Opinion
2:19-CV-01580-CRE
07-27-2021
PITTSBURGH SHARIAH CARSWELL, Plaintiff, v. STEAK N SHAKE, INC., Defendant.
REPORT AND RECOMMENDATION
CYNTHIA REED EDDY, CHIEF UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
This civil action was initiated by Plaintiff Shariah Carswell against her former employer Defendant Steak ‘n Shake, Inc. for alleged violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), Section 1981 of the Civil Rights Act of 1866 (“Section 1981”) and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. (“PHRA”) for race discrimination, a racially hostile work environment and retaliation.
Before the Court for consideration is Steak ‘n Shake's motion for summary judgment (ECF No. 46). The motion is fully briefed and ripe for consideration. The Court has subject matter jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction of Plaintiff's state law claims under 28 U.S.C. § 1367.
For the following reasons, it is respectfully recommended that Steak ‘n Shake's motion for summary judgment be granted in part and denied in part. Specifically, it is respectfully recommended that the motion be denied with respect to Plaintiff's retaliation claims and claims for punitive damages under Title VII and Section 1981 and that Steak ‘n Shake's motion be granted in all other respects.
II. REPORT
a. Background
Plaintiff began working for Steak ‘n Shake in November 2017 as a server. Plaintiff is African American. In December 2017, Plaintiff began to be supervised by a new General Manager, Jameson Karluk. Mr. Karluk is Caucasian. In early February 2018, Plaintiff agreed to work the 7:00 a.m. to 2:00 p.m. shift for another server. At that time, she informed Mr. Karluk that she liked working the morning shift and thereafter Mr. Karluk began regularly scheduling Plaintiff for the morning shift. Plaintiff alleges that she informed Mr. Karluk that she could not guarantee that she could be there for the morning shift and that she would prefer to have her original schedule.
In March 2018, Mr. Karluk called Plaintiff “Aunt Jemima.” Plaintiff alleges that Mr. Karluk called her “Aunt Jemima” approximately 20 times over a two-week period in front of other co-workers. Mr. Karluk testified that he called Plaintiff “Aunt Jemima” because she wore a head wrap with a bow tie in the front to work. Plaintiff testified that the second time Mr. Karluk called her “Aunt Jemima, ” she told him to stop and told him that it was racist to refer to her by that name. In response, Plaintiff alleges that Mr. Karluk laughed and continued to call her “Aunt Jemima.” Plaintiff also testified that Mr. Karluk referred to Plaintiff as “syrup” and made other “syrup” references to her during this two-week period.
On April 6, 2018, Plaintiff reported to Steak ‘n Shake's Employee Relations Manager, Rebecca Schuck that she was wearing a purple head band and people called her “Aunt Jemima, ” that Mr. Karluk would ask her “if she needs syrup, ” and because she dyed her hair a red/blonde color “asked her if that was what she was hiding under the thing” and said “that's what syrup does to hair.” Plaintiff also complained that she was being scheduled for the morning shift and it was difficult for her to arrive at work before 9:00 a.m. Plaintiff alleges that Ms. Schuck questioned Plaintiff's version of events and informed Plaintiff that a head band/scarf was not permitted to be worn by employees per Steak ‘n Shake's uniform policy and that they could not guarantee hours or schedules.
Rebecca Shuck delegated the investigation to Steak ‘n Shake's District Manager, Jessica Matheny, who is Caucasian. Ms. Matheny followed up with Plaintiff a few days later about the incident. Plaintiff alleges that Ms. Matheny did not seem to care about Plaintiff being referred to as “Aunt Jemima, ” stated that Plaintiff could not substantiate her complaints and focused on the scheduling concerns Plaintiff raised in her complaint. Ms. Matheny thereafter spoke to Mr. Karluk about Plaintiff's complaint during which he admitted calling Plaintiff “Aunt Jemima” and promised he would not continue his behavior. No. other disciplinary action was taken against Mr. Karluk. Plaintiff admits that she was not subjected to any further comments from Mr. Karluk after this time, but that she was subjected to hostility including having Ms. Matheny having been confrontational during their phone call and after her complaint and because Mr. Karluk would not speak to her at work after she complained about his behavior. Plaintiff also alleges that during her tenure at Steak ‘n Shake, other employees complained that Mr. Karluk subjected them to race discrimination and that Mr. Karluk used the “n-word” in the presence of a bi-racial manager, Elijah Summers. Plaintiff claims that while complaints about Mr. Karluk's inappropriate conduct were made to Ms. Matheny, no disciplinary action was taken against Mr. Karluk.
