THOMAS M. BLEWITT, Magistrate Judge.
On December 7, 2012, Plaintiff Shauntay Armstead, residing in Hazleton, Pennsylvania, brought this action in the United States District Court for the Middle District of Pennsylvania against Defendant Executive Cleaning & Supply, Inc. ("Executive Cleaning"), Defendant Scott "Houston,"
Plaintiff states that she became employed by Executive Cleaning in or about July 2008 as a cleaning person. (Id., p. 4). Plaintiff was assigned to perform cleaning services at E & B Giftware, a client of Executive Cleaning, on or about September 2008. (Id.). Plaintiff avers that on or about March and April 2009, she reported to Defendant Shannon and then to Defendant Lorraine that she felt harassed and was being treated differently because of her race while assigned to work at E & B Giftware. (Id.). Plaintiff also claims she complained to Defendant Huston at an unspecified time and requested to be transferred out of E & B Giftware because she was being discriminated against. (Id., p. 5). Plaintiff states that Defendant Huston refused to transfer or remove her because Executive Cleaning could not afford to lose the contract with E & B Giftware. (Id.). Finally, Plaintiff contends that shortly after complaining to Defendant Huston about the discrimination, Plaintiff was terminated by Executive Cleaning on or about "May 13, 2009."
As stated, Plaintiff alleges that the staff at E & B Giftware harassed her and discriminated against her due to her race and that Defendants retaliated against her by terminating her shortly after her complaints about the discrimination. Specifically, in Count I of her Complaint, Plaintiff alleges that Defendant Executive Cleaning retaliated against her "for exercising her rights under Title VII in violation ... of the Civil Rights Act of 1964 and 1991, as amended, and 42 U.S.C. §2000e[,] et seq." (Doc. 1, p. 6). In Count II of her Complaint, Plaintiff alleges that Defendant Executive Cleaning's unlawful actions "constitute a violation of Title 43 Pa. Stat. Ann. § 951[,] et seq.[,] of the Pennsylvania Human Relations Act." Plaintiff avers that Defendant Executive Cleaning treated her "in a retaliatory and discriminatory manner solely because of [her] race" and that all Defendants fostered and perpetuated" a hostile and offensive work environment, retaliat[ed] against her because of her expressed opposition to offensive racially related conduct in the work place, subjecting [her] to more onerous working conditions and treating [her] in a disparate manner." (Id., p. 7). Thus, Count I, Title VII retaliation, and Count II, hostile work environment and retaliation under the PHRA, are asserted against only Defendant Executive Cleaning.
In Count III of her Complaint, Plaintiff raises an aiding and abetting claim under the PHRA against the three individual Defendants, Huston, Lorraine Shenyo and Shannon Cara, and she alleges "[t]he unlawful actions of the individual Defendants acting as aforesaid, constitutes an aiding and abetting violation pursuant to Title 43 Pa. Stat. Ann. §951[,] et seq.[,] of the Pennsylvania Human Relations Act." Plaintiff also avers that the individual Defendants, as her supervisors, "are personally liable pursuant to the [PHRA] for aiding and abetting the unlawful race discrimination and retaliation" alleged in her Complaint. (Id., p. 8).
Thus, Plaintiff alleges that Defendants, who were her employer and supervisors, were aware of the racial discrimination and harassment against her at E & B Giftware and, that Defendants retaliated against her for complaining about it. In particular, Plaintiff alleges that soon after she complained about the discrimination at E & B to Defendants, she was terminated by Defendant Executive Cleaning. Plaintiff claims that as a result of Defendants' alleged conduct, "Plaintiff has suffered damages due to pain, suffering, mental anguish, fear, anxiety, sleeplessness, humiliation and severe emotional, psychological and physical stress." (Id., p. 5).
As relief in her Complaint, Plaintiff requests damages due to the loss of income, benefits and earnings in excess of $100,000, due to Defendants' alleged discriminatory actions. (Id., p. 6). Further, Plaintiff requests damages due to loss of future income, benefits, earnings and earnings capacity in excess of $100,000 due to Defendants' alleged discriminatory and retaliatory actions. (Id.). Plaintiff also requests punitive damages. (Id.). Additionally, Plaintiff requests declaratory and injunctive relief. (Id., pp. 8-9).
