Opinion
Civil No. 01-5815 (JBS).
June 1, 2004
Gregg L. Zeff, Esquire, FROST ZEFF, Cherry Hill, New Jersey, Attorneys for Plaintiff Diane F. Gabriel.
Matthew B. Wieliczko, Esquire, Michael J. Needleman, Esquire, ZELLER BRYANT, Woodcrest Pavilion, Cherry Hill, New Jersey, Attorneys for Defendant Delaware River Port Authority.
Peter L. Frattarelli, Esquire, Tracy Asper Wolak, Esquire, ARCHER GREINER, Haddonfield, New Jersey, Attorneys for Defendant Jack Bruder.
OPINION
In this lawsuit, plaintiff Diane Gabriel alleges that, while working at the Delaware River Port Authority (DRPA), she has been subjected to sexual harassment and a hostile work environment since 1993 because Jack Bruder, the Assistant Supervisor of the Toll Audit Department, was loud, profane, and obnoxious. It is undisputed that Bruder never physically touched her, never asked her for sex, and never made comments about wanting to have sex with her. (See, e.g. Wieliczko Cert., Ex. D1, Gabriel Dep. at 8:9-22.) However, plaintiff alleges that his harsh mannerisms were intended to disturb her as a female because he knew that they would make him "appear powerful." (See Fratterelli Cert., Ex. I at 5.)
Presently before the Court are the motions for summary judgment filed by the two defendants in this matter, the Delaware River Port Authority and Jack Bruder. Each asserts that no reasonable factfinder would conclude that plaintiff was subjected to sexual harassment or to a sexually hostile work environment, or that she was retaliated against for making such claims, based on Bruder's abrasive personality. This Court agrees, and for the reasons explained herein, will grant summary judgment in favor of the defendants. Though Bruder's conduct was inappropriate and unprofessional, no reasonable jury could find that it rose to the level required for a sexual harassment claim, nor is there any evidence of retaliation because of her sexual harassment complaints.
I. BACKGROUND
Plaintiff Diane Gabriel was hired by the Delaware River Port Authority in September 1980 as a toll collector, became a toll accounting clerk in 1986, and was promoted to revenue auditor in 1987, the position she holds today. (Wieliczko Cert., Ex. D, Gabriel Dep. at 13:25-15:2.) Defendant Jack Bruder was hired in August 1992 as the assistant supervisor of the toll audit department and was plaintiff's supervisor until he became coordinator of the toll variance department in October 1998. (Wieliczko Cert., Ex. J, Bruder Dep. at 25:11-15; id., Ex. B at D273.)
Jack Bruder admits that he can be loud. (Wieliczko Cert., Ex. J, Bruder Dep. at 46:3-14.) In fact, it is undisputed that he unfortunately used profanity in the workplace and could be "obnoxious" and abrasive toward all of his subordinates regardless of their sex. (Wieliczko Cert., Ex. C, Quinn Dep. at 28:1-18; id., Ex. E, Gallo Dep. at 32:8-17, 123:1-124:1; id., Ex. F, Angelucci Dep. at 10:14-11:16, 55:3-56:15; id., Ex. G, Gasperone Dep. at 17:5-21:18; 116:19-117:19; id., Ex. H, Mawhinney Dep. at 15:9-16:6.)
Plaintiff, though, alleges that Bruder's abrasiveness was sexually harassing because he intended to "appear powerful" to his female subordinates. (Frattarelli Cert., Ex. I at 5.) She says that on at least five occasions during 1993 and 1994, Bruder made sexual and racial jokes and used foul and obscene language that she overheard in the workplace, and sometimes "got in [her] face" by standing so close to her that she could smell his breath. (Wieliczko Cert., Ex. D, Gabriel Dep. at 23:12-23; id., Ex. D1, Gabriel Dep. at 8:19-11:10.) As a result, in March 1994, plaintiff made her first complaint about Bruder to Toni Proffit Brown, then-director of Affirmative Action for DRPA. (Id., Ex. D, Gabriel Dep. at 26:10-20.) Ms. Brown completed an investigation during which she interviewed employees in the Toll Audit department, and concluded, in a twenty-one page report dated April 19, 1994, that:
Jack's excessive foul language and management by intimidation made and continues to make him hard to work with. I believe that the environment is a difficult and extremely uncomfortable place to work and that something definitely needs to be done.
(Frattarelli Cert., Ex. I at 21.) Bruder was suspended for twelve days without pay and placed on probation for six months. (Wieliczko Cert., Ex. D, Gabriel Dep. at 25:4-26:20; id., Ex. J, Bruder Dep. at 60:13-84:3; Frattarelli Cert., Ex. G.) No finding of sexual harassment was made. (Id., Exs. I, J.)