On May 5, 2018, Plaintiff alleges that she saw a $10 bill on one of her customer's tables, and they paid for the bill with a credit card but did not leave a tip on the credit card bill. Plaintiff assumed that the $10 bill was a tip for her service. A short time after, Plaintiff noticed the $10 bill missing from the table and believed a hostess took the money from her table, though Plaintiff testified that she did not see the hostess remove the money from the table. At the end of her shift, Plaintiff asked Mr. Karluk if she could review the video of her shift because she believed her tip was stolen. Mr. Karluk agreed to allow Plaintiff to review the video and allowed Plaintiff to watch the video by herself because he was called away from his office to attend to another issue. Plaintiff testified that the video showed the hostess cupping something from her empty table and holding it in her palm. After Plaintiff reviewed the video, she claimed she asked the hostess if she took anything from her table and that the hostess responded that she had not, and Plaintiff responded with “okay” and left the restaurant without incident. However, Steak ‘n Shake disputes Plaintiff's version of events and claims that after Plaintiff watched the video, she came onto the restaurant floor and began yelling at the hostess telling her to give Plaintiff her money back and that Plaintiff knew she took it. At that point, Steak ‘n Shake alleges that Elijah Summers, a store manager, asked Plaintiff to calm down and she began cursing and yelling at him as she walked out of the store yelling “f--- this store, f--- these people y'all are f---ing with my money.”
Steak ‘n Shake alleges that Mr. Karluk and Mr. Summers researched the incident and found that the check in question was for about $14, was paid by a credit card and that the guest had left a tip of approximately $2 on their credit card bill. Mr. Summers attempted to contact Plaintiff to explain what was found, but she began to curse at him, and the phone call abruptly ended. Plaintiff denies ever yelling or cursing at the restaurant or to Mr. Summers on the phone in relation to this incident. Steak ‘n Shake terminated Plaintiff the next day on May 6, 2018 on the grounds that she used profanity and raised her voice with managers.
Plaintiff initiated this present lawsuit alleging the following causes of action:
(1) A claim for race discrimination, retaliation and hostile work environment under Title VII of the Civil Rights Act of 1964 (Count I);
(2) A claim for race discrimination, retaliation and hostile work environment under 42 U.S.C. § 1981 (Count II); and
(3) A claim for race discrimination, retaliation and hostile work environment under the Pennsylvania Human Relations Act (“PHRA”) (Count III).
Steak ‘n Shake seeks summary judgment in its favor on all counts.
b. Standard of Review
The standard for assessing a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure is well settled. A court should grant summary judgment if 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 a judgment as a matter of law. “Only 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Furthermore, “summary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 250.
On a motion for summary judgment, the facts and the inferences to be drawn therefrom should be viewed in the light most favorable to the non-moving party. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Hudson v. Proctor & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citations omitted). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48. An issue is “genuine” if a reasonable jury could possibly hold in the nonmovant's favor on that issue. Id. “Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.' ” Matsushita Elec. Indus. Co., 475 U.S. at 587 (citing Huston, 568 F.3d at 104).
A plaintiff may not, however, rely only on his complaint to defeat a summary judgment motion. See, e.g., Anderson, 477 U.S. at 256 (“Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.”). Allegations made with no evidentiary support may be disregarded. Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000).
c. Discussion
i. Plaintiff's race discrimination claims (Counts I, II and III)
First, Steak ‘n Shake argues that it is entitled to summary judgment on all of Plaintiff's race discrimination claims under Title VII, Section 1981 and the PHRA because she cannot establish that similarly situated individuals outside of her protected class were treated more favorably and alternatively that her termination was pretext for race-based discrimination.
