that this scheme involved an integrity issue, all five employees were terminated. Accordingly, the defendants have carried their burden to show a legitimate, non-discriminatory and non-retaliatory reason for the adverse employment action.
The burden then shifts back to Briggs to set forth evidence that the defendants' reason for terminating her is pretextual. She asserts that she was an excellent manager and that in her fourteen years with the company, she had never been disciplined. Furthermore, she points to the amount of MM issued by numerous employees, some of whom were not terminated, and the fact that MM was not exchanged between each and every employee in the alleged scheme. She again emphasizes that numerous managers at the Wyoming Valley Mall location regularly issued MM for reasons outside of the written MM policy, and further alleges that Reese himself received MM and was not disciplined. She points to specific record evidence that MM was routinely issued for "any little thing" or when people went above and beyond expectations. In our view evidence, this, combined with the two-month time frame between her complaints about Reese's conduct and the investigation into the misuse of MM and her termination, is sufficient evidence from which a factfinder could conclude that her termination was a pretext for discrimination and/or retaliation.
As we have explained, summary judgment is proper when no genuine dispute exists as to any material fact. Here, almost every material fact in this case is disputed, as is evidenced by the parties' submissions relating to this motion for summary judgment, including almost 200 combined pages for their respective statements of material facts and counterstatements of material facts. Accordingly, given that most, if not all, material facts are in dispute, we conclude that summary judgment in favor of the defendants would be inappropriate. Thus, the defendants' motion should be denied.
2. Macy's Retail , Inc.'s Counterclaims Against Briggs
With permission from the court, Macy's Retail, Inc. raised compulsive counterclaims against Briggs for fraud, negligent misrepresentation, and conversion. Briggs then filed a motion for summary judgment, claiming that these state law counterclaims are barred by the statute of limitations in Pennsylvania and that Pennsylvania law does not allow for relation back of these claims.
On this score, Macy's Retail, Inc. relies on the Federal Rules of Civil Procedure, which provides three circumstances under which an amendment relates back to the date of the original pleading. The first two are when "the law that provides the applicable statute of limitations allows relation back" or when "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading." Fed. R. Civ. P. 15(c)(1)(A), (B). Macy's Retail, Inc. argues that under this rule, regardless of whether Pennsylvania state law allows for relation back, the amendment to their answer (which includes their counterclaims against Briggs) asserts a claim arising out of the same transaction or occurrence and it therefore relates back to the date of Briggs' complaint.
We agree.
It has already been established that these claims are compulsory counterclaims because they arise out of the same transaction or occurrence. (See Doc. 51). In Pennsylvania, it is well established that the filing of a complaint does not toll the statute of limitations applicable to compulsory or permissive counterclaims. Frankentek Residential Sys., LLC v. Buerger, 15 F.Supp.3d 564, 581 (E.D. Pa. 2014). However, the Federal Rules of Civil Procedure allow for relation back under a number of circumstances, one of which is when it is allowed by state law. This is not, however, the only circumstance under which relation back is allowed. The Rules explicitly allow for relation back when "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading." Fed. R. Civ. P. 15(c)(1)(B). To the extent that this federal rule conflicts with Pennsylvania state law, the Federal Rules of Civil Procedure should govern, because "[t]olling of a statute of limitations is generally controlled by state law, unless state law conflicts with federal law." Hankin Family P'ship v. Upper Merion Twp., No. 01-1622, 2012 U.S. Dist. LEXIS 1467, at *36 (E.D. Pa. Jan. 6, 2012). Here, we conclude that the tolling and relation-back provisions of the federal rules control to the extent that they conflict with Pennsylvania state practice. Therefore, we find that Macy's Retail, Inc.'s amendment relates back to the date of the filing of the complaint. Thus, it is not barred by the statute of limitations.
Alternatively, Briggs argues that there is no dispute as to any material facts for the essential elements of Macy's Retail, Inc.'s unjust enrichment claim against her and that she is therefore entitled to summary judgment on this claim. She asserts that the record is devoid of any evidence suggesting that she was "unjustly" enriched by any alleged receipt of Macy's Money because she issued and received it in the same manner as other managers. For its part, Macy's Retail, Inc. asserts that the Macy's defendants have presented evidence that Briggs and four others were terminated for their role in a scheme in which they issued and received MM for unauthorized reasons and/or for quid prop quo purposes to obtain discounted prices on merchandise. Thus, the parties' respective positions regarding the plaintiff's motion for summary judgment on Macy's counterclaim draw us back into the same factually disputed morass which marked the defendants' motion for summary judgment. As we have explained with respect to the defendants' motion for summary judgment, the parties dispute almost every aspect of this claim and therefore, disputes as to material facts exist and summary judgment is not proper. Accordingly, the plaintiff's motion to dismiss should be denied.
IV. RECOMMENDATION
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the defendants' motion for summary judgment (Doc. 53) and the plaintiff's motion for summary judgment (Doc. 75) 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.
Submitted this 3d day of March 2021.
S/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge