WENDY BEETLESTONE, District Judge.
Defendant Silvers, Langsam & Weitzman, P.C. ("the Firm" or "Defendant") moves for summary judgment on Plaintiff Kimberly Hayes's sexual harassment claims. For the reasons that follow, Defendant's motion will be denied.
Hayes worked as a paralegal at the Firm for two months, beginning on January 8, 2018. Hayes asserts that, as an employee of the Firm, she "was subjected to a hostile work environment based upon her sex on an almost weekly basis." Specifically, Hayes alleges that her supervising attorney, Frank Breitman, would near-weekly grab her by the shoulder and waist and ask, "How's my favorite girl doing?" and occasionally brush against her buttocks. In addition, Hayes identifies seven alleged instances of "unwelcome and inappropriate comments" from members of the firm: 1) Todd Fiore, the Firm's IT contractor, stating to Breitman, "Look at her, she has a nice ass," and Breitman responding, "Yeah, the things I would like to do to that;" 2) Breitman telling Hayes she was "the prettiest woman [he'd] ever laid eyes on;" 3) Breitman asking the Firm's office manager, Dina Korenberg, whether she would let him watch her have sex with a woman and then asking Hayes whether she was interested in women "because it would be hot to watch;" 4) Breitman telling Hayes "your boobs look good;" 5) Adrian Moody, an attorney at the Firm, telling Hayes, "How are you a white girl, you have a big black booty?;" 6) Korenberg telling Hayes to dress more like another paralegal who wore low cut shirts; and 7) Dean Weitzman, the Firm's managing partner, saying "That's what I like to see, now I have something sexy to look at," after Hayes's cubicle was moved close to his office.
On March 9, 2018, Hayes was terminated from the Firm on the stated belief that she had misrepresented the Firm's involvement in a real estate matter. Then, in February 2019, Hayes sued the Firm, claiming violations of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and the Pennsylvania Human Resources Act ("PHRA"), 43 P.S. Sec. 951, et seq.
"[S]ummary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Alabama v. North Carolina, 560 U.S. 330, 344, 130 S.Ct. 2295, 176 L.Ed.2d 1070 (2010) (citations and internal quotations omitted). In ruling on a summary judgment motion, a court must "view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment." Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (internal quotations and alterations omitted). "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." Abington Friends Sch., 480 F.3d at 256. However, "unsupported assertions, conclusory allegations, or mere suspicions" are insufficient to create an issue of fact and defeat summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.Supp.2d 490, 493 (E.D. Pa. 2010) (citing Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989)).
Title VII prohibits employment discrimination on the basis of sex, and the Supreme Court has interpreted Title VII as providing employees protection from a hostile work environment; sexual harassment in the workplace may create a hostile work environment and may constitute discrimination on the basis of sex. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). "To succeed on a hostile work environment claim, the plaintiff must establish that 1) the employee suffered intentional discrimination because of his/her sex, 2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected the plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the existence of respondeat superior liability." Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013). As to "severity" and "pervasiveness," these "are alternative possibilities: some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable, conduct will contaminate the workplace only if it is pervasive." Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017). Ultimately, "[w]hether an environment is hostile requires looking at the totality of 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." Id. (internal quotations omitted). By contrast, "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to" a violation of Title VII. Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal quotations and citations omitted). The same standards apply to claims under the PHRA. See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996).
Defendant advances two main arguments in favor of summary judgment. First, Defendant argues that Hayes is not credible and that her evidence is either inadmissible or insufficient to create an issue of fact. Defendant suggests that, to the extent Hayes was having issues with coworkers, these issues were not sexual in nature; Defendant also implies that Hayes fabricated her allegations in response to her termination. Second, Defendant argues that even if the things Hayes said happened, happened, she has not established a prima facia case of sexual harassment because "three discreet incidents of merely crude comments cannot constitute `severe or pervasive' conduct that would detrimentally affect a reasonable woman in her position."
However, summary judgment is inappropriate in this case because there remain disputed questions of material fact. Defendant's description of Hayes's claim encapsulates this factual dispute. Defendant asserts that Hayes's claim is based on only "three ... incidents," and it identifies these incidents as "(1) Information Technology independent contractor, Todd Fiore commenting that Ms. Hayes `had a nice ass,' to which attorney Frank Breitman responded by stating `the things he would do to it,' and that he would like to see Ms. Hayes have sex with another woman; (2) Mr. Weitzman stating that he had `something sexy to look at,' when Ms. Hayes moved her desk to a location in front of Mr. Weitzman's office." Hayes, however, identifies additional incidents—Breitman's touching, Breitman's comments about her appearance, Moody's comment about her ass, and Korenberg's statement about her clothing.
Drawing all reasonable inferences in favor of Hayes, the Court finds that Hayes has put forth enough evidence to move ahead to trial. Hayes specifically identified at least seven discreet instances of harassing behavior, as well as repeated advances from Breitman and indifference from the lead paralegal. She also produced texts sent well before the inception of this litigation suggesting that she was having issues with attorneys at the firm.
Critically, these issues of fact are also material. Though Defendant asserts that the harassment Hayes experienced was not "severe or pervasive," this is not a case in which "[p]laintiff fails to assert that the alleged unwelcome sexual conduct occurr[ed] with any specific frequency or in any regular pattern," Benny v. Com. of Pa., Dep't of Corr., 400 F.Supp.2d 831, 837 (W.D. Pa. 2005), aff'd sub nom., Benny v. Pennsylvania, Dep't of Corr., State Corr. Inst. at Somerset, 211 F. App'x 96 (3d Cir. 2006) (granting defendant's motion for summary judgment on hostile work environment claim), or where plaintiff alleges isolated instances of harassment across years or months, see Saidu-Kamara v. Parkway Corp., 155 F.Supp.2d 436, 440 (E.D. Pa. 2001) (granting defendant's motion for summary judgment where plaintiff cited only "four incidents" occurring "over nearly a year and a half"); Barnett v. Lowes Home Centers, LLC, 2019 WL
Because material facts remain in dispute, Defendant's motion for summary judgment shall be denied.
An appropriate order follows.
Hayes may, however, rely on information in her interrogatory answers, and that information will be credited on summary judgment. See Blystone v. Owens Illinois, Inc., 2020 WL 375886, at *2 (E.D. Pa. Jan. 22, 2020) (including "interrogatory answers" as examples of "materials in the record" which may be used to create a genuine issue of material fact). Though Defendant asserts Hayes's deposition testimony should "trump" her interrogatory answers, Defendant cites no caselaw to support the proposition that interrogatory answers should be disfavored at summary judgment. To the extent that there is some tension between Hayes's deposition testimony and her interrogatory answers, it is for a trier of fact to determine what occurred. Golden Bridge Tech., Inc. v. Apple Inc., 937 F.Supp.2d 504, 522 (D. Del. 2013), adhered to on reconsideration (Apr. 25, 2013), aff'd, 758 F.3d 1362 (Fed. Cir. 2014)
A plaintiff may only unilaterally dismiss a claim if a notice of dismissal has been filed before the opposing party serves a motion for summary judgment; if the notice is filed after such time, dismissal may only be by court order. Fed. R. Civ. P. 41(a). Though Hayes claims in her Opposition that she voluntarily withdrew her retaliation claims before the end of discovery, no such notice appears on the record. Therefore, Counts II & IV can only be dismissed by court order, and the Court construes Hayes's acquiescence to dismissal as a request for dismissal. Counts II & IV shall be dismissed with prejudice.