Plaintiff then says that there were no "instances of harassment" from 1995 through 1998. (Wieliczko Cert., Ex. D, Gabriel Dep. at 371:1-373:21.) She attributes this to supervisor Abe Weston who, she says, "kept a tighter reign on" Bruder. (Id. at 371:13-372:18.)
In March 1998, plaintiff says that Bruder began to harass her again when he became the Acting Supervisor of the Toll Department. (Id. at 29:11-31:10, 462:2-10.) She says that Bruder would "get argumentative" when she gave him her work and would "start screaming." (Id. at 30:7-17.) Once, she says, she "couldn't even tell you what he was upset about," but that:
I was so scared. I was standing in my cubicle, he jumped in the cube and starting screaming in my face. I had no place to go. The desk was behind me. He was in the doorway. I just froze. He screamed all kind of GD and whatever. I couldn't even tell you what the words were. I just stood there. He got done his ranting and raving and walked away.
(Id. at 30:18-31:1.)
The record abounds in anecdotes about Bruder's boorishness. For example, plaintiff says that Bruder also inappropriately barged into her conversations with coworker Christopher Joe Gallo and made offensive remarks. Once, when talking to Gallo "about a friend of mine that lost her son in a boating accident[,] Jack overheard me [and] came running up in my face [and] started screaming, I was there. The guy was stupid. He didn't know what he was doing." (Id. at 31:2-7.) Another time, she was talking to Joe Gallo "about an article in the paper about a volunteer firefighter that was starting fires, and we commented that, Gee, you know, it's a shame that a lot of these fires are started by volunteers, not by other individuals." (Id. at 33:12-18.) She says that Bruder "came running over [and] said, you GD take that back . . . That's not true [that] the firefighters start all the fires. . . . It's because of F'ing things like that that is said that causes people not to like volunteer firefighters." (Id. at 33:19-34:5.)
The "incident that was the breaking point," though, occurred at a weekly Toll Audit department meeting in April 1998. (Id. at 34:11-15.) At the meeting, she says that "different things [were] discussed and . . . Jack had a different opinion of what he felt the job should do or what we should do." Then, when the meeting ended, "he turned around, and he said F you, and I said, that's it. I just — I can't do it anymore." (Id. at 34:15-22.)
On May 7, 1998, plaintiff called Bruder's supervisor, director of revenue Jim Quinn, and asked him to arrange a meeting with Bruder to discuss his behavior. (Id. at 35:10-36:7, 303:24-304:2, 376:1-377:4; Wieliczko Cert., Ex. C, Quinn Dep. at 41:14-45:19.) She thought Bruder should attend so they could "talk about this situation, why is it occurring," and because he "had the right to know what I was saying about him." (Id., Ex. D, Gabriel Dep. at 317:5-18.) They had the meeting on May 11, 1998, and talked about Bruder's "vulgar language on the phone calls," about his "getting in [her] face," and about a time in October 1992 when she says Bruder brought a gun and beer to work. (Id., Ex. B at D382-D383; id., Ex. D, Gabriel Dep. at 318:12-323:17.) Plaintiff says that toward the end of the meeting, Bruder "starting coming across the table [and] said, please, Diane, he said, don't do anything to me, I really need this job." (Id. at 323:18-22.) Plaintiff testified that she assured him that she was "not trying to do anything to you. I'm trying to work with you," but Bruder continued to "com[e] across the table" and asked her why she had "a hard-on for him." (Id. at 323:23-324:4-8.) Plaintiff then decided that "the meeting should be over [and] walked out." (Id. at 324:11-14.)
Plaintiff says that she approached Quinn the following day and "said, a hard-on? I said, isn't this enough? Doesn't this tell you something, what I'm trying to explain to you," but that Quinn "just shrugged his shoulders . . and never discussed it with me again." (Id. at 377:18-378:20.) Quinn disagrees; he remembers that he went to plaintiff's office the following day and told her "that I had talked to Jack about his comments and that I found that they were inappropriate." (Wieliczko Cert., Ex. C, Quinn Dep. at 45:16-46:22; Frattarelli Cert., Ex. O.) Quinn testified that he told Bruder that his "vulgar" comment was "unnecessary and inappropriate, that a lot of progress that I thought we may have made up to that point in time may have been diminished," and that "the manner in which he communicates with others requires modification" because his manner is "offensive to some, if not all individuals, and [is] perceived as occasionally being intimidating and/or threatening." (Id.; Wieliczko Cert., Ex. C, Quinn Dep. at 44:10-21.)
