Opinion
Civil Action No. 18-1245
05-05-2020
CHASTITY KING, Plaintiff, v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Defendant.
District Judge Nora Barry Fischer
Re: ECF No. 37 REPORT AND RECOMMENDATION
I. RECOMMENDATION
Plaintiff Chastity King ("King") brings this civil rights action pursuant to Title VII, 42 U.S.C. § 2000e, against Defendant Pennsylvania Department of Corrections ("DOC"), and alleges claims for gender discrimination - hostile work environment (Count I), gender discrimination - constructive discharge (Count II), retaliation - hostile environment (Count III), and retaliation-constructive discharge (Count IV). ECF No. 1. King's claims arise out of the DOC's alleged failure to address and prevent a pattern of gender-based harassment and retaliation by peers and supervisors in the course of her employment as a corrections officer at the State Correctional Institution - Forest ("SCI-Forest").
Pending before the Court is the DOC's Motion for Summary Judgment. ECF No. 37. The DOC argues that it is entitled to judgment in its favor as a matter of law because King is unable to establish the requisite elements of her claims. Upon review of the evidence of record, the Court finds that there are material issues of fact regarding each of King's claims that preclude the entry of judgment in DOC's favor. Accordingly, it is respectfully recommended that the Motion for Summary Judgment be denied.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
The factual background derives from the undisputed evidence of record, the parties' separately filed Concise Statements of Fact, and the exhibits submitted in support. Disputed evidence is viewed in the light most favorable to King, as the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor.").
King began her employment with the DOC as a Corrections Officer Trainee at SCI-Forest on June 22, 2015. ECF No. 36-2 at 21. In November 2015, DOC granted King a hardship transfer to SCI-Pittsburgh to accommodate care requirements for her special-needs children. Id. at 22. King successfully completed her training and received satisfactory performance reviews. In 2017, DOC closed SCI-Pittsburgh and offered King the opportunity to identify three facilities for transfer. King selected SCI-Forest because she was familiar with the facility and its operations. King believed that despite the presence of her ex-husband and any resentment her former SCI-Forest coworkers expressed over her transfer two years earlier, they would be "adults." Id. at 26-27.
Upon her return to SCI-Forest in May 2017, King was assigned as a floater to fill in personnel gaps on the facility's housing blocks. On five separate occasions, her shift commander assigned her to work in the E-Block "control bubble." Each time, Sergeant Bloss ("Bloss") reassigned King out of the control bubble and once loudly disciplined King in front of inmates for miscounting spray bottles during a routine inventory. The missing bottle was located the next day, hidden in a fire extinguisher. King claims that a peer officer told her, "I've seen this happen a hundred times, the boss don't like women on this unit." Id. at 29-30. In addition, the inventory "error" was a "game" that Bloss played on "just female" corrections officers assigned to his block. Id. at 39. King reported these incidents to her shift commanders, but each refused to intervene and ignored her complaints. Id. at 35-36, 40-41.
King was also subjected to several incidents best characterized as humiliating. King was assigned to operate a metal detector to screen employees and visitors entering the facility. On two occasions, a corrections officer walking through the metal detector dropped his pants. King's facial expression was captured on a video image and shared with officers throughout the facility. King complained to the supervising shift commander that it was suspicious that this happened to her, a female, but not to male guards. The shift commander dismissed her complaints, and disciplined King for failing to have the guard pass through the detector again after setting off an alarm. Id. at 42-43.
In September 2017, a female corrections officer informed King that a drawing of her in bed with two male officers in a sexual position was "plastered" in control bubbles throughout the facility. Id. at 45-50. King complained to the major of the guard, who served as commander for all shifts. He responded by assigning her to yard duty and calling a meeting of all remaining officers on King's shift. During the meeting he informed King's peers that she complained about the drawing and he instructed the officers to remove all copies from the facility. Id.
