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finding on summary judgment that the plaintiff had established a genuine issue of material fact regarding her subjective perception of an abusive environment where she feared for her job and reputation because of the defendant's alleged threats
Summary of this case from Barrett v. Pa. Steel Co.Opinion
Civil Action No. 01-CV-2630
September 10, 2003
MEMORANDUM AND ORDER
Plaintiff instituted this action in the United States District Court for the Eastern District of Pennsylvania on May 29, 2001. In addition to asserting claims for sexual harassment, retaliation, and constructive discharge under the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2OOOe, et seq., Plaintiff also asserts common law claims for wrongful discharge, breach of contract, tortious interference with Plaintiff's right to continue employment, negligent hiring, retention, and supervision, and negligent and intentional infliction of emotional distress. Defendants' have moved for summary judgment on all remaining counts of Plaintiff s Complaint, contending that Plaintiff's claims are untimely or insufficient on their merits to create any triable issues of fact. For the reasons discussed below, we grant in part and deny in part Defendants' Motion for Summary Judgment.
The August 28, 2001 Order from this Court dismissed Plaintiff's claim for breach of the covenant of good faith and fair dealing, and dismissed Counts 1, 2, 6, 7, and 8 of Plaintiff s Complaint as they pertained to the individual defendants.
I. INTRODUCTION
We have before us the Motion by Defendant Sterling, Inc. for Summary Judgment and Memorandum, filed on April 25, 2003 ("Def. SJ Mot."), and the Brief by Plaintiff Karen Hartman in Opposition to Defendants' Motion for Summary Judgment, filed on August 29, 2003 ("Pl. Brief"), that includes Plaintiff's Supplemental Statement of Material Facts and Response To Defendants' Statement of Undisputed Facts.
II. BACKGROUND
To avoid redundancy, rather than setting forth a separate detailed discussion of the facts, we will briefly outline the facts surrounding the dispute here and later discuss the relevant details of the Plaintiff's case in connection with our legal determinations. We present the facts as Plaintiff alleges them in her brief. On or about September 1996, Plaintiff became manager of Sterling d/b/a Belden Jewelers (hereinafter "Sterling") store #314 located in Montgomery Mall in North Wales, Pennsylvania. Defendant Jay Thadani was the District Manager of that store, among others, and Plaintiff's immediate supervisor. Mr. Thadani and Ms. Hartman thereafter commenced a short-lived relationship. Soon after the relationship began, however, Defendant began making inappropriate comments to Ms. Hartman, in sum and substance threatening that he would "take care" of her, and would "destroy" and "fire" her if she did not sleep with him. As time progressed, Defendant's harassment became increasingly hostile and menacing, and continued well after Ms. Hartman ended the relationship in March 1997. Although other employees had previously lodged complaints with Sterling regarding Mr. Thadani's harassment, the Defendant was not discharged at that time. Instead, he bragged to the Sterling employees, including Ms. Hartman, that he was "untouchable" and that those who filed complaints against him would pay. Defendant's unrelenting harassment of the Plaintiff caused her health and emotional well-being to suffer.
Plaintiff did not formally enter a complaint concerning Mr. Thadani's behavior to the appropriate Sterling personnel until January 1998, when she spoke with Defendant Peter Slaynasky, the then Vice-President of Operations. An investigation conducted by Sterling revealed harassment that other Sterling employees were forced to endure under Mr. Thadani's supervision. Sterling discharged Mr. Thadani on January 16, 1998.
Sterling chose Defendant Michael Kestin to supercede Mr. Thadani as the District Manager. Immediately after being introduced to his store managers, including Ms. Hartman, Mr. Kestin stated that he was friends with Mr Thadani. He further revealed that he consulted with Mr. Thadani on each and every manager. Plaintiff and Jill Sloboda, another store manager, expressed their fears of Mr. Kestin's retaliation to Mr. Slaynasky. Despite a warning from Mr. Slaynasky that the performance reviews of the store managers be conducted without consulting Mr. Thadani, Defendant Kestin continually boasted of his friendship with Defendant Thadani to his employees.
Mr. Kestin was repeatedly hostile to Ms. Hartman. In addition to refusing to return
Plaintiff's business calls, refusing to tell Plaintiff what her raise would be in March 1998, and issuing a written employee counseling report to Plaintiff in April 1998 for her store's low sales performance in March, an uncommon practice at Sterling, Mr. Kestin screamed, berated, and chased Plaintiff in the Montgomery Mall after a diamond show conducted by her store failed to meet his expectations. During this altercation, Mr. Kestin told Plaintiff that she should quit. Unlike the shows managed by any other Sterling stores, the date for store #314's VIP show was advanced by several months in 1998, and the sales quota for the store's VIP show was almost doubled.
Sterling initiated an investigation after an employee of store #314 complained to human resources about Mr. Kestin's harassment of Ms. Hartman. Although Plaintiff persistently attempted to schedule a meeting regarding Mr. Kestin's behavior with Joe Beck, the individual who succeeded Mr. Slaynasky as the Vice-President of Operations, the meeting never materialized. On May 6, 1998, Ms. Hartman tendered her resignation to Joe Beck. Despite promising otherwise, Mr. Beck never contacted Ms. Hartman, and thus she told Mr. Kestin that her last day would be Saturday, May 9th. On that day, another store manager, acting pursuant to Mr. Kestin's direction, took Ms. Hartman's keys, indicating that she was no longer employed.
III. DISCUSSION
A. Statement of Jurisdiction
We have original, subject matter jurisdiction over Title VII claims under 28 U.S.C. § 1331. We may consider Plaintiff's common law claims by exercising our supplemental jurisdiction under 28 U.S.C. § 1367(a).
