Bogaski v. County of Allegheny
Bogaski v. County of Allegheny
Opinion of the Court
MEMORANDUM OPINION ON PLAINTIFF’S AND DEFENDANT’S CROSS-MOTIONS FOR SUMMARY JUDGMENT
I. Summation
For the reasons set forth below, Defendant’s August 11, 2016 Motion for Summary Judgment (ECF No. 50) will be granted as to Plaintiffs- claim of disparate impact in violation of Title VII, and denied in its remainder. Plaintiffs August 9, 2016 Motion for Summary Judgment (ECF No. 45) will be denied.
II. Factual and Procedural History
As noted in this Court’s Memorandum Opinion on Defendant’s Motion to Dismiss (ECF No. 18) (“Opinion on Motion to Dismiss”), Plaintiff filed an Amended Complaint (ECF No. 11) chronicling a more than two year employment history allegedly “replete with disturbing instances of (a) gender-based discrimination and retaliation, (b) extensive personal attacks/vilification, and (c) at best inept, indifferent and/or delinquent institutional response and at worst institutional disregard for and further violation of constitutionally-protected rights.” ECF No. 18 at 2.
Plaintiff indicated that during her hiring, as the sole female “laborer” (employees responsible for park cleaning and maintenance) in Defendant’s Public Works Department, she was warned of likely sexually explicit and offensive speech, but provided no guidance for reporting or redress of sexual harassment. That is, “Defendant essentially presented (a) Plaintiffs acceptance of employment as a . laborer in its Public Works Department as an assumption of the risk of sexual harassment and (b) violation of the protections of, e.g., Title VII, as an inherent condition of employment.” Opinion on Motion to Dismiss, ECF No. 18, at 2 (citing Amended Complaint at 2-3). Subsequent to discovery and in the pending Motions, the parties acknowledge Plaintiffs receipt on employment of an Employee Handbook (a) asserting Defendant’s prohibition of sexual discrimination, harassment, or retaliation and (b) identifying by title those to whom violations should be reported, including as a first-line, her “supervisor”. See, e.g., Defendant’s Memorandum in Support- of Motion for Summary Judgment (“Defendant’s Memo in Support”), ECF No. 51, at 4-5. Defendant also asserts Plaintiff was shown an instructive video dealing with sexual harassment. See Defendant’s Reply Brief in Support of Motion for Summary Judgment (“Defendant’s Reply in Support”), ECF No. 65, at 2.
Plaintiff further alleged she was subjected to sexually inappropriate and offensive comments by male staff, particularly laborer Tom Long (“Long”), who in March, 2013 slapped Plaintiffs, buttocks in the presence of co-workers, Country tradesmen and Foreman Jim Kelly (“Kelly”). Her objections triggered a “campaign of sexual harassment, bullying, verbal abuse and retaliation” by Long and other coworkers. Specific instances alleged included vandalization of her property (such as tearing apart her boots and filling them with dirt and bugs, spraying her vehicle with, phlegm/spit, blowing dirt/debris,into her open car windows), name-calling (such as referring to Plaintiff as .a “bitch”) and “vicious, sexually-based, unfounded rumors alleging intimate relations with co-workers”. Opinion on Motion to Dismiss, ECF No. 18, at 3 (citing Amended Complaint). These allegations now have evidentiary
Although Plaintiff was contacted by Defendant’s Department of Human Resources (“DHS”) in Summer, 2014, she alleges that the details of her purportedly confidential conversation were quickly widespread and the retaliatory assaults (including obscene comments and rumors) intensified. Plaintiff alleged Defendant interviewed a few employees (including Long), took no remediatory or disciplinary action, and closed the investigation in September, 2014. When she declined proffered reassignment to another work site shortly thereafter, the DHS • employee blamed Plaintiffs harassment on her physical appearance. A few days later, Plaintiff filed her Charge of Discrimination with the Equal Employment Opportunity Commission (the “.EEOC” and “EEOG Charge”), including a “continuing action” and “ongoing” sexual harassment and. hostile work environment. See Opinion on Motion to Dismiss, ECF No. 18, at 3-4.