King suffered a concussion while remodeling her home and was off work for six weeks. After returning to work in November 2017, she suffered additional incidents she believes were gender-based hostility and retaliation for her prior complaints. During one incident, she was using the women's restroom when a male guard began pounding on the door. King repeatedly announced her presence inside, but the guard used a pass key to open the door while King was pulling up her pants. When the door opened, the male guard was standing in front of her and inmates were in the area who could have observed King pulling up her pants. Id. at 53-56. King reported this incident to her local union president and filed an internal discrimination complaint with the DOC. King states that the union failed to act on her grievance and the DOC performed a perfunctory investigation that failed to substantiate her complaints. SCI-Forest personnel were advised of the investigation, and King states she began to suffer additional retaliatory acts. King contends that peers and inmates were instructed not to speak with her, and two co-workers submitted a false charge that King performed an unauthorized "group release" of prisoners from their cells. King sought to discuss this charge and the harassment she was experiencing with the SCI-Forest Superintendent, but upon reaching him, King was told that "he didn't want to hear anything [she] had to say and he hung up." Id. at 66-67.
In late December 2017, King and another female officer left a building during a shift change when an exterior gate was unexpectedly and irregularly locked. As a result, the two women were trapped outside in sub-zero temperatures for up to fifteen minutes despite repeated attempts to call for assistance. Id. at 68-69. King believes this incident was intentional and retaliatory, and gender based.
Because of ongoing harassment and retaliation for her complaints, King suffered what she characterizes as a nervous breakdown at work on January 2, 2018. Id. at 69-71. She was told to report to the shift commander's office and relayed the incidents of harassment she was experiencing. The shift commander granted her permission to go to her car to retrieve anxiety medication, but on the way to her car, a supervising guard who was unaware that she had been released for this purpose began screaming at her. When she returned to the facility from her car, this officer helped King retrieve her keys to turn them in. In the process, he forcefully threw King's shirt at her and struck her in the chest. Id. The next day, King was seen by her primary care physician, who determined that she was unable to return to work at SCI-Forest.
Later that week, King received notice of disciplinary charges for her alleged violation of DOC ethics standards for filing or initiating false disciplinary charges against two inmates. The disciplinary proceedings coincided with her submission of notice from her physician that she was unable to return to work due to anxiety. Id. at 76-80.
On February 16, 2018, King submitted a charge of discrimination with the Equal Employment Opportunity Commission and was provided a right to sue letter on February 20, 2018. ECF No. 35 ¶ 75. Thereafter, King timely commenced this lawsuit, seeking damages for humiliation and embarrassment resulting from the hostile working conditions and the retaliation that she alleges led to her constructive discharge as a DOC employee.
Discovery is concluded and the DOC has filed the pending Motion for Summary Judgment. The parties have submitted a Joint Concise Statement of Material Facts, separate Concise Statement of Material Facts and responses thereto, and briefs and exhibits in support of and in opposition to the pending Motion for Summary Judgment. ECF Nos. 35 - 45. The Motion for Summary Judgment is now ripe for consideration.
B. STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that: "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). An issue of material fact is in genuine dispute if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) ("A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof"). Thus, summary judgment is warranted where, "after adequate time for discovery and upon motion ... a party ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
The moving party bears the initial burden of demonstrating to the court that no evidence supports the non-moving party's case. Celotex, 477 U.S. at 322; see also Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). "[W]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (internal quotations omitted).
In deciding a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party and must draw all reasonable inferences and resolve all doubts in favor of the nonmoving party. Matreale v. N.J. Dep't of Military & Veterans Affairs, 487 F.3d 150, 152 (3d Cir. 2007); Woodside v. Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001).
C. DISCUSSION
King asserts that she suffered a hostile work environment, retaliation, and constructive discharge, all because of her gender and in violation of Title VII. Title VII provides in relevant part:
It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. § 2000e-2(a)(1). The DOC seeks summary judgment because it contends no evidence supports Plaintiff's claims of gender discrimination or retaliation in any aspect of her employment at SCI-Forest. The Court addresses each claim in turn.