Plaintiff does not respond to Steak ‘n Shake's argument that it is entitled to summary judgment on her race discrimination claims. In its reply brief, Steak ‘n Shake indicated Plaintiff's failure to respond to its arguments in support of its summary judgment motion on these claims.
“Where a plaintiff has brought a cause of action which is challenged through [a] motion for summary judgment as legally insufficient, it is incumbent upon the plaintiff to affirmatively respond to the merits of a summary judgment motion. Indeed, a Plaintiff's failure to respond to these arguments constitutes an abandonment of these causes of action and essentially acts as a waiver of these issues.” Skirpan v. Pinnacle Health Hosps., No. 1:07-CV-1703, 2010 WL 3632536, at *6-7 (M.D. Pa. Apr. 21, 2010), report and recommendation adopted, No. 1:07-CV-1703, 2010 WL 3632702 (M.D. Pa. Sept. 10, 2010) (collecting cases). When a plaintiff fails to respond to the merits of a summary judgment motion, the motion should be granted as unopposed. Seals v. City of Lancaster, 553 F.Supp.2d 427, 432-33 (E.D. Pa. 2008); Henkel v. Highgate Hotels, LP, No. 3:15-CV-01435, 2020 WL 6940835, at *6 (M.D. Pa. Nov. 25, 2020).
Even after Steak ‘n Shake placed Plaintiff on notice by indicating in its reply brief that Plaintiff failed to respond to its arguments, Plaintiff did not thereafter seek to amend her brief to include contradictory arguments, nor sought to file a surreply to address her race discrimination claims. Steak ‘n Shake set forth comprehensive substantive arguments challenging the legal sufficiency of Plaintiff's race discrimination claims brought pursuant to Title VII, Section 1981 and the PHRA. Plaintiff's failure to address these arguments constitutes a concession of the critical facts necessary to support these claims and an abandonment of these claims because she took no effort to respond after being placed on notice of her failure to contradict Steak ‘n Shake's motion.
Accordingly, it is respectfully recommended that Steak ‘n Shake's motion for summary judgment be granted as unopposed as to Plaintiff's race discrimination claims under Title VII, Section 1981 and the PHRA (Counts I, II and III).
ii. Plaintiff's Hostile Work Environment Claims (Counts I, II and III)
Plaintiff claims she was subjected to a racially hostile work environment in violation of Title VII (Count I), Section 1981 (Count II) and the PHRA (Count III).
Steak ‘n Shake argues that it is entitled to summary judgment on these claims because Plaintiff cannot establish that she was subjected to severe or pervasive harassment because of her race and that any treatment she was subjected to did not unreasonably interfere with her work performance.
Plaintiff responds that she was subject to a hostile work environment because her supervisor Mr. Karluk referred to her as “Aunt Jemima, ” “syrup, ” and made other comments related to “syrup” no less than 20 times over the span of a two week period, even though she told him the second time he called her “Aunt Jemima” that she perceived his name calling as racist and asked him to stop this behavior. She testified that she was humiliated when called these names, but she needed her job, so she had to deal with being called these names.
Title VII and the PHRA make it unlawful for an employer to discrimination against its employee with respect to compensation or terms, conditions or privileges of employment on the basis of race. 42 U.S.C. 2000e-2(a). Likewise, Section 1981 requires employers to grant “[a]ll persons” the same rights that are “enjoyed by white citizens.” 42 U.S.C. 1981(a), (c). Race discrimination claims under Title VII, Section 1981 and the PHRA are all analyzed using the burden shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Brown v. J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009) (Section 1981); Huston v. Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 n.2 (3d Cir. 2009) (PHRA). As such, Plaintiff's racially hostile work environment claims will be addressed together using the Title VII framework.