Plaintiff further alleged that: Defendant then held a “workplace civility” training for North Park employees, and required Plaintiff to recount instances of sexual harassment. Plaintiff was re-assigned to the isolated skating ririk in the park with reduced work conditions/benefits. Her primary victimizer, Long, was willingly reassigned to another location with improved work privileges. Coda was subsequently transferred from the'North Park facility where he had worked for decades. Plaintiff was transferred back to the North Park facility in April, 2015 and continued to be subject to worsening harassment under an unsympathetic new supervisor, Rich Daniels (“Daniels”). In response to emotional and physical distress, she requested unpaid leave under the Family and Medical Leave Act (the “FMLA”). She learned that Daniels promised others that she would be subjected to continuing harassment if she returned. Contemporaneous with her April 12, 2015 Complaint, she tendered her resignation. See Opinion on Motion to Dismiss, ECF No. 18, at 4-5 (citing Amended Complaint). Again, subsequent to discovery, there are material fact questions related to many of these allegations. See, e.g., Plaintiffs Concise Statement of Material Facts, (“Plaintiffs CSMF”), ECF No. 47 (appearing to omit, e.g., factual assertions supportive of events alleged at the training session, an improvement in Long’s working conditions/privileges on transfer, or Daniels’ conduct during/after Plaintiffs FMLA absence). In the subsequent pleadings, Plaintiff further alleges, and provides evidentiary support for, communication with Defendant during her FMLA leave advising that she did not want to resign but would be forced to do so if the years-long adverse work environment at North Park and the hostility and harassment of her new supervisor and co-workers remained unremediated. See Plaintiffs Brief in Opposition, ECF No. 56, at 10-11.
III. Standard of Review
Summary judgment may be granted if, drawing all inferences in favor of the non-moving party, “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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). See also Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538, (1986). The moving party has the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. The party opposing the motion, however, cannot rely merely upon bare assertions, con-clusory allegations, or suspicions to support the claim; rather, the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348, and must produce more than a “mere scintilla” of evidence to demonstrate a genuine issue of material fact. See Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). See also Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (observing that Rule 56(e) permits a summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves).
The inquiry to be made is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” The non-moving party “must be able to produce
IV. Analysis
A. Hostile Work Environment
As Defendant observes, to establish a claim under Title VII and the PHRA for gender-based employment discrimination due to an intimidating or offensive work environment, a plaintiff must show: (1) she suffered intentional discrimination because of her gender, which (2) was pervasive and regular; (3) detrimentally affected her, and (4) would detrimentally affect a reasonable person of her gender in that position. See Defendant’s Memo in Support, ECF No. 51, at 3 (citing Tucker v. Merck & Co., 131 Fed.Appx. 852, 858 (3d Cir. 2005); West v. Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir. 1995)).
1. Reasonable Avenue of Complaint
Defendant first asserts that Plaintiffs hostile work environment claim “fails as a matter of law because Defendant provided a reasonable avenue of complaint for ... sexual harassment allegations” via the Allegheny County Employee Handbook which Plaintiff received on January 7, 2013 and failed to follow. ECF No. 51 at 3-5. Defendant recounts the provisions of the form Acknowledgment and Handbook
As to Plaintiffs alleged failure to follow these policies, Defendant proffers no authority for an assertion that exhaustion of its Handbook remedies was a prerequisite to this action. Cf Opinion on Motion to Dismiss, ECF- No, 18. To the contrary, Plaintiff filed her complaint with the EEOC and received her Notice of Right, to Sue. See n. 1, supra. To the extent Defendant intends another variation on an assertion that Plaintiff, is summarily unentitled to relief because she did not personally pursue her complaints of ongoing abuse “up the ladder”, the Court rejects any such assertion.
At bottom, summary judgment on Plaintiffs hostile work, environment claim is precluded by material fact questions as to Defendant’s provision of a reasonable avenue of complaint.
2. Prompt and Appropriate Remedial Action
Summary judgment on this claim is also precluded by the parties’ failure to remove any material fact questions as to Defendant’s assertions that (a) it neither knew nor should have known that Plaintiff was being subjected to working conditions in violation of Title VII prior to June, 2014 because she did not report verbal and physical abuses to supervisors higher than North Park Supervisor Coda prior to that time, and (b) it took prompt and appropriate remedial action against Title VII violations of which.it was or should have been aware. See ECF No. 51 at 4-5; see also recounting of Defendant’s specifically alleged and (disputedly) evidenced course of action, supra.