On June 2, 2014, after the close of discovery, Defendants jointly filed a Motion for Summary Judgment under Rule 56 with respect to all of Plaintiff's claims.
Plaintiff correctly asserts that this Court has federal question jurisdiction over her case pursuant to 28 U.S.C. §1331, as the case is substantively based on 42 U.S.C. §2000e, et seq. Plaintiff also requests this Court to invoke its supplemental jurisdiction, pursuant to 28 U.S.C. § 1367, to consider her state law claims arising under the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.C.S.A. §951, et seq.
In Allen v. Fletcher, 2009 WL 1542767, *2 (M.D. Pa.), the Court outlined the applicable standard to apply when considering a summary judgment motion as follows:
"Material facts" are those which might affect the outcome of the suit. Justofin v. Metropolitan Life Ins. Co., 372 F.3d 517, 521 (3d Cir. 2004).
We consider the following material facts with respect to Plaintiff's discrimination, harassment, and retaliation claims under Title VII and the Pennsylvania Human Relations Act. Further, we consider material facts as they relate to Plaintiff's aiding and abetting claim against the three individual Defendants under the Pennsylvania Human Relations Act.
Plaintiff began employment with Defendant Executive Cleaning in July 2008 and she was assigned by Defendant to E & B Giftware (a client of Executive Cleaning) in September of 2008 to perform cleaning services.
First, Plaintiff claims she was being treated unfairly as it relates to where she was parking when working at E & B. (Doc. 25-1, pp. 35-37). Plaintiff testified in her deposition:
Additionally, Defendant Lorraine Shenyo testified that she had heard from Plaintiff's supervisor Defendant Shannon Cara that E & B was complaining about Plaintiff using the computers and phones at E & B during her work hours and Shenyo thought that E & B staff had called the owner of Executive Cleaning about this matter. (Doc. 25-2, p. 13).
With respect to the parking dispute between Plaintiff and E & B, Defendant Shenyo testified at her deposition:
(Doc. 25-2, p. 13).
Defendant Huston also testified about the progressive problems between Plaintiff and E & B, and stated:
(Doc. 25-3, pp. 8-9).
Defendant Huston then described that the walk from the front of the warehouse at E & B, where Plaintiff was required to park, to the back of the warehouse, where Plaintiff entered the facility, was a five (5) minute walk. (Id., p. 9). Further, Defendant Huston testified that he did not recall Plaintiff ever complaining about the walk being too long from where she was required to park at E & B to where she entered the building. (Id.).
After Plaintiff advised Defendant Lorraine Shenyo that E & B was making her park in the front of the facility and to walk around to the back of the warehouse to enter, Shenyo spoke to E & B personnel and they said Plaintiff could enter the front of the facility but she had to be there by a certain time, i.e., by 3:55 or 3:50 p.m., so that E & B's staff could let her in the building. Plaintiff complains that E & B staff were discriminating against her due to E & B locking their doors at 4:00 p.m. and making her report for work earlier then her shift began. Specifically, Plaintiff testified:
(Doc. 25-1, pp. 45-46).
Plaintiff further testified:
(Id., p. 57).
Plaintiff further testified that she was being treated unfairly as it related to her lunch break at E & B. Plaintiff stated the individual who trained her at E & B was there for approximately ten days and when he would take his lunch break, "he would sit on the couch and fall asleep for like an hour, an hour and 10 minutes and the supervisor would come in and not say anything." (Id., p. 44). Plaintiff claims when she would take her lunch break though, the E & B supervisor "would come in like right as soon as I sat down and take my lunch and literally like hang out in there until I was done eating my lunch. Like the supervisor from E&B would hang out in the [café] area while I was eating my lunch." (Id.).
Plaintiff also testified:
(Id.).
Plaintiff further testified about how she was allegedly treated unfairly and discriminated against at E & B due to her race:
(Id., pp. 46-48).