One basis for a discrimination claim is where an employee claims, like here, she was subject to a hostile work environment because of her race. To establish a racially hostile work environment, a plaintiff must show that (1) she suffered intentional discrimination because of her race; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected her; (4) the discrimination would have detrimentally affected a reasonable person in like circumstances; and (5) a basis for employer liability is present. Castleberry v. STI Grp., 863 F.3d 259, 263 (3d Cir. 2017).
To prove a racially hostile work environment, a plaintiff must show that her “workplace was ‘permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of [her] employment and create an abusive working environment.' ” Peace-Wickham v. Walls, 409 Fed.Appx. 512, 519 (3d Cir. 2010) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)). The work environment must be “objectively hostile, not just hostile in the plaintiff's view.” Greer v. Mondelez Global, Inc., 590 Fed.Appx. 170, 173 (3d Cir. 2014). In determining whether the discrimination was severe or pervasive, the court should consider “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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Title VII is not a “general civility code, ” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), and “ ‘offhanded comments, and isolated incidents (unless extremely serious)' are not sufficient to sustain a hostile work environment claim.” Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005) (quoting Faragher, 524 U.S. at 788). “ ‘[S]everity' and ‘pervasiveness' are alternative possibilities: some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable conduct will contaminate the workplace only if it is pervasive.” Castleberry, 863 F.3d at 264 (quoting Jensen v. Potter, 435 F.3d 444, 449 n.3 (3d Cir. 2006)).
The court must consider the totality of the circumstances in deciding whether the plaintiff has adduced sufficiently evidence to prove a hostile work environment claim, particularly because in a discrimination case, “it is often difficult to determine the motivations of an action and any analysis is filled with pitfalls and ambiguities. . . . [A] discrimination analysis must concentrate not on individual incidents, but on the overall scenario.” Durham Life Ins. Co. v. Evans, 166 F.3d 139, 149 (3d Cir.1999) (quotations omitted); see also Harris, 510 U.S. at 23 (a hostile work environment “can be determined only by looking at all the circumstances.”). Viewing the totality of the circumstances is particularly important due to “the advent of more sophisticated and subtle forms of discrimination requir[ing] that we analyze the aggregate effect of all evidence and reasonable inferences therefrom, including those concerning incidents of facially neutral mistreatment in evaluating a hostile work environment claim.” Caver, 420 F.3d at 264. A hostile work environment claim can be proven by both “facially neutral mistreatment” and overt racial discrimination which “in sum constitute[] the hostile work environment.” Durham Life Ins. Co., 166 F.3d at 148. See also Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir.1996) (courts have the obligation to be “increasingly vigilant” against subtle forms of illegal harassment).
Plaintiff contends she was subjected to a hostile work environment shortly after Mr. Karluk became her supervisor. According to Plaintiff, over a two-week period, Mr. Karluk subjected her to racially charged epithets. She claims after she wore a headscarf to work that Mr. Karluk referred to her as “Aunt Jemima, ” “syrup, ” and made comments to her related to “syrup” approximately 20 times in front of co-workers. She claims that the second time Mr. Karluk referred to her as “Aunt Jemima, ” she told him to stop because she perceived his remarks as racist. Mr. Karluk made these remarks even after Plaintiff asked him to stop. It is reasonable to infer that Mr. Karluk's coded comments were epithets made because of Plaintiff's race. Moreover, Plaintiff claims that after she complained to Steak ‘n Shake's human resource department through Ms. Schruck and then to the district manager Ms. Matheny about Mr. Karluk's conduct, they were dismissive of her complaints, instead focused on her alleged violations of the company's dress code by wearing a headscarf and emphasizing that she was not guaranteed a set schedule and did not discipline Mr. Karluk. She contends that after she complained about Mr. Karluk's behavior, he ignored her at work.