"It was quiet for a couple weeks" but, plaintiff says, like any time that Bruder was "told to behave," he would "start feeling comfortable again" and "it would progressively start . . . with the phone calls, calling people on the phone, the vulgar language, calling people an asshole." (Wieliczko Cert., Ex. D, Gabriel Dep. at 37:10-19.) Pretty soon, plaintiff says he "was back screaming in my face." (Id. at 37:198-25.)
On July 9, 1998, plaintiff sent a memo to Toni Brown, stating that she "would like the incident of May 11, 1998 documented and put into my file and a copy filed with the legal department" because "there was never a follow up to [the May 11, 1998] meeting and no resolution." (Id. at 38:1-8; Frattarelli Cert., Ex. K.) The letter was forwarded to Kelly L. Campbell, DRPA Assistant General Counsel, who wrote to plaintiff on July 21, 1998 that "your complaint will be investigated promptly and you will be notified of the results of that investigation." (Wieliczko Cert., Ex. D, Gabriel Dep. at 38:9-11; Frattarelli Cert., Ex. L.) Plaintiff says "it never happened. She never got back to me." (Wieliczko Cert., Ex. D, Gabriel Dep. at 38:11-12.)
Kelly Campbell testified that she did follow up on plaintiff's complaint because she was in charge of "sexual harassment investigations." (Wieliczko Cert., Ex. I, Campbell Dep. at 7:20-24; 34:3-35:10.) She met with Richard Brown, General Counsel for the DRPA, but they concluded that plaintiff's complaint was about management concerns and not sexual harassment. They forwarded the complaint, as a result, to Jim Quinn and to Marc Krassen, Chief Financial Officer, for their consideration. (Id. at 35:23-40:19, 47:4-9.) She says that she told plaintiff about these actions during an August 12, 1998 phone call. (Wieliczko Cert., Ex. B at D366).
Plaintiff, though, says that she "still had no response" from Campbell in September, and "things were starting to rev up again," so she sent an email on September 16, 1998 to Paul Drayton, DRPA Chief Executive Officer, stating:
I would like to address the DRPA policies and procedures on sexual harassment. I have met with Mr. Quinn, written a memo to Toni Brown, Dick Brown, Marc Krassen and James Quinn. I have also spoken with Ms. Kelly Campbell about a follow-up meeting. To date, however, there has been no positive feedback.
(Wieliczko Cert., Ex. B at D9; id., Ex. D, Gabriel Dep. at 38:24-39:5.) Because of this email, Richard Brown wrote to Krassen and Quinn to reinforce that:
[i]t is very important that [plaintiff's concerns] be addressed and taken seriously. As Kelly and I have indicated, we feel that this should be addressed within Finance as it is not one of the issues that are my responsibility along with Toni Brown.
(Wieliczko Cert., Ex. B at D386.)
Marc Krassen sent plaintiff a letter on September 23, 1998 to inform her that after investigation, "the matter did not involve sexual harassment, which you indicated was the subject of your memo." (Frattarelli Cert., Ex. M.) However, he stated that he was "very concerned with actions or expressions which may be perceived as unprofessional and inappropriate for the workplace, or which may make co-workers feel uncomfortable." (Id.) Therefore, he indicated that he would be willing to set up a meeting should the plaintiff still wish to discuss the issues. (Id.; Wieliczko Cert., Ex. D, Gabriel Dep. at 39:19-25).
Plaintiff says that she "got very upset" when she received the letter because "it is in my mind sexual harassment." (Id. at 39:25-40:4.) As a result, she sent him an email and requested a meeting. (Id. at 40:5-11; Frattarelli Cert., Ex. N.) Krassen, Quinn, and plaintiff then met in October 1998. (Wieliczko Cert., Ex. D, Gabriel Dep. at 40:7-19.)
During the meeting, plaintiff says that she "talked about Jack Bruder and his behavior," and that Krassen said that it was "Jack Bruder's management style." (Id. at 458:12-18.) She says that the meeting ended with "Marc Krassen saying . . . I will tell you now, and I'm going to tell everyone . . . that Jack Bruder has been removed from toll audit, and he has been replaced with Larry Gasperone." (Id. at 459:4-9.) At about four o'clock that afternoon, "Jack was removed and Larry was the boss." (Id. at 459:13-14.)
