In short, Bleiler has failed to identify any evidence that Hall and Sparks knew about his sexual harassment claim when they took adverse action against him. Indeed, the evidence in this record indicates that they did not know. Bleiler has therefore failed to establish the necessary causal link between any adverse action and protected activity. It is axiomatic that there can be no retaliation without knowledge. The cases demonstrating this principle are legion. See, e.g., Krouse, 126 F.3d at 505; Carter v. AT&T Broadband/Comcast, No. 06-22, 2008 WL 4137972, at *15 (W.D. Pa. Aug. 29, 2008); Fullman v. Potter, 480 F. Supp. 2d 782, 791 (E.D. Pa. 2007); Doe, 2007 WL 1074206, at *9; Dollar Bank, 2006 WL 895089, at *6; Iyer v. Everson, 382 F. Supp. 2d 749, 758 (E.D. Pa. 2005); Perpepchuk, 2000 WL 1372876, at *7; Jones v. Sch. Dist. of Phila., 19 F. Supp. 2d 414, 421 (E.D. Pa. 1998). The Defendant is entitled to summary judgment on Bleiler's retaliation claims.
Thus, she was not qualified to be a nurse at Jefferson when she was terminated.See Iyer v. Everson, 382 F. Supp. 2d 749 (E.D. Pa. 2005) (employee failed to show he was qualified for position that required an LLM in taxation, where he had neither completed nor was enrolled in LLM program in taxation); cf. Fiorentini v. William Penn Sch. Dist., 150 F. Supp. 3d 559, 567-68 (E.D. Pa.) (furloughed employee failed to make out prima facie case of age discrimination where those hired back had elementary teaching certifications, required for the positions, that employee lacked), aff'd, 665 F. App'x 229 (3d Cir. 2016). The record does not reflect how Jefferson defines a business day. If the calculation excludes Saturdays, Sundays, and the federal holiday celebrating Veteran's Day, November 11, 2015, ten business days following October 31 is November 16, 2015.
As an initial matter, the parties have identified a matter of disagreement in connection with the third element of a prima facie case of discriminatory failure to promote, which requires that another, not in the protected class, was treated more favorably by the employer. Certain courts within this circuit have described a fourth element in failure to promote claims, which requires a plaintiff to show that "the employer continued to seek out individuals with qualifications similar to . . . [the plaintiff's] . . . to fill the position," Iyer v. Everson, 382 F. Supp. 2d. 749, 756 (E.D. Pa. 2005), or that "the person who filled the desired position had equivalent or lesser qualifications," Gilmore v. Macys Retail Holdings, Inc., 385 F. App'x 233, 237 (3d Cir. 2010). Thus, Lockheed argues that Plaintiff must show that her qualifications were at least equal to each successful candidate.
Certain courts within this circuit have described a fourth element in failure to promote claims, which requires a plaintiff to show that "the employer continued to seek out individuals with qualifications similar to [the plaintiff's] to fill the position," or that "the person who filled the desired position had equivalent or lesser qualifications." See Iyer v. Everson, 382 F. Supp. 2d. 749, 756 (E.D. Pa. 2005); Gilmore v. Macys Retail Holdings, Inc., 385 F. App'x 233, 237 (3d Cir. 2010). Thus, Lockheed argues that Plaintiff must show that her qualifications were at least equal to each successful candidate.
See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996) (citations omitted). Further, to prove the requisite causal connection, plaintiff must be able to show that TestAmerica had knowledge of her protected conduct when it decided to discontinue its relationship with her. See Iyer v. Everson, 382 F. Supp. 2d 749, 758 (E.D. Pa. 2005) aff'd, 238 F. App'x 834 (3d Cir. 2007) (finding the plaintiff failed to establish a prima facie case of retaliation where the plaintiff did not present any evidence to show that the defendant was actually aware of his EEO complaints). TestAmerica contends that plaintiff cannot establish the requisite causal link because it did not receive a copy or other notice of plaintiff's EEOC charge until August 19, 2009, well after it ended its relationship with her. Dkt. No. 56 at ¶ 84. Plaintiff has not set forth any evidence to rebut TestAmerica's contention that it did not have notice of her EEOC filing at the time of her termination.