(a) Violations Occurring Prior to June, 2014
Defendant asserts entitlement to summary judgment as to any violations occurring prior to the date of Plaintiffs direct report to Maintenance Supervisor Man-gretta, an acknowledged “management employee”, - because (a) neither Kelly nor North Park Supervisor Coda were “management-level” employees whose knowledge could be imputed to Defendant and (b) to the extent either’s knowledge could be imputed, they took prompt and appropriate remedial action. See ECF No. 51 at 5-10. The record, however, reflects clear material fact questions preclusive of summary judgment for either party.
(i) Imputation of Knowledge
First, Defendant correctly observes that “knowledge of sexual harassment may be imputed to the employer when the employee. is employed to report or respond to sexual harassment”, as where that employ
Moreover, even if Coda’s knowledge were not imputed to Defendant, fact questions regarding Defendant’s own maintenance of an open urinal—a condition of Plaintiffs employment addressed by the parties in their post-discovery pleadings— present sufficient independent grounds for denial of summary judgment.
(ii) Appropriate Remedial Action
Defendant proceeds to assert that even if it was or should have been aware of Title VII violations prior to June, 2014, it is entitled to summary judgment on the basis of prompt and appropriate remedial action. The record again evidences significant questions of material fact.
More specifically, the Court observes that the analysis turns on Defendant’s prompt and appropriate remedial action and fulfillment of its obligations under Title VII. Defendant correctly observes that “[a]n employer’s remedial action is adequate if it is reasonably calculated to prevent further harassment.” ECF No. 51 at 7 (quoting Huston, 568 F.3d at 110). However, Defendant’s recitation of Supervisor Coda’s (a) “reprimand” of Long for allegedly slapping Plaintiffs buttocks,
The Court also observes, as under the element of knowledge, supra, that the evidence now of record regarding Defendant’s North Park garage urinal presents an independent basis for denial of summary judgment where there is evidence that Defendant knew or should have known that it was thereby in violation of Plaintiffs rights under Title VII and there is a correspondent absence of evidence that it took any action whatsoever to remediate that violation.
(b) Violations Occurring After June, 2014
The Opinion on Motion to Dismiss, ECF No. 18, held that Defendant’s asserted remedial actions subsequent to Plaintiffs Summer, 2014 reporting to Maintenance Supervisor Mangretta, an acknowledged ‘management employee’, were insufficient to warrant dismissal of her claims. They remain insufficient to warrant summary judgment where Defendant’s - grounds essentially remain that it: promptly began an investigation, held a training session several months later, temporarily reassigned Plaintiff, reassigned her primary harasser Long, and assertedly stopped any further “overt” acts of harassment and rendering any subsequent harassment -insufficiently severe or pervasive to maintain a cause of action. See ECF No. 18.
Defendant now cites to evidence that following Plaintiffs report to Mangretta in early June, 2014, it “interviewed a number of North. Park employees” but did “not uncover[ ] who was responsible for the alleged incidents” but found Plaintiffs allegation “that Long had made an inappropriate comment” credible, “retrained Long”
B. Constructive Discharge
This Court previously rejected Defendant’s assertion of entitlement to dismissal of Plaintiffs constructive discharge claim on grounds of failure to exhaust administrative remedies. See Opinion on Motion to Dismiss, ECF No. 18, at 14-15. Defendant now asserts that, “in addition to [Plaintiffs] inability to establish the elements of a hostile work environment ..., the working conditions created ... were not sufficiently intolerable” to support liability for constructive discharge. ECF No. 51 at 14. Given the evidentiary record, and the nature of the material fact questions present sub judice, the Court is troubled by Defendant’s citation to Lucas v. City of Philadelphia, 2013 WL 2156007, at *18 (E.D. Pa. 2013) (“Mere dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign.”). Cf. Opinion on Motion to Dismiss, ECF No. 18, at 2, n.1 (noting Defendant’s “somewhat troubling assertions regarding Plaintiffs “mere[]” allegations and “some missteps in how her ... sexual harassment ... was handled”).