Bruder was instructed to refrain from all verbal and physical contact with plaintiff, and was moved to an office in "another area" that was "further away" from plaintiff's office and in a different department. (Id. at 27:24-28:11.) He became the DRPA's "Toll Variance Coordinator" and was no longer plaintiff's supervisor. (Id. at 27:24-28:11; Wieliczko Cert., Ex. J, Bruder Dep. at 84:10-87:24; id., Ex. G, Gasperone Dep. at 9:14-16.) Plaintiff says that she was very pleased. (Id., Ex. D, Gabriel Dep. at 463:2-465:4.)
Plaintiff cannot remember anything that Bruder did that was offensive between October 1998 and May 2000. (Id., Ex. D1, Gabriel Dep. at 18:21-19:4.) In May 2000, though, he started to annoy her again by "challenging my work. Sending it back . . . complaining to my supervisors that I was giving him too much work, I was holding the work back. I was doing it on purpose." (Id. at 19:5-16.) She agrees that Bruder never spoke directly to her during this period, but says that it was only because "he was not allowed to communicate with me." (Wieliczko Cert., Ex. D, Gabriel Dep. at 77:19-24, 83:20-84:7, 500:17-25.) Instead, plaintiff says that Bruder used another employee, John Angelucci, as an "intermediary" to pass his criticism to her. (Id. at 87:19-89:8.) She perceived the scrutiny as harassment because "no one else was questioned. [He] did not go over to anyone else and . . . make them redo some of the work saying it was wrong. No one else was targeted." (Id. at 86:6-13, 501:1-4.) In fact, she believed she was being targeted because one of her co-workers told her that Bruder said that "if it weren't for the blonde, [he] would be the boss in there," when she knew that "there's only one blonde in the office and that is me," (id. at 84:3-12, 255:6-256:10), and another said that it dated back to the "incident in '98 where he was removed from the office and I think he's holding it against you," (Wieliczko Cert., Ex. E, Gallo Dep. at 61:3-24). Angelucci, though, testified that Bruder complained about the quality of all employees' work that he saw, not just plaintiff's. (Id., Ex. F, Angelucci Dep. at 21:3-22:1, 33:3-7, 41:19-42:8.)
Plaintiff also says that Bruder then harassed her in April 2001 by trying to "target [her] for removal" with accusations that she had changed column widths in a certain DRPA computer database. (Wieliczko Cert., Ex. D, Gabriel Dep. at 477:17-478:25; Frattarelli Cert., Exs. P, Q.) Plaintiff testified that Bruder "came in screaming there's going to be a big investigation. . . . He said, I know someone is tampering with this, and I'm going to find out who. I'm going to get to the bottom of it. I'm going to investigate." (Wieliczko Cert., Ex. D, Gabriel Dep. at 42:10-20.) Plaintiff said that she immediately walked out of her office and asked what Bruder was talking about. (Id. at 43:7-18.) She says that John Angelucci then said that "he's running an investigation, and it's targeting you, that you purposely tampered with his spread sheet." (Id. at 43:19-23, 481:22-483:4; see also Frattarelli Cert., Ex. U, Mawhinney Dep. at 12:1-15:1.) Another employee, Ronnie Nitka, overheard this conversation and "came out of her cubicle and said, I touched the spread sheet . . . I had to move the columns because the columns were not wide enough." (Wieliczko Cert., Ex. D, Gabriel Dep. at 43:24-44:5, 483:8-484:15.)
The investigation, therefore, was not needed and it never occurred. Still, plaintiff testified that she "started to shake and cry" because "the minute I hear investigation — we were investigated back in '91 for — there was seven people indicted in that investigation, and it was very ugly, and we were all targeted, and we could have all lost our jobs. So when I hear the word investigation, . . . it's very intimidating." (Id. at 44:6-22; Wieliczko Cert., Ex. E, Gallo Dep. at 64:14-69:7.) She immediately went to Jim Quinn and Larry Gasperone to make sure they would know that "I didn't touch the spread sheet. I hadn't even been on the computer that day." (Id., Ex. D, Gabriel Dep. at 46:25-47:6.) Mr. Gasperone talked to Bruder about it, and "no one ever mentioned [an investigation] again." (Id. at 46:2-48:13.)
Everything was quiet then for about two weeks, when plaintiff says that she came "out of the lady's room and I'm walking towards the audit office [and] Jack comes around from the elevators, gets right next to me, shoulder to shoulder, and does a shrill whistle in my ear." (Id. at 54:2-6.) She says that it was not a sexual whistle, but was an "I'm here. You can't do a thing to me" whistle. (Id. at 54:7-8.) She "started to shake" and hurried back to her desk; the next day, she called out sick. (Id. at 54:9-14.) She says that Bruder used this "shrill whistle" two or three times, and that he also used another type of whistle to harass her, "whistling [only when] he got right [by] my cube, and he knew I was in there." (Wieliczko Cert., Ex. D, Gabriel Dep. at 57:2-23, 59:14-61:20.)