1. Count I: Gender Discrimination - Hostile Environment
King claims she faced a hostile work environment on the basis of gender in violation of Title VII. The factual basis for King's gender-related hostile work environment includes Bloss's repeatedly reassigning her out of the control bubble to avoid working with women, his conduct related to the missing spray bubble as a prank only played on women, the bathroom incident, the sexual drawing of Plaintiff distributed throughout the facility, the metal detector incident, and the lock-out incident.
To establish a prima facie case of hostile work environment under Title VII, a plaintiff must prove the following elements: (1) intentional discrimination based on sex; (2) severe or pervasive conduct; (3) a detrimental effect on the plaintiff; (4) a detrimental effect on a reasonable person in similar circumstances; and (5) the existence of respondeat superior liability. Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013); see also Castleberry v. STI Grp., 863 F.3d 259, 263 (3d Cir. 2017). Not all workplace conduct that may be described as harassment rises to the level of a hostile work environment. Clegg v. Falcon Plastics, Inc., 174 F. App'x 18, 25 (3d Cir. 2006). A court must analyze the alleged harassment by "'looking at all the circumstances,' including the 'frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). The discriminatory "conduct must be extreme [enough] to amount to a change in the terms and conditions of employment." Id. at 788; see also Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (reiterating that for an atmosphere of harassment to be actionable, the conduct must be sufficiently severe or pervasive that it "alter[s] the conditions of the victim's employment" to create an "abusive working environment"). In making this assessment, offhand comments and isolated incidents are not enough to sustain a hostile work environment claim. Castleberry v. STI Grp., 863 F.3d at 265 (noting, however, that "an extreme isolated act of discrimination" may create a hostile work environment).
The DOC challenges the factual basis of each of the incidents at issue to justify the behavior of the involved officers, disputes certain incidents out of hand, and otherwise contends that absent persistent egregious sexual harassment, a female employee cannot state a claim for gender based hostile work environment. ECF No. 38 at 19-20.
The DOC also argues that the Court should apply the burden-shifting analysis adopted in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) to analyze Plaintiff's gender discrimination hostile environment claim. Simply, the McDonnell Douglas analysis does not apply to her gender discrimination retaliatory hostile environment and constructive discharge claims. See Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 213 (3d Cir. 2017) (the burden-shifting framework is inapplicable to hostile work environment claims because there can be no legitimate justification for a hostile work environment).
Preliminarily, the Court notes that in contesting King's factual allegations of each instance of alleged misconduct, the DOC raises material issues of fact regarding the pattern of incidents that require resolution by a jury. As to the first element of King's hostile environment claim, intentional discrimination based upon gender, King presents evidence that Bloss intentionally reassigned her at least five times and disciplined her as a "prank" because she is a woman and "the boss doesn't want women in his unit." ECF No. 36-2 at 29-30. The DOC contends that Bloss reassigned her to put more experienced personnel in the control bubble and gender played no role in his actions. The DOC therefore presents a question of credibility for jury resolution regarding, on the one hand, Bloss's stated rationale for removing King from the control bubble despite his supervisor's assignment or, as alleged by King, whether Bloss disciplined her as a "prank" and reassigned her out of the bubble so he wouldn't have to work with her because she is a woman. See Pearson v. Prison Health Serv., 850 F.3d 526, 541 (3d Cir. 2017) (quoting Anderson, 477 U.S. at 255 ("when deciding a motion for summary judgment, 'the evidence of the non-movant is to be believed,' and credibility determinations must be left to the jury")).
King also presents sufficient evidence to raise a jury question as the second element of her hostile work environment claim, whether she suffered "severe and pervasive conduct sufficient to change the terms of [King']s employment." Moody, 870 F.3d at 214-15. Together with evidence of repeated reassignments by Bloss and his "prank" played only on female guards, King alleges that (1) she was humiliated by the drawing of her in a sexual position "plastered" in the control bubbles throughout the facility; (2) a male peer intentionally opened the bathroom door while she was pulling up her pants; (3) a male officer twice dropped his pants while walking through a metal detector operated by King, and the image of King's reaction was then shared throughout the facility; and, (4) King and another female officer suspiciously were locked outside in subzero temperatures for nearly fifteen minutes.