As discussed, supra, Plaintiff alleges and (disputedly) evidences that she was returned to the North Park facility in April, 2015, subsequent to Supervisor Coda’s reassignment elsewhere, and under the daily director of a new North Park Supervisor who was antipathetic to her complaints of recurrent sexual' and/or retaliatory harassment, directed her to “grow up”, and instituted new/adverse employment conditions.
Moreover, as noted in the Opinion on Motion to Dismiss, ECF No. 18, the United States Supreme Court directs that a constructive discharge claim “stems from, and can be regarded as an aggravated case of, sexual harassment or hostile work environment.” Pennsylvania State Police v. Suders, 542 U.S. 129, 146, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). And a fact-finder could certainly conclude, on determination of the disputed facts, that Plaintiffs constructive discharge was the result of a hostile work environment so severe that a reasonable person would be compelled to resign. Cf. Plaintiffs Brief in Opposition to Motion to Dismiss, ECF No. 17, at 6-7 (observing that where facts arose after EEOC filing which support that adverse employment conditions were “never mitigated or abated.... Defendant could have foreseen that Plaintiff would eventually be compelled to resign”). In response to Defendant’s assertion that Plaintiff voluntarily left employment after an argument with another employee and her supervisor, the Court notes questions of material fact. See, supra; see also, e.g., Plaintiffs Brief in Opposition, ECF No. 56, at 10 (asserting that when neither Defendant nor Supervisor Daniels took action against verbal harassment and slander of Plaintiff in 2015, she confronted the individuals “on her own, leading to an argument wherein her supervisor told her to grow up.... It is important to remember that ... Plaintiff had also filed an EEOC Charge ... which Defendants had never so much as answered.”); id. at 10-11 (asserting that after this argument, Plaintiff took unpaid leave under the FMLA and her legal counsel unsuccessfully sought Defendant’s remedial action/response). The Court finds sufficient eviden-
C. Disparate Impact
Defendant argues that Plaintiff does not have a triable claim for disparate impact based upon an assertedly insufficient process for addressing sexual harassment claims, for three reasons.
First, Defendant contends that a disparate impact claim under Title VII must involve disparity of employment opportunities, rather than a disparity in conditions of employment. See Defendant’s Memo in Support, ECF No. 51, at 17. As it did in ruling on Defendant’s Motion to Dismiss,
Second, Defendant contends that a disparate impact claim must be supported by statistical analysis. Although many reported cases describe disparate impact claims as statistically-based, there appears to be little if any authority actually addressing whether evidence supporting a prima facie showing of disparate impact must be statistical. At least two Third Circuit cases, relied upon by Defendant, suggest a contrary rule. See Aron v. Quest Diagnostics Inc., 174 Fed.Appx. 82, 83 (3d Cir. 2006), (cited in Defendant’s Reply in Support, ECF No. 65, at 9) (reciting District Court ruling that plaintiff “failed to demonstrate through statistical or other competent evidence that [the defendant’s practice] ... had a disparate impact”) (emphasis added); Ramos v. EquiServe, 146 Fed.Appx. 565, 567 (3d Cir. 2005) (same). In any event, the Court is not prepared to rule that disparity of impact may not be established by competent evidence that does not qualify as “statistical”.
Ultimately, the Court need not decide this issue, because Plaintiff has not proffered any such “other competent evidence” of disparate impact in the present case. Defendant’s third argument is that “there is no cause of action for a personal disparate impact—only for institutional disparate impact.” ECF No. 65, at 9 (citing and quoting Aron and Ramos). This Court concurs with the District Court rulings recited in Aron and Ramos to the effect that a plaintiffs “own single instance of adverse impact, ... [is] insufficient, without more, to show disparate impact under Title VII.” Aron, 174 Fed.Appx. at 83; Ramos, 146 Fed.Appx. at 567. By definition, an impact can only be “disparate” in comparison to other impacts.
In the present case, Plaintiffs adverse impact claim is predicated on contentions as to the impact of Defendant’s sexual harassment reporting and response process on her own case. See, e.g., Plaintiffs Brief in Support, ECF No. 46, at 16-19. Plaintiff has not proffered evidence of any other woman who was adversely affected, or any similarly-situated man who was more benignly impacted, by the practices at issue.