Plaintiff sent a letter to the Equal Employment Opportunity Commission ("EEOC") on April 26, 2001, alleging that Bruder had subjected her to "continuous harassment" in retaliation for her "sexual harassment complaint against him" which she made to Toni Proffit Brown in March 1994. (Frattarelli Cert., Ex. S.) She then signed a charge of discrimination on June 26, 2001, alleging sex discrimination, retaliation, and a hostile work environment. (Id., Exs. R, T.) Because of the charge, the DRPA conducted an "environmental scan of the Toll Audit Department" to determine, in part, "whether there are any EEO issues of which we need to be aware." (Wieliczko Cert., Ex. B at D444-D461.) In an eighteen-page memorandum, Toni Brown explained her finding that the "problems in Toll Audit appear to involve personality clashes, dissatisfaction with pay scales, and ineffective management styles which have all led to a decline in morale," but that the problems did not "have anything to do with race, color, religion, national origin or sex." (Id.)
The EEOC issued plaintiff a right to sue letter on October 10, 2001, (Wieliczko Cert., Ex. K), and she filed the present action on December 14, 2001, alleging claims of sexual harassment and discrimination. (Frattarelli Cert., Ex. H).
Plaintiff has since withdrawn claims for punitive damages and claims for relief under New Jersey statutory law in light of the defendant DRPA's status as a bi-state agency. The Court has also dismissed claims of Count II as to the DRPA and of Counts II and V as to Bruder. Thus, presently at issue are plaintiff's Title VI claims against the DRPA for sexual harassment, hostile work environment, and retaliation, (Counts IV, V, and VI), and her section 1983 claim against Bruder for gender discrimination, (Count VII). Defendants filed the present motions for summary judgment as to these claims on January 28, 2004, [Docket Items 37-1, 38-1], and the Court heard the oral arguments of the parties on March 1, 2004.
II. DISCUSSION
A. Summary Judgment Standard of Review
Summary judgment is appropriate when the record shows 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 dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. Hunt v. Cromartie, 526 U.S. 541, 552 (1999).
The moving party always bears the initial burden of showing no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial.See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, where the nonmoving party bears the burden of persuasion at trial, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325. The non-moving party "may not rest upon the mere allegations or denials of" its pleading to show a genuine issue exists and must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Fed.R.Civ.P. 56(e); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985).
B. Analysis
The Court will grant summary judgment in favor of defendants Delaware River Port Authority and Jack Bruder on all claims because the record, when viewed in the light most favorable to plaintiff Diane Gabriel, would not lead any reasonable factfinder to conclude that plaintiff was subjected to sexual harassment, a hostile work environment, or actionable retaliation, by these defendants.
Pending against the DRPA is the Title VII hostile work environment claim of Count IV, sex discrimination claim of Count V, and retaliation claim of Count VI. Pending against Bruder is the section 1983 gender discrimination claim of Count VII.
1. Sexual harassment claims
This Court will grant summary judgment in favor of the defendants on plaintiff's sexual harassment and hostile work environment claims because she has failed to produce any evidence which could lead a reasonable factfinder to conclude that defendant Bruder subjected her to sexual harassment, gender discrimination, or to a sexually harassing work environment.
To establish liability for a sexually harassing hostile work environment under Title VII, the plaintiff first establish that she has suffered intentional sexual harassment, and must also establish that:
1. the discrimination was pervasive and regular;
2. the discrimination detrimentally affected her;
3. the discrimination would have detrimentally affected a reasonable person of the same protected class in her position; and
4. there is a basis for vicarious liability.
Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001) (citingAman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir. 1996)). Here, there is simply no evidence that could lead a reasonable factfinder to conclude that Bruder harassed plaintiff because of her sex, that his harassment was severe and pervasive, or that a reasonable person in plaintiff's position would have been detrimentally affected as she was. Thus, plaintiff cannot prevail on her sexual harassment, gender discrimination, or sexually hostile work environment claims.
Plaintiff has asserted her gender discrimination claim against defendant Bruder under section 1983. The Third Circuit has adopted the Title VII standard for such section 1983 claims, meaning that the plaintiff, to establish a section 1983 gender discrimination claim must establish (1) that she was subjected to "purposeful discrimination," (2) that she "received different treatment from that received by other individuals similarly situated," and (3) that the "disparate treatment was based upon her gender." See Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990); Lewis v. University of Pittsburgh, 725 F.2d 910, 914-15 n. 5 (3d Cir. 1983).