The DOC challenges each incident with evidence that again requires the Court to make credibility determinations. To that end, the DOC states that these incidents were not gender related because: (1) the sexual picture also embarrassed the two males depicted with her; (2) a female officer opened the bathroom door for her male counterpart because no one heard King announce her presence; and (3) the officer who dropped his pants was frail and elderly and would have never embarrassed himself by intentionally dropping his pants to reveal that he wore a diaper. ECF No. 38 at 7-10. Because credibility determinations are properly left to a jury, summary judgment is inappropriate to resolve these discrepancies. The evidence presented by King, viewed in the light most favorable to her, presents sufficiently severe or pervasive conditions to support a hostile work environment claim.
The third and fourth elements of a hostile work environment claim require weighing whether the discriminatory incidents subjectively affected King, and would detrimentally affect a reasonable person in similar circumstances. The DOC does not challenge whether the acts caused King to subjectively suffer harm. In this regard, King has presented evidence that as a result of the repeated offensive and discriminatory conduct, she suffered anxiety to such a degree that she sustained a "nervous breakdown" and her physician determined she was unable to return to work. In addition, King repeatedly complained to supervisors who she alleges turned a deaf ear or failed to sufficiently ameliorate the hostility she experienced due to her gender.
To prevail on her hostile work environment claim, King must also establish that the conduct at issue created an objectively hostile work environment. King must demonstrate that a reasonable person would find the environment offensive, hostile, or abusive. Harris, 510 U.S. at 21. As summarized in this Report, a reasonable person could conclude that the work environment faced by King was sufficiently abusive or offensive to create a hostile work environment. King alleges she was subjected to repeated reassignments and discipline by Bloss, sexually offensive parody, the invasion of her privacy while using a restroom because of her gender, and a lock out in extreme winter conditions with another female officer. Such conduct, when examined in total, goes beyond petty or common workplace behavior and rises to a degree that a reasonable jury may find a pattern that is objectively hostile.
Finally, King must establish that the DOC is properly held liable for the actions of King's co-workers or supervisors. Whether an employer is liable for the discriminatory acts of its employees depends on status. If the harassing employee is a supervisor and the harassment results in discipline or termination, the employer is strictly liable for the employee's actions. Vance v. Ball State University, 570 U.S. 421, 424 (2013). When the harassing employee is a co-worker, "the employer is liable only if it was negligent in controlling working conditions." Id. The law recognizes that an employer's investigation into a harassment complaint need not be perfect to satisfy this standard. Knabe v. Boury Corp., 114 F.3d 407, 412 (3d Cir. 1997). Instead, whether an employer's response is adequate turns on whether the action was "reasonably calculated to prevent further harassment." Id. Here, King presents evidence of repeated complaints to supervisors and the SCI Forest Superintendent that failed to ameliorate the harassment she experienced. ECF 36-2 at 34-36, 40-41, 42, 43, 57-59, 63-65, 66-68. In light of this evidence, there is a genuine dispute of material fact as to whether the DOC handled King's complaints appropriately and took "prompt and adequate remedial action" to prevent continued and escalating harassment that eventually led her to suffer significant mental distress. Knabe, 114 F.3d at 411 n.8.
Based on the Court's review, King has proffered sufficient evidence of each of the requisite elements of a gender-based hostile work environment claim under Title VII. Accordingly, it is recommended that the DOC's Motion for Summary Judgment be denied as to Count I.
2. Count II - Gender Discrimination - Constructive Discharge
King also brings a claim for gender discrimination constructive discharge, and alleges that her decision to resign on February 16, 2018, "was motivated solely by the hostile work environment to which she was being subjected." ECF No. 1 ¶ 21.
Constructive discharge occurs when workplace discrimination against an employee rises to the point that his "working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign." Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004). See e.g., Mathis v. Christian Heating & Air Conditioning, Inc., 158 F. Supp. 3d 317 (E.D. Pa. 2016); Goss v. Exxon Office Systems Co., 747 F.2d 885, 888 (3d Cir. 1984). "Intolerability" is assessed by an objective standard, "whether a 'reasonable person' in the employee's position...would have had no choice but to resign." Connors v. Chrysler Financial Corp., 160 F.3d 971, 976 (3d Cir. 1998) (quoting Blistein v. St. John's College, 74 F.3d 1459, 1468 (4th Cir. 1996), overruled on other grounds, Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998)).