Plaintiff argues that “[t]he failures of Defendant’s ,., policy will inevitably be borne disproportionately by female employees as the foreseeable complainants,” and that “[t]hese failures affect every woman who has worked in the Department of Public Works ..., and every female employee still working in the Department of Public Works who may be facing harassment”; and she concludes that “[gjiven that these same policies are still in place; it would be hard to imagine a better result for the next unfortunate woman who comes forward about harassment.” Plaintiffs Brief in Support, ECF No. 46, at 20; Plaintiff's Brief in Opposition, ECF No. 56, at 13.
Even if the Court were to accept Plaintiffs assertions as to shortcomings in Defendant’s harassment reporting policies and her inference as to the likely impact of those policies on potential or hypothetical complainants, the evidence nevertheless falls far short of meeting Plaintiffs burden. A showing that a challenged employment practice would adversely impact a protected class if it were applied is insufficient to show that the practice did disparately impact members of that class. Here, there is simply no evidence that any person other than Plaintiff was ever impacted by the same practices that Plaintiff complains of. Plaintiffs assertion that all female employees are affected because they “may be facing harassment” is speculation.
Y. Conclusion
For the reasons above, Defendant’s August 11, 2016 Motion for Summary Judgment (ECF No. 50) will be granted as to Plaintiffs claim of disparate impact in violation of Title VII, and denied in its remainder; and Plaintiffs August 9, '2016 Motion for Summary Judgment (ECF No. 45) will be denied, both in accordance with this Court’s Order on this date.
. Plaintiff received her Notice of Right to Sue from the EEOC on March 27, 2015. See Amended Complaint, ECF No. 11, at 14, Ex. 1.
. The same legal standard applies to Plaintiffs claims under the Pennsylvania Human Relations Act ("PHRA”) as to her claims under Title VII. See ECF No. 51 at 3 (citing McCloud v. United Parcel Serv., Inc., 543 F.Supp.2d 391, 398 (E.D. Pa. 2008), aff'd, 328 Fed.Appx. 777 (3d Cir. 2009)).
. Id. at 3 (citing Miller v. Thomas Jefferson Univ. Hosp., 908 F.Supp.2d 639, 653-54 (E.D. Pa. 2012), aff'd, 565 Fed.Appx. 88 (3d Cir. 2014)) (emphasis added).
. See ECF No. 51 at 4-5 ("The acknowledgement form ... states that T acknowledge that the Handbook contains the complete text of the Allegheny County Anti Discrimination— Harassment—Retaliation Policy and Complaint and Report Procedure.... I understand that Allegheny County prohibits discrimination against or harassment of any person because of his or her ... sex.... Prohibited conduct includes unwelcome statements or conduct that have the purpose or effect of interfering with another’s work performance or creating an intimidating, hostile, or offensive work environment. I understand that Allegheny County also forbids retaliation against any employee because he or she has reported violations of this policy. I understand that I must report any violations of this policy using the specified Complaint and Report Procedure within this policy.' ”) (citing Defendant's Concise Statement of Material
See id. ("The Complaint/Report Procedure ... provides that "... all employees share ' responsibility for ensuring that the workplace is free from all forms of harassment, discrimination and retaliation, If you believe that this policy has been violated; report the problem immediately using the Complaint and Report Procedure, Make your report of the situation to: the Supervisor OR the Department Director OR the Human Resources Representative for your department OR Allegheny County Department of Human Resources:' Employee Relations. If you choose to discuss the problem first with your supervisor or someone else in your direct chain-of-command and do not get a prompt or satisfactory response, contact .your Director or the Department of Human Resources immediately.’’) (citing ECF No. 52 at ¶ 5) (emphasis ' added).
. The Court notes the absence of any specific information as to either the manner (verbal or written) or content (date/time, location, nature of complaint, identification of perpetrator, victim, witnesses, actions taken ,..) of the required report. It also notes the absence of any specific contact (name, telephone or address) information for the title-designations to whom a report may be made. See Plaintiff's Brief in Opposition, ECF No. 56, at 2 ("The policy refers merely to titles, but nothing indicates anyone explained to Plaintiff who held those titles or hoW to reaph those individuals (the policy lacks even a phone number to call for more information.”)). Compare Defendant’s Reply in Support, ECF No. 65, at 3 (attesting that Plaintiff knew and saw “management-level employees").