First, the record shows that Bruder's offensive conduct was not specifically targeted at plaintiff because of her sex. Instead, the record shows that Bruder used profanity and was "obnoxious" to all employees, male or female. (See Wieliczko Cert., Ex. C, Quinn Dep. at 28:1-18; id., Ex. E, Gallo Dep. at 32:8-17, 123:1-124:1; id., Ex. F, Angelucci Dep. at 10:14-11:16, 55:3-56:15; id., Ex. G, Gasperone Dep. at 17:5-21:18; 116:19-117:19; id., Ex. H, Mawhinney Dep. at 15:9-16:6.) Bruder himself agrees that he "come[s] off as speaking loudly." (Id., Ex. J, Bruder Dep. at 46:3-14.) His loud conduct was described as making the entire work environment a "difficult and extremely uncomfortable place to work." (Fratterelli Cert., Ex. I at 21.) His effect was not limited to females.
Also, the record shows, and plaintiff admits, that much of the allegedly harassing conduct was either not specifically targeted at plaintiff or did not even arguably reference her sex. For example, plaintiff admits that she was offended by the sexual and racial jokes and vulgar language that she overheard Bruder using when talking to others, but not to her, and that she was offended by his use of a shrill whistle that was not sexual in nature, his excessive criticism of her work product, his close-range stance when speaking to her, his inquiry into a computer database change, and his comments about news events, all admittedly non-sexual issues. He did allegedly say "Fuck you" to her, and ask her why she "had a hard-on for him," but there is simply no evidence that a reasonable jury could conclude that these comments constituted sexual harassment or gender animus. They were inappropriate comments, especially coming from a supervisor, but they were not evidence of sexual harassment. These terms are expletives and were not used in a sexual connotation. It is well-established that the sexual harassment laws are not a "general civility code" or a vehicle for punishing offhand comments and isolated incidents that are not extremely serious. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Indeed, courts are required to sift through complaints that attack "the ordinary tribulations of the workplace, such as the sporadic use of gender-related jokes, and occasional teasing," and dismiss the claims which relate solely to simple workplace difficulties, even if they are "crass and unwarranted." Faragher, 524 U.S. at 788 (citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998));Saidu-Kamara v. Parkway Corp., 155 F.Supp. 2d 436, 439 (E.D. Pa. 2001). Here, viewing the record as a whole and in the light most favorable to the plaintiff, Bruder's conduct was "crass and unwarranted," but it was not evidence of harassment based on sex.
Second, plaintiff has failed to point to severe and pervasive harassment which could support a hostile work environment claim. To establish a hostile work environment claim, the plaintiff must show that she suffered incidents of gender-based harassment that were "pervasive and regular."Cardenas, 269 F.3d at 260. To determine whether a plaintiff has met this requirement, the court should consider whether, under the totality of the circumstances, the discriminatory conduct occurred frequently, was severe, was physically threatening or humiliating, rather than merely offensive, and whether it unreasonably interfered with the employee's work performance.Aman, 85 F.3d at 1083; see also Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Here, at best, plaintiff has presented evidence that she experienced sporadic offensive conduct, not continuous, severe, and pervasive harassment. According to her testimony, in 1993 and 1994, Bruder told about five racial or sexual jokes, used profanity at times in conversations with others, and stood uncomfortably close to her while talking to her. (Wieliczko Cert., Ex. D, Gabriel Dep. at 23:12-23; id., Ex. D1, Gabriel Dep. at 8:19-11:10.) Then for three years, 1995, 1996, and 1997, Bruder did no do anything that plaintiff would characterize as an "instance of harassment." (Id., Ex. D, Gabriel Dep. at 371:1-373:21.) In 1998, Bruder again used profanity during personal calls, once "scream[ed] in her face," twice made inappropriate remarks about news stories, and made two angry offensive comments ("Fuck you" and "hard-on") during office meetings. (Wieliczko Cert., Ex. D, Gabriel Dep. at 29:11-34:22, 318:12-324:14.) Then, almost another two years passed, from October 1998 through May 2000, when Bruder did not do anything plaintiff considered offensive or harrasing. (Wieliczko Cert., Ex. D1, Gabriel Dep. at 18:21-19:4.) Then, in 2000, she says that Bruder harassed her by excessively scrutinizing her work, by accusing her of changing column widths in a computer database, and by shrilly whistling in her ear. (Wieliczko Cert., Ex. D1, Gabriel Dep. at 19:5-16;id., Ex. D, Gabriel Dep. at 477:17-478:25.) By April or May 2001, Bruder's offensive conduct ceased, and she has continued to work at the DRPA without incident during 2001, 2002, 2003 and into 2004. Based on these facts involving sporadic incidents over the course of a decade, there is simply nothing from which a reasonable factfinder could conclude that the work environment at the DRPA was regularly, severely, and pervasively discriminatory and hostile.