Additionally, while Plaintiff does not explicitly argue that the court should consider evidence that Mr. Karluk used the “n-word” in the presence of another bi-racial employee and other Steak ‘n Shake employees filed complaints of racially-based harassment against Mr. Karluk with Steak ‘n Shake's human resources department, the court may consider discriminatory actions not specifically directed at Plaintiff as relevant evidence in a hostile work environment case, if the discrimination claimed “detrimentally affected the plaintiff.” McClendon v. Dougherty, No. 2:10-CV-1339, 2011 WL 677481, at *9 (W.D. Pa. Feb. 15, 2011) (citing Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001)). While Mr. Karluk using a racial slur in the workplace and other employees complaining that he subjected them to racial discrimination is particularly troubling, Plaintiff offers no evidence that these incidents directly detrimentally affected her. For example, the record does not include any information related to the complaints of racial discrimination levied by the other employees, or how those complaints and slurs affected Plaintiff. Therefore, the court should only consider the conduct directed at her in considering whether it constitutes a racially hostile work environment.
The conduct Plaintiff was subjected to does not rise to the level of severe or pervasive to constitute a racially hostile work environment. Mr. Karluk's boorish comments calling Plaintiff “Aunt Jemima, ” “syrup” and making other references to syrup when speaking to Plaintiff, Steak ‘n Shake's perceived dismissiveness of Plaintiff's complaints and Mr. Karluk ignoring Plaintiff at work had the cumulative “effect of making [Plaintiff's] life at work merely unpleasant or uncomfortable[, ]” and “engender[ed] offensive feelings in” Plaintiff and does not rise to the level of severe or pervasive discrimination that is actionable under Title VII. McClendon, 2011 WL 677481, at *8 (citing Harris, 510 U.S. at 21). Other courts have found that conduct severe or pervasive enough to constitute a racially hostile work environment included the following: a Mexican-American employee was subjected to multiple instances of ethnic slurs and comments, including being called “the boy from the barrio, ” being asked why he anglicized his name, being asked if he was going to pull out a switchblade during professional disagreements, finding derogatory anonymous messages on the marker board in his cubicle, the most offensive message used the word “mojoado, ” which means “wetback, ” Cardenas, 269 F.3d at 258; African American employees continually referred to as “n----rs, ” “spearchuckers, ” “coons, ” and “jigaboos” by their supervisors, were told that there were not many Black foremen because “they are lazy and never come to work, ” that “you better get your black ass in here, ” and “your black ass will work when I tell you to work, ” that “there are not many black people out here. I could live out here, ” and that “they hang people like you out here, ” one employee received a note on his paycheck that stated “pick no cotton” and when that employee asked his supervisor asked if it was intended to be racial, the supervisor responded, “no this is racial, you are fired, you f---ing n----r, ” and were continually told racially violent “jokes, ” Hightower v. Roman, Inc., 190 F.Supp.2d 740, 750-51 (D.N.J. 2002); and an African American healthcare employee was forced to register African American patients because white co-workers refused to register those patients and would describe them as “ignorant, ” “rude, ” “disruptive, ” and “abrupt, ” accused the plaintiff employee of speaking with her supervisor too often because they were both African American, a white coworker told the plaintiff that “white women were better than black women, and that white women have more ‘class' than black women, ” that white women were more sexually desired by African American men and stated that the white coworker “could sexually satisfy [plaintiff's] husband and [another African American female employee's] husband, ” and made “racially insensitive comments” about African Americans who lived in the vicinity. Henley v. Brandywine Hosp., LLC, No. CV 18-4520, 2019 WL 3326041, at *8 (E.D. Pa. July 24, 2019).
By contrast, the conduct Plaintiff complains of, while insensitive, inappropriate and unwelcome, was not so severe or pervasive to constitute a change in the terms and conditions of her employment, but rather are instances of epithets engendering offensive feelings, discourtesy and rudeness. Sessoms v. Trustees of Univ. of Pennsylvania, 739 Fed.Appx. 84, 90 (3d Cir. 2018). See also Exantus v. Harbor Bar & Brasserie Rest., 386 Fed.Appx. 352, 354 (3d Cir. 2010).