B. Summary Judgment Standard
The court shall render 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." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248, 106 S.Ct. 2505, 91 L.Ed.2d 202. All inferences must be drawn, and all doubts resolved, in favor of the non-moving party — in this case, Plaintiff. United States v. Diebold. Inc., 369 U.S. 654, 655, 82 S.Q. 993, 8 L.Ed.2d 176 (1962); Gans v. Mundy. 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010, 106 S.Q. 537, 88 L.Ed.2d 467 (1985). On a motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett. 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and would support a favorable jury finding. Id. at 321 n. 3, 106 S.Ct. 2548, 91 L.Ed.2d 265 (quoting Fed.R.Civ.P. 56(e)); Anderson. 477 U.S. at 248-49, 106 S.Ct., 2505, 91 L.Ed.2d 202; see First Nat'l Bank of Pennsylvania v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The party opposing summary judgment may not rest upon mere allegations or denials, but must set forth specific facts, presenting affirmative evidence showing that there is a genuine issue for trial. Anderson. 477 U.S. at 256-57, 106 S.Ct. 2505, 91 L.Ed.2d 202.
In discrimination cases, proof at summary judgment follows a well-established "burden-shifting" approach first articulated in McDonnell Douglas Corp. v. Green. 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d668 (1973). Once a plaintiff has established at prima facie case of discrimination or retaliation, the defendant must rebut an inference of wrongdoing with evidence of a legitimate, non-discriminatory, non-retaliatory reason for the action taken. Weston v. Commonwealth of Pennsylvania. 251 F.3d 420, 432 (3d Cir. 2001); Delli Santi v. CNA Ins. Co., 88 F.3d 192, 199 (3d Cir. 1996). If a defendant successfully meets its burden in a discrimination or retaliation case, then in order to avoid summary judgment, Plaintiff must present evidence of pretext, or cover-up, or show that discrimination played a role in the employer's decision-making and had a determinative effect on the outcome. Weston. 251 F.3d at 432: Fuentes v. Perskie. 32 F.3d 759, 764 (3d Cir. 1994).
Notwithstanding the non-moving party's burden, the Third Circuit urges special caution about granting summary judgment to an employer when its intent is at issue, particularly in discrimination cases. Goosby v. Johnson Johnson Medical. Inc., 228 F.3d 313, 321 (3d Cir. 2000).
C. Title VII Claims
Title VII "makes it unlawful for any employer`to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex.'" Suders v. Easton. 325 F.3d 432, 441 (3d Cir. 2003) (citing 42 U.S.C. § 2000e-2(a)(1)). In Meritor Savings Bank. FSB v. Vinsoa 477 U.S. 57, 65-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the Supreme Court recognized that an employee alleging sexual harassment has a cause of action under Title VII if such harassment was either so pervasive as to create a hostile work environment and change the conditions of employment, or if the harassment constituted quid pro quo sexual discrimination. In the present case, Plaintiff alleges under Title VII hostile work environment sexual discrimination, quid pro quo sexual harassment, and retaliation by Defendants' through adverse actions taken against her in the terms and conditions of her employment. We consider each of Plaintiff s Title VII claims in turn.
1. Hostile Work Environment Sexual Harassment
The Supreme Court has "repeatedly made clear that although the statute [Title VII] mentions specific employment decisions with immediate consequences, the scope of the prohibition is not limited to economic or tangible discrimination and that it covers more than`terms' and `conditions' in the narrow contractual sense." Faragher v. City of Boca Raton. 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal quotations and citations omitted). The Court thus recently reiterated that sexual harassment so "severe or pervasive" as to "alter the conditions of [the victim's] employment and create an abusive working environment" violates Title VII. Clark County School District v. Breedon. 532 U.S. 268, 270, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (citing Faragher. 524 U.S. at 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (quoting Meritor Savings Bank. FSB v. Vinson. 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). Specifically, the Third Circuit has promulgated a four part test for determining whether a sexually hostile work environment exists. A plaintiff must prove that (1) the employee suffered intentional discrimination because of her sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the employee; and (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position. Suders. 325 F.3d at 441 (citing Andrews v. City of Philadelphia. 895 F.2d 1469, 1482 (3d Cir. 1990)). The Third Circuit has further directed that these factors be examined as a whole. Because it is difficult to ascertain motives in a discrimination suit, "a discrimination analysis must concentrate not on individual incidents, but on the overall scenario."Id. at 442. Thus, we judge whether an environment is sufficiently hostile or abusive to fall within the ambit of Title VII by analyzing "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."Faragher. 524 U.S. at 787-788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (quotingHarris v. Forklift Systems. Inc., 510U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d295 (1993)). Based upon our analysis of the Suders factors below, we find Ms. Hartman has presented compelling evidence sufficient to raise genuine issues of material fact on her claim of a sexually hostile work environment.
a. Intentional Discrimination Because of Sex
Intentional discrimination is implicit in cases involving "sexual propositions, innuendo, pornographic materials, or sexual derogatory language." Suders. 325 F.3d at 441 (quoting Andrews. 895 F.2d at 1482 n. 3). In these cases, discrimination "should be recognized as a matter of course." Id. The Third Circuit explains, however, that "[t]o constitute impermissible discrimination, the offensive conduct is not necessarily required to include sexual overtones in every instance or that each incident be sufficiently severe to detrimentally affect a female employee." Andrews. 895 F.2d at 1485 (emphasis added). Moreover, a plaintiff need not demonstrate direct evidence of the alleged harasser's motivation for discrimination against her. See Abramson v. William Paterson College of New Jersey. 260 F.3d 277, 278 (3d Cir. 2001). This first prong does not require the factfinder "to peer inside the harasser's mind," but "merely requires a showing that the offender's behavior was . . . based on a protected category." Because "discrimination is often masked in more subtle forms, it is often difficult to discern discriminatory animus" and "with respect to certain conduct, the intent to discriminate can be inferred." Id. (internal quotations and citations omitted).