The United States Court of Appeals for the Third Circuit uses an "objective test in determining whether an employee was constructively discharged from employment: [asking] whether 'the conduct complained of would have the foreseeable result'" of leading a reasonable employee facing that level of difficulty in their working conditions to resign. Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir. 1992) (quoting Goss, 747 F.2d at 887-88). In making this determination, "[a]n employee is protected from a calculated effort to pressure her into resignation through the imposition of unreasonably harsh conditions, in excess of those faced by her co-workers. She is not, however, guaranteed a working environment free of stress." Id. at 1083 (quoting Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.1985), cert. denied, 475 U.S. 1082 (1986)).
In boilerplate fashion, the DOC contends that King cannot sustain a claim for constructive discharge because she "has not demonstrated that she was subjected to a hostile work environment based on gender." ECF No. 38 at 20-21. Upon review, the Court has determined, to the contrary, that King presents evidence upon which a reasonable jury could find that she suffered gender-based discrimination supporting a hostile work environment. In addition, the incidents involving the invasion of her privacy in the bathroom, the conduct of her peers "plaster[ing]" a drawing of King in a sexually compromising situation throughout the facility, and the playing of pranks on her because she is a female guard, are sufficient to permit a jury to consider "whether a 'reasonable person' in the employee's position...would have had no choice but to resign." Connors, 160 F.3d at 976. Thus, it is recommended that the Motion for Summary Judgment be denied as to King's gender-based constructive discharge claim set forth in Count II of the Complaint.
3. Counts III and IV - Retaliation - Hostile Environment and Retaliation - Constructive Discharge
Title VII bars retaliation because of protected conduct:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.42 U.S.C. § 2000e-3(a). "Unlike the antidiscrimination provision, the antiretaliation provision is not limited to employer action that affects the terms and conditions of a claimant's employment." Komis v. Sec'y of United States Dep't of Labor, 918 F.3d 289, 293 (3d Cir. 2019). Rather, employees may bring claims of a retaliatory hostile work environment based on the conduct of peers and supervisors in response to protected activity and the "usual [discriminatory] hostile work environment framework applies equally" to claims of retaliatory hostile work environments. Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006), overruled in part, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Thus, to prevail on a retaliatory hostile work environment claim, a plaintiff must prove:
(1) [S]he suffered intentional discrimination because of her protected activity; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected her; (4) it would have detrimentally affected a reasonable person in like circumstances; and (5) a basis for employer liability is present.Komis, 918 F.3d at 293. In Burlington N. & Santa Fe Ry. Co. v. White, the Supreme Court altered the requirement for evidence of the "severe or pervasive" nature of discrimination. Instead, a plaintiff must "show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." 548 U.S. at 68 (italics added).
The Court views the challenged conduct "from the perspective of a reasonable person in the plaintiff's position, considering 'all the circumstances.'" Id. at 71 (quoting Oncale v. Sundower Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). "The question whether a retaliatory action is 'materially adverse' under Burlington Northern is a question of fact." Prise v. Alderwoods Grp., Inc., 657 F. Supp. 2d 564, 607-08 (W.D. Pa. 2009).
The DOC contends that King has not presented sufficient evidence that she engaged in protective conduct, that her coworkers knew of her complaints, or that she suffered an adverse employment action as a result of any protective conduct. ECF No. 38 at 23-27. Upon review, the Court finds that the DOC is not entitled to summary judgment in its favor as to King's retaliatory hostile environment and constructive discharge claims.
The DOC first argues that King cannot establish that she engaged in protected activity by complaining about the widely posted drawing of her in a sexual position because she did not specifically employ the terms "Title VII" or "gender discrimination." ECF No. 38 at 23. The use of specific words, however, is not required. See Crawford v. Metro. Gov't of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 274 (2009) (Title VII does not require initiation of a formal complaint; rather describing instances of sexually harassing behavior to a supervisor is protected activity).