For Ms. Seybert to show a causal connection between Title VII protected conduct and an adverse employment action, she must be able to show that the relevant actors at IGI had knowledge of her protected conduct. Iver v. Everson, 382 F Supp. 2d 749, 758 (E.D. Pa. 2005). The evidence suggests that Ken Reucassel spoke to Mr. Marchand concerning Ms. Seybert's initial complaint about Mr. Marchand's staring at her breasts. It also suggests that both Ken Reucassel and Ms. Meilke talked to Mr. Marchand about Ms. Seybert's complaint concerning the sexual comment at the Recognition Dinner. Taken together, the evidence is sufficient to support a causal link between Ms. Seybert's protected conduct and Mr. Marchand's harassment.
The United States Court of Appeals for the Third Circuit noted "[a]lthough he need not establish" non-Native Americans were rehired after criminal charges, "he must establish some causal nexus between his membership in a protected class and the decision not to rehire him." Id.; accord Iyer v. Everson, 382 F. Supp. 2d 749, 757 (E.D. Pa. Aug. 18, 2005) (Brody, J.) (plaintiff did not present evidence employer treated him less favorably and did not establish a causal nexus between his race, color, religion, sex, or national origin and the employment action). Gaddy claims she was treated differently than Caucasian and Hispanic males, citing Smith as an example.
However, a plaintiff is not obligated to make such a showing. See Iyer v. Everson, 382 F. Supp. 2d 749, 756 n. 14 (E.D. Pa. 2005) ("Showing that similarly situated employees outside of plaintiff's protected class were more favorably treated under similar circumstances is one way, but not the only way, to raise an inference of unlawful discrimination."); Klimczak v. Shoe Show Cos., 420 F. Supp. 2d 376, 382-83 (M.D. Pa. 2005). Here, Defendant contends that Roddy cannot satisfy her burden to show a prima facie case of sex discrimination because she has not identified any non-probationary employees that were treated differently from her. As discussed above, such a showing is not required by law, nor does it seem appropriate in this case as there do not appear to have been any similarly situated employees with whom Roddy could offer such a comparison.
Also critically important in this case is the fact that Defendant has proffered uncontroverted evidence that none of the individuals responsible for taking the adverse employment actions against Doe were aware of his prior EEO activity. SMF 139-52;compareIyer v. Everson, 382 F. Supp. 2d 749, 758 (E.D. Pa. 2005) (finding no causal connection when unrebutted evidence showed that the decisionmaker had no knowledge of plaintiff's EEO complaints). Although Doe asserts by speculation that the filing of his EEO complaints was "common knowledge," the record clearly demonstrates that his supervisors were not aware of Doe's prior EEO activity.
Such a shortcoming is fatal to plaintiff's claims at summary judgment. See e.g. Sarullo, 352 F.3d at 798-99 (a plaintiff's failure to raise an inference of discriminatory animus and attempt to support a claim through nothing more than a personal assumption of discrimination in the face of the employer's explanation is insufficient to defeat a motion for summary judgment); Iyer v. Everson, 382 F. Supp.2d 749, 757 (E.D. Pa. 2005) (attorney/employee who failed to demonstrate the employer continued to seek out individuals with qualifications similar to the employee's to fill a vacant position did not present "circumstances that raise an inference of discriminatory action" and thus failed to establish the fourth element of a prima facia case, entitling the employer to summary judgment). Moreover, even assuming for the purpose of argument that plaintiff's prior concessions concerning the scope of the litigation should be overlooked, plaintiff's evidence nevertheless is insufficient to support a finding of pretext on any employment opportunity raised in the litigation.