Plaintiff has marshaled enough evidence to demonstrate that there exists a genuine issue of material fact as to this element. It is clear that despite the consensual nature of Ms. Hartman's short-lived sexual relationship with Mr. Thadani, she was subject to his unwelcome sexual propositions, sexual innuendo, and derogatory comments both during and after her termination of it. As the relationship progressed, Mr. Thadani threatened Plaintiff repeatedly that he would destroy her and would fire her if she did not sleep with him. Moreover, he claimed that he was untouchable, and would "take care of Ms. Hartman if she refused to comply with his demands. After Plaintiff ended the relationship, she alleges that Mr. Thadani stated to numerous other employees that he was going to fire her because she was a "fucking bitch" and "any fucking bitch that goes against him is getting fired." Apparently, this comment was reiterated numerous times. Mr. Thadani told Plaintiff that she was disloyal in his view because she refused to sleep with him. Towards the end of Mr. Thadani's time with Sterling, he began calling Plaintiff a "fucking bitch" multiple times to her face. Because she refused to acquiesce in his demands, including remaining sexually involved, Mr. Thadani proceeded to call Plaintiff a "whore" who slept around with everybody, and a troublemaker. Contrary to the Defendants' contention, that Mr. Thadani's threats and hostility were meted out to some male employees as well does not diminish the sexually based nature of his behavior towards the Plaintiff. Undoubtedly, Plaintiff has set forth evidence that her work environment was rife with sexually charged hostility,
b. Pervasiveness and Regularity of Conduct
It is well established that "Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule and insult." Meritor Sav. Bank. 477 U.S. at 65, 106 S.Ct. 2399, 91 L.Ed.2d 49. Yet it is well established that sexual harassment is only actionable if the workplace is "permeated with discriminatory intimation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Systems. Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). In short, pervasive and regular discrimination requires that the "incidents of harassment occur either in concert or with regularity." Andrews. 895 F.2d at 1484 (quotations and citations omitted).
Construing the record in the light most favorable to Plaintiff, we find that it does give rise to a triable issue of fact concerning the pervasiveness and regularity of the acts that allegedly constituted a hostile work environment. The comments and incidences described above occurred with ongoing regularity from September 1996, when Plaintiff first encountered Mr. Thadani, until January 1998, when Sterling terminated Mr. Thadani's employment. The following exchanges made at Plaintiff's deposition are telling:
[Attorney Khan]
Q. So during the approximately five or six months that you were involved in a relationship with Jay Thadani, he was threatening you to [sic] whole time?
[Plaintiff]
A. Yes.
Q. And did he ever say to you, if you don't sleep with me I will fire you?
A. Yes.
Q. When did he tell you that?
A. He told me that, I don't know a date, but, I mean, that was said numerous times.
(Dep. Pit. p. 35).
[Attorney Khan]
Q. Did he [Thadani] say, you end the relationship with me I'm going to fire you?
[Plaintiff]
A. No, he didn't say those exact words to me. But they were said to other people, that I was getting fired.
Q. Because you ended the relationship?
A. No. Because I was a fucking bitch, and any fucking bitch that goes against him is getting fired.
Q. Well, when did you first get wind that he made that comment?
A. He made that comment repeatedly. I couldn't even — he said it so many times I couldn't even tell you what the exact time was.
(Dep. Plt. p. 114).
[Attorney Khan]
Q. So, he called you a fucking bitch, to your face, one time?
[Plaintiff]
A. I'm sure he's done it numerous times but I couldn't tell you each specific time.
Q. How many time [sic] did he tell you, personally, that you would be fired?
A. None. Actually, I think I answered that wrong. When he — towards the end, when he was actually planning on firing me is what I'm thinking of, he didn't say it at all. But he had told me, like all during the year, that if I didn't do what he said I would be fired. And that was multiple, multiple times, twenty, thirty.
(Dep. Plt. pp. 119-120). Although this brief recount does not catalog all of the opprobrious conduct alleged, it is sufficient to show that a reasonable jury could find that the harassment Plaintiff was forced to endure was repeated and systematic, regardless of Defendants' contention that Mr. Thadani ignored Plaintiff. Indeed, Mr. Thadani's constant harassment of Plaintiff and other employees affected Ms. Hartman's health and emotional well being to the point that she started to have thoughts of suicide.
c. Subjectively Offensive
In evaluating detrimental effect, a court must undertake a subjective examination of whether the particular plaintiff was demonstrably injured. Suders 325 F.3d at 441 (citing Andrews. 895 F.2d at 1483). However, "[s]o long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious." Harris. 510 U.S. at 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (internal citation omitted).
It is obvious that Plaintiff has satisfied her burden with respect to this subjective inquiry. In addition to contemplating suicide and seeking psychological counseling as a result of her experience working under Mr. Thadani, Plaintiff contends that she "feared for my job, my reputation as well as my safety because of Mr. Thadani's threats." Plaintiff found Mr. Thadani's sexually derogatory comments "offensive." He was abusive, manipulative and highly obsessed with "loyalty." Ms. Hartman described him as looking for complete loyalty and having a "gang mobster mentality, barring killing people for him." There is no question that Plaintiff has proved the existence of a genuine issue of material fact regarding her subjective perception of an abusive environment.
d. Objectively Offensive
Finally, we must decide whether a reasonable woman would have been offended by the actions and remarks of Mr. Thadani such that it altered her working conditions. Unlike the third factor, this last factor injects objectivity to ensure that employers are strictly liable for harassment conducted by their employees only when the work environment is hostile from the viewpoint of a reasonable person. Andrews. 895 F.2d at 1483. Notably, "[e]vidence that others were harassed may tend to show that a plaintiff's claims are objectively reasonable." West v. Philadelphia Elec. Co., 45 F.3d 744, 757 (3d Cir. 1995); see also Hall v. Gus Construction Co., 842 F.2d 1010 (8th Cir. 1988) ("[E]vidence of sexual harassment directed at employees other than the plaintiff is relevant to show a hostile work environment."); Hicks v. Gates Rubber Co. 833 F.2d 1406, 1415-1416 (10th Cir. 1987) ("Evidence of a general work atmosphere therefore-as well as evidence of specific hostility directed toward the plaintiff-is an important factor in evaluating the claim.").