For this same reason, many of plaintiff's claims could also be dismissed based on untimeliness. The DRPA has argued that claims based on pre-2000 conduct should be dismissed as untimely because plaintiff did not file an EEOC charge about the claims within the 180-day period required by Title VII, see 29 U.S.C. § 2000e-5(e)(1), when plaintiff sent her first letter about these events to the EEOC on April 26, 2001, (Frattarelli Cert., Ex. S), and signed her charge of discrimination on June 26, 2001, (Id., Exs. R, T). Similarly, Bruder has argued that the section 1983 gender discrimination claim must be dismissed to the extent that it is based on pre-December 14, 1999 conduct, under the two-year statute of limitations, because this Complaint was filed on December 14, 2001.
Plaintiff agrees that these are the appropriate statute of limitations periods, but argues that her claims are timely under the continuing violation theory. This Court disagrees. The continuing violation theory only provides relief for a plaintiff who can show that she suffered discriminatory conduct during the limitations period that was "part of an ongoing practice or pattern of discrimination" which began prior to the limitations period and continued into it. Then, the plaintiff may assert her claim based on all of the conduct. See Delaware State College v. Ricks, 449 U.S. 250, 257 (1980); West v. Philadelphia Electric Co., 45 F.3d 744, 754 (3d Cir. 1995). Conduct that is "continuing" generally involves the same type of discrimination occurring repeatedly, and has a degree of permanence "which should trigger the plaintiff's awareness of and duty to assert her rights" and which causes continuing harm "even in the absence of a continuing intent to discriminate." See Cowell, 263 F.3d at 292 (citing cases).
Here, for the same reasons that this conduct was not severe, regular and pervasive, the conduct was not continuing. No reasonable factfinder could conclude that these sporadic events, spaced over the course of ten years, were part of one repeating pattern of conduct.
Regardless, because the principal problem with plaintiff's case is that no reasonable factfinder could conclude that plaintiff was subjected to sexual harassment in the first place, even if the time-barred incidents were considered for purposes of a continuing violation theory, the Court has chosen to focus its analysis on this flaw rather than on the statute of limitations issue also implicated.
Third, plaintiff has failed to establish that a reasonable person would also have found plaintiff's work environment hostile. Instead, other co-workers accepted that Bruder's "management style" was loud, profane, and argumentative. (See Wieliczko Cert., Ex. C, Quinn Dep. at 28:1-18; id., Ex. E, Gallo Dep. at 32:8-17, 123:1-124:1; id., Ex. F, Angelucci Dep. at 10:14-11:16, 55:3-56:15; id., Ex. G, Gasperone Dep. at 17:5-21:18; 116:19-117:19; id., Ex. H, Mawhinney Dep. at 15:9-16:6.) The DRPA took steps to limit his "excessive foul language and management intimidation," which included a suspension, several reprimands, and a relocation so that he would not have any contact with plaintiff. (See Frattarelli Cert., Exs. G, I, L, M, O; Wieliczko Cert., Ex. D, Gabriel Dep. at 459:13-14.) Still, it was universally recognized that while Bruder's style was unprofessional, unnecessary, and inappropriate, it did "not involve sexual harassment." (See, e.g. Frattarelli Cert., Exs. M, O.) Plaintiff has not pointed to anything which indicates that her emotional reaction was the "normal reaction" as opposed to this reaction shared by her co-workers. Plaintiff may have been scared by Bruder, offended by his remarks, and may have "started to shake and cry" when he said there would be an investigation at the DRPA, but there is no indication that any other reasonable employee at the DRPA would have reacted similarly. Instead, all who have testified agreed that his conduct was abrasive, annoying, insensitive, and obnoxious, but indicated that they were not emotionally or otherwise harmed by it.