. See ECF No. 51 at 5 (“Given that she acknowledged receipt of the County’s reporting procedure,, .and given that she failed to follow it, Plaintiff's claim should be dismissed.”).
. While the Court concurs with Defendant’s citations to evidence that Plaintiff was "satisfied’’ with Supervisor Coda's responses on her behalf, it notes the absence of evidence that Plaintiff was satisfied with either Defendant employer’s recalcitrance to enact any employment consequences on her harasser(s), or her continuing subjection to harassment by Long and other co-workers. See, e.g., ECF No. 51 at 8 (noting that after Coda reprimanded Long for slapping Plaintiff, Kelly asked her if everything was ok and she responded: "[t]hat’s fine. Keep [Long] away from me”); id. at 9 (citing Plaintiff’s testimony that she believed Coda "was doing his best to stop” the harassment and acknowledgment that imposing consequences against a specific individual is difficult "without proof”, i.e., in the face of what the evidence suggests may have been harassment and intimidation conducted in a culture of conspiratorial silence); id. at 11. Cf. id. at 10 (citing as support Jones v. Norton, 2008 WL 282251, at *5 (E.D. Pa. 208)) ("noting that the plaintiff was satisfied with the employer's remedial actions") (emphasis added), Cf. also Plaintiff’s Brief in Opposition, ECF No. 56, at 5 ("Defendants attempt to have this Court circumvent logic by arguing that because Plaintiff accepted the actions taken by her supervisors at the time they were taken, she was satisfied with the ultimate response.”).
. Cf. Plaintiff's Brief in Opposition, ECF No. 56, at 9 ("Before he was transferred away from North Park, Coda assigned Plaintiff to work exclusively at the skating rink, generally a one-person job.”). Cf. also Defendant’s Reply in Support, ECF No, 65, at 6 (stating that, unlike Park Supervisor Coda, Kelly "was a fellow laborer who took care of job assignments when Coda was out of town”).
. Cf. n 4, supra (Defendant’s Handbook reference to Plaintiff's Supervisor as "in [her] direct chain-of-command”).
. See, e.g., Plaintiff’s Brief in Opposition, ECF No. 65, at 3 (”[I]t is undisputed that men repeatedly used a urinal [at] work in front of the Plaintiff. Defendants have known of the existence of the urinal for years and have condoned its use.... Defendants still deny that its use was inappropriate vis-a-vis the Plaintiff and have made no attempts to address the issue or cease its use.”); Plaintiff's Brief in Support, ECF No. 46, at 8 noting that Plaintiff repeatedly witnessed men urinating in front of her and verbally objected) (citing testimony of coworker Schwab); id. ("Allowing men to regularly and openly urinate in front of female employees, in a common area which their work requires they frequent is objectively offensive.... ”).
The Court was highly discomfited by Defendant's statement that "there is no evidence on record to support Plaintiff's assertion that 'Defendants have known of the existence of the urinal for years and have condoned its use.’ ” Defendant’s Reply in Support, ECF No. 65, at 4. The Court notes that Defendant does not, by its wording, deny such knowledge or conduct. If Defendant intends to deny that it is the property owner of the North Park facility, or otherwise deny its knowledge of its North Park garage permanent fixture—i.e., urinal—it should do so more clearly.
. See Plaintiffs Brief in Support, ECF No. 46, at 3.
. But see Plaintiff's Brief in Opposition, ECF No. 65, at 4-5 ("Coda himself denied that he reprimanded Long.”) (citing Coda Deposition at 69-70).
. Cf. Plaintiff’s Brief in Opposition, ECF No. 56, at 9 (noting material fact question regarding presence of co-worker, John "Jack” Schwab, when bloody feminine pad was found).
. ECF No. 51 at 8-9.
.As previously noted in the Opinion on Motion to Dismiss, ECF No, 18, Defendant’s assertion that it took prompt and appropriate remedial action because North Park Supervisor Coda repeatedly warned and reprimanded Plaintiff's co-workers must-be considered together with the allegations, and evidence that sexual harassment and retaliation continued in part because Supervisor Coda was without—or perceived to be without—significant authority to impose meaningful employment consequences, no other inquiry was made and no actions were otherwise taken by Defendant, and Coda's recurrent warnings were therefore protractedly ineffectual.