Plaintiff's contentions satisfy the objective inquiry because other Sterling employees reported that they found Mr. Thadani's behavior abusive and inappropriate, and described his impact on the work environment as very negative and hostile. Significantly, the 1998 investigation that prompted Mr. Thadani's termination concluded that he "repeatedly harassed, intimidated, and threatened female ee's [employees] in his district and his behavior was witnessed and verified by numerous ee's who signed statements. Verified allegations included sexual relations with subordinates, threatening subordinates' jobs, gross misconduct, profanity, soliciting prostitutes at a company function and sending provocative e-mail messages to at least one female subordinate." In addition to investigating past complaints regarding Mr. Thadani's inappropriate harassment prior to his encounter with Plaintiff, about which he later bragged to Plaintiff and others, Sterling instituted an investigation in May 1997 in response to allegations that Mr. Thadani was sexually harassing a female employee named Sheryl Levine. When human resources interviewed Ms. Hartman in connection with their investigation, Mr. Thadani called Plaintiff at her store every ten to fifteen minutes and threatened to ruin her if she did not say the "right things." During this investigation, human resources interviewed several employees, including manager Jill Sloboda, who described Mr. Thadani's inappropriate behavior, vulgar language and sexual escapades. Tammy Ramer, an employee of store #314 from Summer 1997 through Spring 1998, explained that "Jay's conversations were constantly filled with sexual connotations about women, women's clothing, and his sexual conquests."
We believe that a reasonable woman would have been offended by the environment at Sterling.
In light of the foregoing analysis, we deny Defendants' summary judgment motion as to Plaintiff's Title VII hostile work environment sexual discrimination.
2. Quid Pro Quo Sexual Harassment
To prove quid pro quo sexual harassment, the Third Circuit requires a plaintiff to show that her response to unwelcome sexual advances or other verbal or physical conduct of a sexual nature was subsequently used as a basis for a decision about compensation, terms, conditions, or privileges or employment. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281-82 (3d Cir. 2000) (citing Robinson v. City of Pittsburgh. 120 F.3d 1286, 1296-97 (3d Cir. 1997)). To satisfy her burden, the plaintiff must demonstrate that the consequences flowing from her response to the sexual advances were sufficiently severe so as to alter her "compensation, terms, conditions, or privileges of employment," Robinson. 120 F.3d at 1296-97 (quoting 42 U.S.C. § 2OOOe-2 (a)(1)) or to "deprive or tend to deprive [him or her] of employment opportunities or otherwise adversely affect his [or her] status as an employee." Id. (quoting 42 U.S.C. § 2000e-2(a)(2)). In particular, a plaintiff can satisfy this showing by either of two methods. While subsection (1) of 29 C.F.R. § 1604.11 (a) addresses the scenario in which an employee is told beforehand that some condition, term, privilege or compensation will be affected depending on his or her response to unwelcome sexual advances, subsection (2) of that provision concerns those cases in which the employee's response to unwelcome sexual advances is thereafter used as a basis for a decision concerning a term, etc. of employment. The facts surrounding Ms. Hartman's situation implicate the former provision.
Under the former approach, "the quid pro quo violation occurs at the time when an employee is told that his or her compensation, etc. is dependent upon submission to unwelcome sexual advances" because "[a]t that point, the employee has been subjected to discrimination because of sex." Robinson. 120 F.3d at 1297. First, Plaintiff has raised a genuine issue of material fact as to the unwelcome nature of Mr. Thadani's advances. While Ms. Hartman admitted to having sex with Mr. Thadani on only one occasion soon after she met him, she alleges that she spent much of the remainder of the "relationship" trying to avoid his sexual advances. She made excuses anytime Mr. Thadani attempted to meet with her on a social level. Second, Mr. Thadani's repeated threats that he would fire and destroy Plaintiff if she did not sleep with him certainly constitutes conditioning a term of employment upon submission. Finally, and importantly, the Third Circuit has stated that "there is a violation under subsection (1) even if the employee rebuffs the advances and his or her compensation, terms, conditions, or privileges of employment are not in fact altered, i.e. even if the supervisor does not follow through on his threat." Thus, that Mr. Thadani never actually fired Plaintiff is of no moment. It is the threat itself that is sufficient to constitute discrimination pursuant to this theory under Title VII. We find that Plaintiff has successfully met her burden on summary judgment with respect to her quid pro quo sexual harassment claim. Defendants' motion for summary judgment as to this claim is denied.
3. Retaliation Claim
a. Burden Shifting Framework
Title VII prohibits retaliation against employees who engage in a protected activity such as stating a claim of discrimination. See 42 U.S.C. § 2000e-3(a); Durham Life Ins. Co. v. Evans. 166 F.3d 139, 157 (3d Cir. 1999). Where a Title VII plaintiff does not rely on direct evidence of discrimination or retaliation but instead presents indirect evidence, the familiar burden-shifting test articulated in McDonnell Douglas Corp. v. Green. 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) applies. See Walden v. Georgia-Pacific Corp., 126 F.3d 506, 512 (3d Cir. 1997) (explaining that where the evidence put forth by plaintiff is so revealing of retaliatory animus that it is unnecessary to rely on the McDonnell Douglas burden-shifting framework). Under the burden-shifting paradigm, a Title VII plaintiff must first "prove by a preponderance of the evidence that a prima facie case of discrimination exists. Second, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Third, if the defendant meets its burden, plaintiff must be given the opportunity to prove by a preponderance of the evidence that the legitimate reasons proffered by the defendant were not its true reasons, but rather, a pretext for discrimination." Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 637-38 (3d Cir. 1993) (internal quotations and citations omitted). Although the burden of production shifts, the ultimate burden of persuasion remains with the plaintiff at all times. See Barber v. CSX Distrib. Servs., 68 F.3d 694, 698 (3d Cir. 1995).