Accordingly, it is respectfully recommended that Steak ‘n Shake's motion for summary judgment for Plaintiff's hostile work environment claims be granted.
iii. Plaintiff's Retaliation Claims (Counts I, II and III)
Plaintiff asserts retaliation claims under Title VII (Count I), Section 1981 (Count II), and the PHRA (Count III) against Steak ‘n Shake alleging that she was retaliated against for filing a complaint with Steak ‘n Shake's human resources department by being terminated, ignored and ostracized, denied a request to change her schedule, and not provided with help.
Steak ‘n Shake argues that it is entitled to summary judgment for these claims because Plaintiff cannot establish a causal connection between these allegedly adverse actions and her complaint to Human Resources, nor can she prove that but for her complaint to Human Resources she would not have suffered these alleged adverse actions.
Plaintiff responds that she was terminated within one month of her complaint of Mr. Karluk's racially derogatory comments to Steak ‘n Shake's human resources department, that she experienced hostility from Ms. Matheny and Mr. Karluk after her complaint, and that the workplace environment condoned the racial harassment by Mr. Karluk by failing to respond to his harassment and therefore engaged in retaliatory conduct against Plaintiff. Because Plaintiff only argues that her termination constituted an adverse employment action and she has seemingly abandoned her claims that adverse employment actions include being “ignored and ostracized, ” denied a schedule change and not “provided with help, ” only her claim that she was retaliated against by being terminated will be addressed.
Under Title VII, it is unlawful for employers to discriminate against “any individual . . . because [s]he has opposed any . . . unlawful employment practice” or because the employee “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.” 42 U.S.C. § 2000e-3(a). “Where there is no direct evidence of retaliation, claims alleging retaliation under Title VII are analyzed under the McDonnell Douglas burden-shifting framework[.]” Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006). The same framework applies to retaliation claims brought under Section 1981 and the PHRA and therefore Plaintiff's claims will be addressed together. Slagle v. Cty. of Clarion, 435 F.3d 262, 265 n.5 (3d Cir. 2006) (PHRA); Cardenas, 269 F.2d at 261 (Section 1981).
To establish a prima facie case of retaliation, Plaintiff must proffer evidence that (1) she engaged in activity protected by Title VII; (2) Steak ‘n Shake took an adverse employment action against her; and (3) there was a causal connection between Plaintiff's participation in the protected activity and Steak ‘n Shake's adverse employment action.” Moore, 461 F.3d at 340-41.
Only the third element is disputed here. At the prima facie stage, a plaintiff must demonstrate evidence of the “scope and nature of conduct and circumstances that could support the inference” of a causal connection between the protected activity and adverse employment action. Farrell v. Planter's Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000). Plaintiff can “rely on a ‘broad array of evidence” to demonstrate a causal connection. Marra v. Philadelphia Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007). For example, Plaintiff may demonstrate a causal connection through an “unusually suggestive” proximity between the protected activity and the adverse action, showing a pattern of antagonism following the protected conduct, showing that the employer gave inconsistent reasons for terminating the employee, or if the record as a whole supports an inference of retaliation. Farrell, 206 F.3d at 281. Additionally, “evidence of condoned harassment can support an inference by the fact-finder that the employe[r], having failed to respond to the harassment, also engaged in retaliatory conduct against the plaintiff.” Woodson v. Scott Paper Co., 109 F.3d 913, 922 (3d Cir. 1997).
Plaintiff has demonstrated facts supporting a causal connection at the prima facie stage. She claims that she was terminated a month after her complaint about Mr. Karluk's conduct; after she complained about Mr. Karluk's conduct, he ignored her in the workplace and treated her negatively; Ms. Matheny subjected her to hostile questioning about her complaints against Mr. Karluk and was told by Ms. Matheny that her complaint was not valid and could not be substantiated; Ms. Matheny did not investigate her claims and instead focused on Plaintiff's alleged violation of the dress code policy by wearing a headscarf to work and Plaintiff's request for a schedule change; Mr. Karluk was not disciplined for his conduct other than a warning, though employees who violate Steak ‘n Shake's anti-discrimination policy can be terminated for the first offense; Mr. Karluk had previous complaints of racial harassment against him which did not result in any disciplinary action; there are inconsistencies surrounding who participated in the decision to terminate Plaintiff; there are inconsistencies in the facts surrounding her termination; and she was ultimately terminated by Mr. Karluk and Ms. Matheny.