In response to Defendant’s assertion that "Coda’s remedial actions seem to have worked” because the "incidents tapered off after the spring of 2013” (Long's blowing debris into her truck) and "spring of 2014 (i.e., the feminine pad)”, with no "other incidents of any note .., between spring of 2014 and April 2015”, the Court observes—as does Plaintiff—that Defendant omits Plaintiff’s allegations and evidence of ongoing discriminatory sexual harassment in the form of, e.g., offensive sexual slander. Defendant also omits reference to its first taking other action beginning June, 2014, i.e., employee interviews and "retraining”, and Plaintiff’s re-ássignmenVre-moval to the skating rink until April, 2015. And Defendant omits reference to Plaintiff’s evidence that she was removing her personal property from common areas and avoiding contact to avoid harassment in the face of the Defendant’s ongoing failure to enforce its Title VII workplace obligations. See, e.g., Plaintiff’s Brief in Opposition at 6-7.
. The appropriateness of Defendant's asserted analogy—between a case holding a post-investigation warning of suspension or termination from a manager with apparent authority to impose further employment consequences and Coda’s investigation and warnings—is affected by the material fact questions herein. Cf. ECF No, 51 at 10 (citing Knabe v. Boury Corp., 114 F.3d 407 (3d Cir. 1997)).
. See Plaintiff's Brief in Opposition, ECF No. 56, at 3 ("Whether the paltry investigation after the Plaintiff's June 2014 conversation with Mangretta was reasonable is a question of fact for a jury determination."),; id. at 7-8 (describing investigation and noting "a single 'retraining' session with Long”); Plaintiff’s Brief in Support, ECF No. 46, at 11 ("The investigation itself was opened in June and all interviews were completed by the end of June; yet nothing at all happened pursuant to the investigation until September, when Long was allegedly 'retrained' by Nagle, and the investigation was thereafter closed via letter on September 30 .... Nagle never conducted a second interview with the Plaintiff ... no findings or recommendations were ever disclosed. ...”).
. The Court would be troubled by both aspects of a suggestion that (a) transferring a female employee subject to sexual harassment and retaliation to an isolated work assignment, with a reduction in other working conditions/benefits, is an "appropriate” response or "remedial” to violations of Title VII in the workplace (b) because isolation of the victim adequately reduces direct, personal harassment and intimidation (as opposed to a continued campaign of, e.g., sexual slander).
. Compare ECF No. 51, at 13 ("It is undisputed that Plaintiff never complained to any management-level employee again, further evidence that she failed to avail herself of the County’s reporting procedure.”) with Plaintiff’s Brief in Opposition, ECF No. 56, at 8 (citing evidence of Plaintiff’s reports to Nagle, during investigatory period closed without employment consequences to any co-worker or further communication with Plaintiff, of harassment and retaliation subsequent to their meeting).
. Cf. ECF No. 51 at 12 (identifying "factors indicative of constructive discharge” as “(1) a threat of discharge; (2) suggestions or encouragement of resignation; (3) demotion or reduction in pay or benefits; (4) involuntary transfer to a less desirable position; (5) alteration of job responsibilities....”) (citing Mandel v. M & Q Packaging Corp., 706 F.3d 157, 169-70 (3d Cir. 2013)).
. See Opinion on Motion to Dismiss, ECF No. 18, at 10-12.
. Compare Plaintiffs Brief in Support, ECF No. 46, at 20 (conceding that "Plaintiff is the first employee to complain of sexual harassment since at least January 2008").
. The Court noted in its Opinion on Motion to Dismiss that Plaintiff alleged in her Complaint that Defendant's harassment response policies deter women from working at the Department of Public Works, See Opinion on Motion to Dismiss, ECF No. 18, at 12-13, However, Plaintiff has not adduced any evidence' to support súch allegations for purposes of the pending cross-motions for summary judgment.
Reference
- Full Case Name
- Justina BOGASKI v. COUNTY OF ALLEGHENY, PENNSYLVANIA
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- 1 case
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- Published