b. Prima Facie Case
To advance a prima facie case of retaliation, the Third Circuit requires that a plaintiff demonstrate that (1) the employee engaged in a protected activity; (2) the employer took an adverse employment action after or contemporaneous with the employee's protected activity; and (3) a causal link exists between the employee's protected activity and the employer's adverse action. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000). Ms. Hartman contends that after she filed her complaint against Mr. Thadani with Peter Slaynasky, Sterling retaliated by hiring Michael Kestin as Mr. Thadani's replacement, and by altering the terms and conditions of her employment.
It is undisputed that Plaintiff's complaint to Peter Slaynasky constitutes protected activity under Title VII. An acceptable form of protected activity under Title VII are informal protests of discriminatory employment practices, including making complaints to management. See. e.g., Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). The Defendants' do not challenge this.
Plaintiff also succeeds in raising a genuine issue that adverse actions were taken against her after or contemporaneously with the protected activity. Retaliatory conduct constitutes "adverse employment action" under Title VII only if it "alters the employee's`compensation, terms, conditions, or privileges of employment,' deprives him or her of `employment opportunities,' or`adversely affect[s] his [or her] status as an employee.'" Robinson. 120 F.3d at 1300. Consequently, "`not everything that makes an employee unhappy' qualifies as retaliation, for`[o]therwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a [retaliation claim].'" Id. (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)). Thus, "unsubstantiated oral reprimands" and "unnecessary derogatory comments" do not rise to the level of adverse employment action. Id.
Plaintiff has produced evidence regarding a number of alleged retaliatory acts. First, Plaintiff notes that Sterling chose Michael Kestin, an admitted "best friend" of Mr. Thadani who consulted him about each and every manager, to replace Mr. Thadani. Second, Plaintiff points to the hostile and discriminatory work environment fostered by Mr. Kestin. Mr. Kestin constantly antagonized Plaintiff. Indeed, Plaintiff alleges that every encounter with Mr. Kestin was hostile. In addition to repeatedly making comments about his relationship to Mr. Thadani, and how Mr. Thadani told him which employees not to trust, Mr. Kestin verbally assaulted Plaintiff in the middle of a public mall. Third, unlike any of the other Sterling stores in Mr. Kestin's district, and contrary to past practice, the special event show at Ms. Hartman's store was advanced by approximately three months, and her quota for that show was almost doubled. Fourth, Plaintiff alleges that the Employee Counseling Report issued by Mr. Kestin was retaliatory. While Defendants' note that the report was issued in response to Plaintiff's failure to meet her sales quota in the month of March, Plaintiff alleges that issuing such a report for one poor month was essentially unheard of at Sterling. This is corroborated by the declarations of another manager. While Mr. Kestin did give another Employee Counseling Report for failure to meet March quotas to another manager, there were still other managers who did not receive counseling reports despite failing to meet quotas for several months. Fifth, plaintiff alleges that she was constructively discharged from Sterling. See infra at Section C4.
With the possible exceptions of constructive discharge, see Childress v. Dover Downs. 2000 WL 376419, *12 (D.Del 2000) ("Constructive discharge may be an adverse employment action") (citing Durham Life Ins. Co. v. Evans. 166 F.3d 139, 149 (3d Cir. 1999)), and the change in Plaintiff's' show dates and quotas, see Mondelewski v. Pathmark Stores. Inc., 162 F.3d 778, 788 (3d Cir. 1998) ("Assigning an employee to an undesirable schedule can be more than a `trivial' or minor change in the employee's working conditions"), the Defendants' correctly assert that the individual acts that Plaintiff complains about do not, taken alone, constitute adverse employment action under Title VII. But, the Third Circuit has emphasized that courts should not analyze the employer's individual acts in isolation, but rather should examine the acts collectively in deciding whether there has been adverse employment action. Shaner v. Synthes (USA). 204 F.3d 494, 503 n. 9 (3d Cir. 2000). For instance, in Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997), the court held that: "As a matter of law, [the defendant's] conduct, which included reduction of duties, disciplinary action and negative personnel reports, as well as required remedial training, constituted adverse employment action." Thus, in viewing all of the actions cited by Plaintiff collectively, and drawing all inferences in favor of Plaintiff, as we must, we find that sufficient evidence exists to establish a genuine issue of adverse employment action.
These acts-constructive discharge and change in schedule-may alone each constitute an adverse employment action.
Lastly, Plaintiff also succeeds in establishing the necessary causal link to make out her prima facie case. Third Circuit caselaw focuses primarily on two elements in finding the requisite causal link for a retaliation claim: timing and evidence of ongoing antagonism. Abramson v. William Patterson College of New Jersey. 260 F.3d 265, 288 (3d Cir. 2001); Farrell. 206 F.3d at 281. Unless the temporal proximity is "unusually suggestive," it, taken alone, is insufficient to establish the necessary connection. Farrell. at 280; see Jalil v. Avdel Corp., 873 F.2d 701 (3d Cir. 1989) (reversing summary judgment in favor of the defendant because "the plaintiff had established causation for the purposes of his prima facie case merely by showing that his discharge occurred only two days after his employer had received notice of Jalil's EEOC claim."). In such instances, timing plus other evidence is the appropriate test. While the additional evidence usually encompasses a "pattern of antagonism" following the protected conduct, it is clearly not limited to that. Rather, any circumstantial evidence that supports the inference can be used to substantiate a causal connection.Farrell. at 280-81.