The DRPA has also argued that its corrective actions qualify it for summary judgment on plaintiff's claims pursuant toBurlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), which provides an employer with an affirmative defense to a sexual harassment claim if (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or otherwise avoid harm, and (3) the harassment did not culminate in a tangible employment action, such as discharge, demotion, or undesirable reassignment. The record shows that the DRPA had a policy against sexual harassment and that the plaintiff received and understood the policy, (Wieliczko Cert., Ex. B at D39; id. Ex. D, Gabriel Dep. at 99:9-100:2), and that the DRPA investigated plaintiff's claims in 1994, 1998, and 2001 and disciplined Bruder for his conduct.
The Court, though, need not consider the applicability of this affirmative defense to the case here because, as explainedsupra, plaintiff has failed to establish facts which could lead a factfinder to conclude that she suffered from a sexually harassing work environment for which the defense would be needed.
Therefore, because plaintiff has not pointed to any evidence from which a reasonable factfinder could conclude that she suffered sexual harassment, gender discrimination, or harassment that was pervasive and severe enough to establish a hostile work environment, this Court will grant summary judgment in favor of defendants DRPA and Bruder on the sexual harassment, gender discrimination, and sexually hostile work environment claims.
2. Retaliation claim
The Court will also grant summary judgment in favor of defendant DRPA on plaintiff's retaliation claim. She has not presented any evidence which indicates that she suffered an adverse employment action because she filed her sexual harassment complaints. To establish a prima facie case of retaliation, the plaintiff must show that:
Plaintiff has not asserted a retaliation claim against defendant Bruder, but sought leave, in her opposition papers, to amend her complaint to allege a First Amendment Retaliation claim against Bruder under section 1983, arguing that Bruder retaliated against her for exercising her First Amendment right to complain about his conduct.
This Court will deny her request to amend. There is simply no evidence which indicates that plaintiff's private complaints about Bruder's conduct would qualify as matters of public concern protected by the First Amendment, as speech is not protected if the "speech in question is purely personal" and "constitute[s] merely personal grievances." See Brennan v. Norton, 350 F.3d 399, 412 (3d Cir. 2003) (internal citations omitted).
(1) she engaged in a protected employee activity;
(2) the employer took an adverse employment action after or contemporaneous with the protected activity; and
(3) a causal link exists between the protected activity and the adverse action.Weston v. Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001).
Here, the record is clear that plaintiff has not been fired, demoted, transferred, or disciplined in any way because she complained about sexual harassment. While she asserts that she suffered an adverse employment action because she was not promoted to the position of Revenue Analyst, the record is clear that no one was promoted because there has been a hiring freeze at the DRPA. (Wieliczko Cert., Ex. D1, Gabriel Dep. at 137:9-15, 143:18-144:1.) Plaintiff has pointed to nothing which implies that this hiring freeze did not occur, or was somehow used to mask discrimination. Likewise, while plaintiff argues that she suffered an adverse action when she did not receive a pay raise in 2002, she admits that no one in the Toll Audit department, where she works, received such a raise, and points to nothing which in any way indicates that this was not a legitimate fiscal decision. (Id. at 95:9-99:5.) Finally, though she asserts that she suffered an adverse employment action when she was subjected to a hostile work environment, for reasons explained supra, the record is clear that her work environment was not sexually hostile.
Therefore, this Court finds that plaintiff has not presented any proof from which a reasonable factfinder could conclude that she was subjected to retaliation because of her sexual harassment complaints. There is simply nothing which indicates that her employment status was harmed throughout the past decade, let alone that it was harmed because of her complaints. The Court, therefore, will grant summary judgment in favor of the DRPA on plaintiff's retaliation claim.
The Court, therefore, will dismiss all substantive counts of plaintiff's complaint, so need not consider whether the plaintiff has produced sufficient evidence to support emotional distress damages.
III. CONCLUSION
For the foregoing reasons, this Court will grant the motions for summary judgment filed by defendants Delaware River Port Authority and Jack Bruder and will close this case.
The accompanying Order is entered.
ORDER
This matter having come before the Court upon the motions of defendants Delaware River Port Authority and Jack Bruder for summary judgment on all remaining claims in plaintiff's Complaint, [Docket Items 37-1, 38-1]; and the Court having considered the parties' submissions and having heard oral argument on March 1, 2004; for the reasons stated in the Opinion of today's date; and for good cause shown;IT IS this 1st day of June, 2004 hereby
ORDERED that the motion of defendant Delaware River Port Authority for summary judgment, [Docket Item 37-1], be, and hereby is GRANTED ; and
IT IS FURTHER ORDERED that the motion of defendant Jack Bruder for summary judgment, [Docket Item 38-1], be, and hereby is GRANTED ; and
IT IS FURTHER ORDERED that plaintiff's Complaint be, and hereby is, DISMISSED WITH PREJUDICE.
No costs.