"With respect to 'protected activity,' the anti-retaliation provision of Title VII protects those who participate in certain Title VII proceedings (the 'participation clause') and those who oppose discrimination made unlawful by Title VII (the 'opposition clause')." Moore v. City of Philadelphia, 461 F.3d 331, 341 (2006) (citing Slagle v. County of Clarion, 435 F.3d 262, 266 (3d Cir. 2006)). In raising a complaint, "the employee must hold an objectively reasonable belief, in good faith, that the activity they oppose is unlawful under Title VII." Id. (citing Clark County v. Breeden, 532 U.S. 268, 271 (2001) (per curiam)). King argues that the drawing at issue can be interpreted only as sexual harassment and its publication by "plastering" it across the facility constituted unlawful conduct intended to humiliate her based on her gender. ECF No. 41 at 18. Based on this conduct, King complained to Major Mongelluzzo, the official responsible for officers on all shifts at the facility. The Court agrees that pursuant to Crawford, King's complaint to a supervising officer regarding this incident constitutes qualifying "protected activity."
After King complained to the facility guard supervisor, and despite a medical leave of absence, the harassment King suffered and that she attributes to her gender escalated, leading to the invasion of her privacy by a male guard while she was in the women's bathroom. Because of this incident, she filed an EEO complaint. This report led to additional retaliatory acts, including the winter lock out incident. Under these circumstances, King presents evidence upon which a reasonable jury could determine that she engaged in activities protected by Title VII.
The DOC next challenges whether King can establish that her co-workers knew about her complaints to Major Mongelluzzo or to the DOC EEO officer. The DOC contends that absent such evidence, a jury would be unable to find that her complaint(s) caused any adverse action. ECF No. 38 at 24-25. As described above, King argues there is sufficient evidence that her immediate co-workers were told by Major Mongelluzzo that she complained about them making and posting the obscene picture, and that she was then subjected to an escalation of harassing conduct after she returned from medical leave because she "turn[ed]" them in. ECF No. 41 at 19 (citing ECF No. 43 ¶¶ 125, 128). King also presents evidence that after her formal EEO complaint, an investigation was launched that apprised co-workers and supervisors of her protected activity, leading "a number of them, including CO's Lamoreaux, Carey, and Holland" to avoid her, laugh and carry on if King came near them. Id. at 20. In addition, King experienced the lock out incident and a false disciplinary report in the weeks immediately following her formal complaint. This evidence, viewed in the light most favorable to King as the non-moving party, could lead a reasonable jury to conclude that King's co-workers and supervisors knew that she engaged in protected activity.
The DOC disputes King's allegation that her coworkers knew of her complaints and argues that none could not have known of the EEO investigation because of the DOC confidential reporting policy and the delay until January 2, 2018 before DOC officials interviewed the involved personnel. ECF No. 38 at 26. At best, the DOC presents an issue of credibility to be assessed by a jury, but this speculation does not establish entitlement to the entry of summary judgment in its favor as a matter of law.
Alternatively, the DOC contends that King cannot establish a causal nexus between her complaints and any alleged adverse action; first, because disciplinary proceedings for King's dishonesty and improper treatment of inmates were justified and, second, because the passage of time between her EEO Complaint and the commencement of disciplinary proceedings eliminates the likelihood of a causal nexus. Id.at 27-28.
King "must show a causal connection between [her] opposition to, or participation in proceedings against, unlawful discrimination and an action that might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Moore, 461 F.3d at 341-42. "[A] broad array of evidence" may be considered to determine whether a causal link exists to survive summary judgment. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 284 (3d Cir. 2000). "Where the temporal proximity between the protected activity and the adverse action is 'unusually suggestive,' it is sufficient standing alone to create an inference of causality and defeat summary judgment." LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217, 232 (3d Cir. 2007). That said, a causal nexus "is not limited to timing and demonstrative proof, such as actual antagonistic conduct or animus. Rather, it can be other evidence gleaned from the record as a whole from which causation can be inferred." Farrell, 206 F.3d at 281. As explained in Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173 (3d Cir. 1997), "[i]t is important to emphasize that it is causation, not temporal proximity [or evidence of antagonism], that is an element of plaintiff's prima facie case, and temporal proximity [or antagonism] merely provides an evidentiary basis from which an inference can be drawn." Id., 109 F.3d at 178.