The timing aspects of Plaintiff's case, while not "unusually suggestive" clearly support a causal connection. Mr. Kestin, an admitted close friend of Mr. Thadani's, became district manager of Plaintiff's store immediately after Mr. Thadani was fired on account of Plaintiff's complaints. It was between the time that Mr. Kestin assumed the district manager's position and the time when Plaintiff left Sterling, a period of only three months, that all of the alleged adverse employment acts occurred. It was during this brief time period that Plaintiff suffered the ongoing antagonism of Mr. Kestin, as referenced above. She is unable to recall one single conversation she had with Mr. Kestin that was not hostile. Plaintiff, however, is not entitled to this favorable inference of causation unless she can demonstrate that Michael Kestin knew of her protected activity when he took adverse action against her. Jones v. School Dist. of Philadelphia. 198 F.3d 403, 415 (3d Cir. 1999) (affirming district court's grant of summary judgment where "the district court found that [the plaintiff]`produced no evidence which could in any way be construed as showing any knowledge on the part of either [decision maker] of [the plaintiff's] previous EEOC filings.'"). It is true that Michael Kestin never relayed to Plaintiff that he knew of her prior complaint against Mr. Thadani. But, using her and Sterling manager Jill Sloboda's Declarations, Plaintiff has alleged that Michael Kestin's very initial remarks to the managers referenced his close friendship with Jay Thadani, and emphasized how he had already spoken to Mr. Thadani about each and every one of them. Indeed, throughout the time Mr. Kestin served as Plaintiff's supervisor, he repeatedly commented upon his close relationship with Mr. Thadani, stressing how they had discussed which managers could and could not be trusted. Mr. Kestin went so far as to brag to Ms. Hartman that he dined with Jay Thadani on a regular basis. Moreover, the circumstances of Mr. Thadani's termination were common knowledge at Sterling. All Plaintiff must show at this stage is that there exists a genuine issue of material fact. Drawing all inferences in her favor, we find that she has succeeded with respect to establishing a causal connection.
c. McDonnell-Douglas Burden-Shifting Paradigm
Plaintiff's establishment of a prima facie claim of retaliation creates a legally mandatory rebuttable presumption. McDonnell Douglas Corp. v. Green. 411 U.S. 792, 93 S.Ct. 1817, 26 L.Ed.2d 668 (1973); Texas Dep't of Cmty. Affairs v. Burdine. 450 U.S. 248, 254 n. 7, 101 S.Ct., 1089, 67 L.Ed.2d 207 (1981). The presumption of retaliation that arises shifts the burden of production to the employer to rebut the prima facie case by producing "clear and reasonably specific" evidence that its actions were taken for legitimate, non-retaliatory reasons. Burdine. 450 U.S. at 258, 101 S.Ct. 1089, 67 L.Ed.2d 207. Placing the burden of production on the employer serves to rebut Plaintiff's prima facie case and to "frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to establish pretext." Id. 450 U.S. at 255-56, 101 S.Ct. 1089, 67 L.Ed.2d 207.
Defendants' have countered with a legitimate, non-retaliatory reason for Sterling's issuance of the Employee Counseling Report, claiming that Plaintiff received the report because of her store's poor performance in March. Defendants' fail, however, to articulate any legitimate reasons for the remaining adverse employment actions described above, and thus we believe for the purposes of this Motion Defendants' have failed to meet their burden of production.
Even assuming, however, that Defendants' have met their burden, Plaintiff here has met her rebuttal burden of proving by a preponderance that "the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination [retaliation]." Burdine. 450 U.S. at 253, 254 n. 7, 101 S.Ct., 1089, 67 L.Ed.2d 207. So long as plaintiff produces sufficient evidence of pretext, she need not produce additional evidence of retaliatory discrimination beyond her prima facie case to proceed to trial. See Sempier v. Johnson Higgins. 45 F.3d 724, 731 (3d Cir. 1995). The Third Circuit has found that various factors, such as the defendant's credibility, the timing of an employee's dismissal and the employer's treatment of the employee, can raise an inference of pretext which would render summary judgment for the employer inappropriate. Josey v. Hollingsworth Corp., 966 F.2d 632, 638-39 (3d Cir. 1993).
Taken in toto, we believe the circumstantial evidence Plaintiff has adduced demonstrates that the employer's proffered reason is unworthy of credence. Sheridan v. E.I. Dupont de Nemours Co. 100 F.3d 1061 (1996), cert. denied, 521 U.S. 1129, 117 S.Ct. 2532, 138 L.Ed.2d 1031 (1997); Fuentes v. Perskie. 32 F.3d 759, 764 (3d Cir. 1994). The Third Circuit has endorsed two means by which a plaintiff can show that a defendant's proffered reason is unworthy of belief: (1) discrediting the proffered reasons, either circumstantially or directly, or (2) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action. Sheridan. 100 F.3d at 1067 (quoting Fuentes. 32 F.3d at 764). In the present case, Plaintiff's evidence satisfies her burden through showing that retaliation was more likely than not the motivation behind Mr. Kestin's adverse actions.
Accordingly, Defendants' summary judgment motion as to Plaintiff's Title VII retaliation claim is denied.
4. Respondeat Superior Liability
Plaintiff succeeds in making out the existence of respondeat superior liability. In Title VII actions, employers are not automatically liable for sexual harassment caused by their supervisors. Meritor. 477 U.S. at 72, 106 S.Ct. 2399, 91 L.Ed.2d 49. "Nevertheless, where a hostile work environment is created by an immediate or successively higher supervisor, a prima facie case of vicarious liability by the employer exists per se." Koschoff v. Henderson. 109 F. Supp.2d 332 (E.D.Pa. 2000). Plaintiff succeeds in making out a prima facie case of vicarious liability because Mr. Thadani was a District Manager for Sterling, and Plaintiff's direct supervisor.