Steak ‘n Shake argues that Plaintiff cannot rely on the argument that it did not adequately respond to her complaints by failing to discipline Mr. Karluk or failed to conduct an adequate investigation into the matter, because it is undisputed that after Ms. Matheny told Mr. Karluk to stop using racial epithets with Plaintiff, he did not thereafter refer to Plaintiff by those names. While Steak ‘n Shake is correct that “when an employer's response [to a complaint of harassment] stops [that] harassment, there cannot be Title VII liability, ” Kunin v. Sears Roebuck & Co., 175 F.3d 289, 294 (3d Cir. 1999), and that there can be no Title VII liability for inadequate investigations into complaints of harassment, Young v. Temple Univ. Hosp., 359 Fed.Appx. 304, 309 (3d Cir. 2009), these concepts apply in situations involving establishing an employer's liability for co-worker harassment, and not, where as here, an employee alleges retaliation by a supervisor. Even taking those events out of the equation, Plaintiff has still supported an inference of retaliation at the prima facie stage by pointing to issues of fact surrounding her reason for termination: Steak ‘n Shake alleges she used profanities at the work place after the tip incident leading to her termination while Plaintiff alleges she did not. Likewise, Plaintiff has proffered facts suggestive of a pattern of antagonism connected with her complaint including that Mr. Karluk had prior complaints of racial harassment against him and continued to engage in using racial epithets with Plaintiff and others supports a finding that Steak ‘n Shake's employment atmosphere condoned racial harassment and could have retaliated against Plaintiff for reporting Mr. Karluk's racial harassment. Plaintiff also alleges that she told Mr. Karluk to stop calling her racial epithets the second time he used the names and references, but he continued to do so. Plaintiff has therefore met her prima facie case, as these instances when viewed in totality support an inference of retaliation sufficient to support a causal connection between Plaintiff's complaint and her termination.
Having established the prima facie case, the burden shifts to Steak ‘n Shake to articulate a legitimate, non-retaliatory reason for terminating Plaintiff. Moore, 461 F.3d at 342. Steak ‘n Shake meets its burden by offering Plaintiff's testimony that she admitted “her employment was terminated because her managers did not like her personally and that she ‘should have been fired,' ” alluding to Steak ‘n Shake's position that Plaintiff yelled obscenities at her supervisors after the stolen tip incident leading to her termination. Def.'s Br. (ECF No. 47 at 18). Plaintiff's belief of whether she should have been fired or whether her managers did not personally like her are issues the jury may consider in assessing Plaintiff's credibility surrounding the circumstances of her termination.
Because Steak ‘n Shake satisfied its burden, the burden shifts back to Plaintiff to provide evidence that the employer's proffered reason was pretext and that retaliation was the real reason for her termination. Moore, 461 F.3d at 342. “To discredit the employer's proffered reason . . . the plaintiff must demonstrate such ‘weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reason for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act of the asserted non-discriminatory reasons.” Fuentes, 32 F.3d at 765.
Plaintiff argues that there are material disputes about the underlying conduct that gave rise to her termination. Plaintiff argues that Steak ‘n Shake has proffered inconsistent stories as to who actually made the decision to terminate Plaintiff. While this is certainly an example of an inconsistency, Plaintiff has not indicated why the identity of decisionmaker is material here. Notwithstanding, Plaintiff also argues that Mr. Summers and Mr. Karluk recount very different versions of the “tip incident” which Steak ‘n Shake offers as grounds for her termination. However, upon review of the testimony, it appears that both Mr. Summers and Mr. Karluk testified that Plaintiff used profanity with managers and on the dining room floor in front of customers following the tip incident leading to her termination. Compare Summers Dep. (ECF Nos. 50-7 at 23; p. 84: 3-14) with Karluk Dep. (ECF No. 50-3 at 28; pp. 102-104).