A reasonable jury could find that the pattern or antagonism and adverse action taken by either King's supervisors or her peers resulted from her protected activity. The DOC limits its analysis of King's claim of adverse action solely to the initiation of disciplinary proceedings in January 2018. However, King presents evidence that she had complained for months leading up to the disciplinary proceedings, including complaints about Bloss's reassignment of King out of the control bubble, her supervisor's failure to address the corrections officer who dropped his pants twice while passing through the metal detector on King's watch and then for disciplining King with regard to the incident, the obscene drawing of King plastered throughout the facility, the bathroom incident, and the lock-out incident. King presents testimony that she consistently repeated her complaints of ongoing harassment and suffered escalating harassment and at least two disciplinary actions. These facts viewed in the light most favorable to King would permit a reasonable jury to infer a causal connection between her complaints and various disciplinary actions initiated against her between mid-2017 and February 2018. On this record, the DOC has not established entitlement to the entry of summary judgment in its favor as to Count III.
For similar reasons, the DOC has not established that it is entitled to summary judgment as to King's claim of retaliatory constructive discharge (Count IV). When, as here, the plaintiff alleges that retaliatory harassment from co-workers forced her to resign, a constructive discharge claim may be established. "[H]arassment so intolerable as to cause a resignation may be effected through co-worker conduct, unofficial supervisory conduct, or official company acts. Unlike an actual termination, which is always effected through an official act of the company, a constructive discharge need not be. A constructive discharge involves both an employee's decision to leave and precipitating conduct: The former involves no official action; the latter, like a harassment claim without any constructive discharge assertion, may or may not involve official action." Pennsylvania State Police v. Suders, 542 U.S at 148. Thus, when a plaintiff alleges that a defendant failed to act immediately following her complaints, and thereby permitted hostility within the workplace to continue or escalate, a retaliatory constructive discharge claim may be established. Ellingsworth v. Hartford Fire Ins. Co., 247 F. Supp. 3d 546, 557 (E.D. Pa. 2017).
As with King's hostile environment constructive discharge claims, King must show that the DOC knowingly permitted conditions of retaliatory harassment in her employment so intolerable that a reasonable person subject to them would resign. Mandel v. M & Q Packaging Corp., 706 F.3d at 169-70. Here, there is a material issue as to whether King was coerced to resign by the ongoing and escalating pattern of retaliation that remained unabated after her complaints to her supervisors, especially where many of the incidents occurred in the days and weeks after her complaints.
In the presence of such conduct, "even if it is unclear at summary judgment whether a finder of fact would ultimately conclude that [King] had no other reasonable alternative but to resign, the claim must be permitted to go forward if [she] has "raised genuine issues of material fact relating to her claim of constructive discharge." McIlmail v. Pennsylvania, 381 F. Supp. 3d at 405; see also Pennsylvania State Police, 542 U.S. at 152 (adopting the finding on appeal below that issues of fact precluded summary judgment). Accordingly, on the record presented, construing the evidence in favor of King as the nonmoving party, the Court recommends the denial of the DOC's Motion for Summary Judgment as to Count IV of King's Complaint.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the DOC's Motion for Summary Judgment, ECF No. 37 be denied as to King's gender discrimination - hostile work environment claim (Count I), gender discrimination - constructive discharge claim (Count II), retaliation - hostile environment (Count III) and retaliation - constructive discharge (Count IV).
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties may file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may respond to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
Respectfully submitted,
/s/ Maureen P . Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE Dated: May 5, 2020 cc: The Honorable Nora Barry Fischer
United States District Judge
All counsel of record by Notice of Electronic Filing