Sterling cannot successfully avail itself of the Ellerth-Faragher affirmative defense for the simple reason that it is not available in this case. The law is clear that tangible job detriment is not always necessary to establish a claim of hostile working environment sexual harassment, but that tangible job detriment will conclusively establish vicarious liability for a supervisor's sexual harassment — conduct that normally falls outside the scope of his employment. Durham Life Ins. Co. v. Evans. 166 F.3d 139, 150-51 (3d Cir. 1999) (citing Burlington Industries. Inc. v. Ellerth. 524 U.S. 742, 763, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton. 524 U.S.775, 118 S.Ct.2275, 141 L.Ed.2d 662 (1998)). Only if there is no tangible job detriment alleged, or no genuine issue as to the existence of a tangible job detriment, may a defendant prevail by asserting the affirmative defense that it took reasonable care to prevent and correct incidents of sexual harassment and that the plaintiff failed to avail herself of the defendant's protective mechanisms. Id.
"Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates" thereby justifying imposition of vicarious liability. Ellerth. 524 U.S. at 762, 118 S.Ct. 2257, 141 L.Ed.2d 633. The Supreme Court has defined a "tangible employment action" as one that constitutes "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id. at 761, 118 S.Ct. 2257, 141 L.Ed.2d 633. The Third Circuit has further held that "a constructive discharge, when proved, constitutes a tangible employment action within the meaning of Ellerth and Faragher. Consequently, when an employee has raised a genuine issue of material fact as to a claim of constructive discharge, an employer may not assert, or otherwise rely on, the affirmative defense in support of its motion for summary judgment."Suders. 325 F.3d at 435.
Viewing the record in the light most favorable to Plaintiff, we find that she has raised a genuine issue of material fact as to her contention that she has been constructively discharged. A constructive discharge occurs when an "employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign." Goss v. Exxon Office Systems. 747 F.2d 885, 888 (3d Cir. 1984). Although the Third Circuit has rejected an "aggravated circumstances" requirement, it has advised that a plaintiff claiming constructive discharge must "demonstrate that the alleged discrimination surpasses`a threshold of intolerable conditions.'"See Duffy v. Paper Magic Group. Inc., 265 F.3d 163, 169 (3d Cir. 2001). InClowes v. Allegheny Valley Hospital. 991 F.2d 1159, 1161 (3d Cir.), cert. denied, 510 U.S. 964, 114 S.Ct. 441, 126 L.Ed.2d 374 (1993), the Third Circuit articulated several factors pertinent to the constructive discharge inquiry: (1) a threat of discharge; (2) suggestions or encouragement of resignation; (3) a demotion or reduction of pay or benefits; (4) involuntary transfer to a less desirable position; (5) alteration of job responsibilities; (6) unsatisfactory job evaluations. The court cautioned, however, that the list was illustrative, and not exhaustive. Id.; see also Duffy. 265 F.3d at 168 ("[W]e have never made the Clows factors an absolute requirement for recovery. . . . The absence of the factors in Clows is not necessarily dispositive."). Thus, "a plaintiff-employee alleging a constructive discharge in violation of Title VII must establish the convergence of two factors: (1) he or she suffered harassment or discrimination so intolerable that a reasonable person in the same position would have felt compelled to resign . . . and (2) the employee's reaction to the workplace situation-that is, his or her decision to resign — was reasonable given the totality of circumstances; as to this factor, although it is relevant whether the employee explored alternative avenues to resolve the alleged discrimination before resigning, a failure to do so will not defeat a claim of constructive discharge where the working conditions were so intolerable that a reasonable person would have concluded that there was no other choice but to resign." Suders. 325 F.3d 432, 445-46. When a plaintiff meets this burden, "a constructive discharge operates as the functional equivalent of an actual termination." Id.
Many of the circumstances that support a constructive discharge claim are present in this case. Plaintiff was subject to a threat of discharge by both Mr. Thadani, who repeatedly threatened to fire her if she refused to have sex, and Mr. Kestin, who threatened to terminate her if she walked out of the store during their altercation at the VIP show in February 1998. During this same altercation, Mr. Kestin had also encouraged Plaintiff to quit, and expressed his happiness when Plaintiff actually tendered her resignation. Plaintiff was also forced to hold her store's show months in advance without explanation, and at a sales quota that was almost doubled from the year before. It is notable that all of these actions occurred in an environment permeated with Mr. Kestin's constant harassment of Plaintiff. Finally, it is relevant to our inquiry that Plaintiff attempted several times to discuss her concerns and problems with Joe Beck, who had replaced Peter Slaynasky at human resources, before ultimately tendering her resignation. Mr. Beck broke several promises to meet with plaintiff.
Plaintiff has adequately alleged a claim of constructive discharge. As a result, Sterling is precluded from asserting their Ellerth-Faragher affirmative defense.
D. Breach of Contract Claim
Plaintiff alleges that an employment contract was created between herself and Sterling, governed by the terms of Sterling's Employee Handbook. She further contends that Sterling breached the sexual harassment provision of that alleged contract. In light of the analysis below, we disagree and find that no contractual relationship was formed between Plaintiff and Sterling that altered the employment "at-will" presumption employed in Pennsylvania.
Pennsylvania is an employment at-will state, and there is a strong presumption that any employment relationship is at-will, meaning that employers may discharge an employee at any time, for any reason, or for no reason at all. Shick v. Shirev. 552 Pa. 590, 716 A.2d 1231 (1998);Darlington v. General Elec., 350 Pa.Super. 183, 504 A.2d 306 (1986), overruled on other grounds in Kraisa v. Keypunch. Inc., 622 A.2d 355 (Pa.Super. 1993); Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974).