While Mr. Summers first recalled that Plaintiff was terminated because she said “f--- you” to a customer, after his recollection was refreshed through seeing the documentation created after her termination, he testified that he remembered she was terminated after the tip incident. He testified that he did not remember seeing the video footage but may have been in the office. He also testified that he remembered that Plaintiff used profanity on the dining room floor and that he was cursed at by Plaintiff after he tried to calm the situation down. Summers Dep. (ECF No. 50-7 at 20; p. 72).
While Mr. Summers and Mr. Karluk's testimony appears consistent, Plaintiff testified that she did not use any obscenities or profanities and that she did not raise her voice during the tip incident. Pl's Dep. (ECF No. 50-2 at 18; p. 62). Plaintiff's testimony on this point is adequate to survive summary judgment. “[T]here is no rule of law that the testimony of a discrimination plaintiff, standing alone, can never make out a case of discrimination that could withstand a summary judgment motion.” Weldon v. Kraft, Inc., 896 F.2d 793, 800 (3d Cir.1990). Entering summary judgment in Steak ‘n Shake's favor would require believing Mr. Summers and Mr. Karluk's version of events while discounting Plaintiff's, or in other words, would result in the court assessing witness credibility and weighing evidence. If the jury believes Plaintiff's testimony that she did not engage in any behavior following the tip incident that Steak ‘n Shake argues lead to her termination, it could find that their proffered reason for her termination was pretext. While the jury may not find Plaintiff's version of events to be credible, this assessment is in the province of fact finder and not the court.
Accordingly, genuine issues of material fact exist as to whether Steak ‘n Shake's proffered reasons for firing Plaintiff were pretextual and it is respectfully recommended that Steak n' Shake's motion for summary judgment be denied as to Plaintiff's retaliation claims.
iv. Punitive Damages
Lastly, Steak ‘n Shake argues that Plaintiff's claims for punitive damages fail as a matter of law because she has provided no evidence that Steak ‘n Shake engaged in discriminatory practices with malice or with reckless indifference to her federally protected rights.
When an employee demonstrates that a defendant engaged in discriminatory practices “with malice or with reckless indifference to [her] federally protected rights[, ]” punitive damages are available under Title VII and Section 1981. Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 534 (1999); Le v. Univ. of Pa., 321 F.3d 403, 409 n.4 (3d Cir. 2003); 42 U.S.C. § 1981a(b)(1). To obtain punitive damages, Plaintiff must show that Steak ‘n Shake intentionally discriminated against her “in the face of a perceived risk that its actions [would] violate federal law[.]” Kolstad, 527 U.S. at 536.
While Steak ‘n Shake does not explicitly move for summary judgment on punitive damages under the PHRA, it is respectfully recommended that summary judgment be granted in this regard, as punitive damages are not recoverable under the PHRA. Hoy v. Angelone, 720 A.2d 745, 751 (Pa. 1998).
Here, there is enough evidence for a jury to reasonably conclude that Steak ‘n Shake engaged in racially discriminatory practices with malice or reckless indifference to Plaintiff's federally protected rights, as other employees complained about Mr. Karluk's racial discrimination prior to Plaintiff's complaints of racial discrimination, implying that Steak ‘n Shake engaged in conduct with reckless indifference to Plaintiff's rights. Whether that conduct rises to the level of recklessness or maliciousness is more properly left for a jury to determine and therefore it is respectfully recommended that Steak ‘n Shake's motion for summary judgment on punitive damages be denied.
d. Conclusion
For these reasons, it is respectfully recommended that Steak ‘n Shake's motion for summary judgment be granted in part and denied in part. It is specifically recommended that the motion be denied with respect to Plaintiff's retaliation claims and claim for punitive damages and granted in all other respects. Under 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, the parties have until August 10, 2021 to file objections to this report and recommendation. Unless Ordered otherwise by the District Judge, responses to objections are due fourteen days after objections are filed. Failure to file timely objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).