Sterling's Employee Handbook outlines various guidelines for the employment relationship. These guidelines govern topics including wages, smoking, telephone calls, sexual harassment, etc. Significantly, the very first page of the handbook contains the following contractual disclaimer:
Although the Employee Handbook is intended to generally set forth guidelines for your employment, it does not constitute a contract of employment for any fixed period of time, either expressly or by implication. Sterling Inc. Reserves the right to change or modify any of the benefits and/or employment guidelines set forth in this booklet. Changes to Sterling's policies and benefits and/or employment guidelines may be made only by a member of the Executive Committee and must be in writing.
(Def. Ex. 5, p. 1).
An employment handbook constitutes a contract enforceable against an employer if a reasonable person in the employee's position would interpret its provisions as illustrating the employer's intent to overcome the at-will rule and be legally bound by the representations contained in the book. Bauer v. Pottsville Area Emergency Med. Serv., 758 A.2d 1265, 1269 (Pa.Super.Ct. 2000). The handbook must clearly indicate that the employer meant to supplant the at-will rule. Id. (citing Luteran v. Loral Fairchild Corp., 455 Pa.Super. 364, 688 A.2d 211, 214-15 (1997)). This is because "[a]n employee handbook or manual only forms the basis of an implied contract if the employee shows that the employer affirmatively intended that it do so." Mercante v. Preston Trucking Co., 1997 U.S. Dist. LEXIS 7493, at *6-7 (E.D. Pa. 1997). The mere fact that the employer distributed the handbook, or that the employee believed the handbook was legally binding cannot give rise to the presumption that an employer intended to be legally bound. Generally, explicit disclaimers of contract formation in an employee handbook preclude a breach of contract claim. Landmesser v. United Air Lines. Inc., 102 F. Supp.2d 273, 280 (E.D. Pa. 2000) ("This explicit disclaimer of the formation of a contract nullifies plaintiff's
claim for breach of contract."); Ruzicki v. Catholic Cemeteries Ass'n of Diocese of Pittsburgh. 416, Pa.Super. 37, 42, 610 A.2d 495, 498 (1992) ("Given the explicit disclaimer stating that the handbook does not effect an employee's at-will status, . . . [the plaintiff] faces an insurmountable burden in arguing that the handbook converts him from an at-will employee to one who can only be fired through the use of progressive discipline as articulated in the handbook"); see also Martin v. Capital Cities Media. Inc., 354 Pa.Super. 199, 218-220, 511 A.2d 830, 840-41 (1986) (holding that an employee handbook does not alter the presumption of at-will employment unless it contains specific language to that effect).
Sterling's handbook contains a clear, specific disclaimer of intent to be contractually bound. Plaintiff notes that the disclaimer is not set apart, nor put in different font or bolded. It does, however appear in the same font and size as the remaining introductory language on the very first page of the handbook. Contrary to Plaintiff's argument, the failure of the disclaimer to specifically use the words "at-will" is not fatal, given the clarity of the disclaimer. The cases cited by Plaintiff do not indicate otherwise. See Caucci v. Prison Health Services. Inc., 153 F. Supp.2d 605 (E.D. Pa. 2001); Landmesser. 102 F. Supp.2d 273 . The provision specifically states that it is not an employment contract. In short, a reasonable employee would not interpret the handbook's provisions as evidencing the employer's intent to be legally bound them. Indeed, Plaintiff admits that she understood herself to be an "at-will" employee of Sterling.
Because Plaintiff has not established a genuine issue of material fact as to whether the employee handbook constituted a contract, and because the law of Pennsylvania does not support a binding contract of employment, Defendant is entitled to summary judgment as a matter of law on Plaintiff's breach of contract claim.
E. Other Common Law Claims
Defendants' have moved for summary judgment on Plaintiff's remaining common law claims of negligent and intentional infliction of emotional distress, tortious interference with prospective continued employment, wrongful discharge, and negligent hiring and supervision, arguing that they are barred by a two year statute of limitations. For the reasons discussed below, we agree.
It is noted that Plaintiff has withdrawn her claims for negligent and intentional infliction of emotional distress. (Pl. Brief at 10). Our analysis renders this withdrawal inapposite.
In Pennsylvania, the statute of limitations for negligent and intentional infliction of emotional distress, tortious interference with prospective continued employment, wrongful discharge, and negligent hiring and supervision is two years. 42 Pa. C.S.A. § 5524. Plaintiff contends that Defendant Thadani's harassment continued through to January 1998, when he was discharged. She alleges that Defendant Kestin subsequently retaliated, leading to her constructive discharge in May 1998. Plaintiff instituted the instant lawsuit on May 29, 2001, approximately three years later.
While Plaintiff does not dispute that more than two years elapsed between the date of accrual and the filing of the instant action, she argues that the doctrine of equitable tolling should apply during the period when the EEOC and PHRC reviewed her claims. InJohnson v. Railway Express Agency, 421 U.S. 454, 465, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), the Supreme Court held that the statute of limitations for a § 1981 claim was not tolled by the processing of a Title VII claim before the EEOC. The logic of this decision has been extended by district courts in Pennsylvania. In Mincin v. Shaw Packing Co., 989 F. Supp. 710, 719 (W.D. Pa. 1997), the court held that "the Pennsylvania Supreme Court would not toll the statute of limitations for related state tort claims because of the pendancy of a discrimination charge before the PHRC/EEOC." See also Barron v. St. Joseph's Univ., 2002 U.S. Dist. LEXIS 12286 (E.D. Pa. 2002) (holding that plaintiff's state law claims were time-barred, and that equitable tolling did not apply);Bacone v. Philadelphia Housing Authority. 2002 U.S. Dist. LEXIS 9081 (E.D.Pa. 2001) (same). Plaintiff failed to bring her common law claims within the applicable limitations period. They are time-barred. We therefore grant summary judgment to the Defendants' with respect to these aforementioned common law claims.
An appropriate order follows.