Defendant Lorraine Shenyo also testified regarding the mopping issue, stating:
(Doc. 25-2, pp. 10-11).
Defendant Huston also testified about an issue as it relates to Plaintiff's usage of E&B's phone. Specifically, Defendant Huston stated:
(Doc. 25-3, p. 8).
Defendant Huston also testified about an issue regarding Plaintiff's use of E&B's computer while on the premises. Defendant Huston testified:
(Doc. 25-3, p. 12).
In fact, Plaintiff admitted she had used the E&B computers, stating:
(Doc. 25-1, pp. 39-40).
Defendant Huston summarized the three incidents at E&B during Plaintiff's employment with Executive Cleaning that lead to her discharge, stating:
(Doc. 25-3, p. 11).
Plaintiff also indicated she made a number of complaints to Defendant Executive Cleaning and to Defendant supervisors regarding her alleged unfair treatment at E&B. Plaintiff stated she first made a complaint to Defendant Shannon Cara, her supervisor, in October 2008, but that Shannon failed to take any action on her behalf. Plaintiff was unable to recall specifically what her initial complaint to Defendant Shannon Cara was about. However, Plaintiff then admitted that she did not initiate making a complaint to Defendant Shannon Cara, rather, somebody from E&B complained about her to Shannon. Plaintiff did not recall what the issue was and, she testified that after she told Defendant Shannon her side of the story, Shannon told her not to worry about it. (Doc. 25-1, pp. 52-53). Plaintiff also stated that Defendant Shannon told her "if there's any issues, [E&B staff will] call us and we'll let you know." Plaintiff said "okay" and then did not complain to Defendant Shannon about any other conduct or actions at E&B which she felt were unfair. (Doc. 25-1, pp. 53-54).
Plaintiff stated that she then started calling Defendant Lorraine Shenyo about her further complaints regarding her alleged unfair treatment at E&B since Defendant Shannon Cara was not doing anything about them. Plaintiff stated that she called Defendant Lorraine Shenyo at least four times. (Id., pp. 51-54, 58). Plaintiff was unable to recall exactly what her complaint was about regarding her first three calls to Defendant Lorraine Shenyo. (Id., pp. 58-60).
The fourth time Plaintiff called Defendant Lorraine to complain about alleged unfair treatment at E&B was in May 2009, and it was over the mopping incident when E&B supervisor Prudence told her to mop cement floors. Plaintiff stated that Defendant Lorraine Shenyo told her "that's not right because we didn't train you to do that. Those offices [at E&B] were supposed to be just swept and garbage taken out." (Id.).
Although Plaintiff stated she was unable to remember the specifics of the phone calls to either Defendant Shannon Cara or Defendant Lorraine Shenyo, Plaintiff testified:
(Id., p. 61).
Plaintiff stated that she definitely told Defendant Lorraine Shenyo in her last phone call that she thought she was being treated unfairly at E&B due to her race, and that she asked Lorraine if she could switch to a different work site. Plaintiff further stated that after she requested a transfer to a different site, Lorraine told her that no other site was currently available. (Id., p. 62).
Plaintiff stated no racial slurs were ever directed towards her at E&B or by Defendants. (Id., p. 51).
Plaintiff concluded her testimony by stating:
(Id., p. 79).
Finally, Defendant Huston stated that based on the complaints E&B made about Plaintiff, and the three events about which he testified (i.e., parking, phone and computer) he terminated Plaintiff via telephone on May 12, 2009. (Id., p. 73 & Doc. 25-2, pp. 15-16).
As previously stated, Plaintiff has sued Defendant Executive Cleaning for retaliation in violation of Title VII and the Pennsylvania Human Relations Act. Further, Plaintiff has sued individual Defendants Scott Huston, Shannon Cara, and Lorraine Shenyo for aiding and abetting under the Pennsylvania Human Relations Act. Defendants argue that Scott Huston, Shannon Cara, and Lorraine Shenyo cannot be held liable under the PHRA for aiding and abetting.
As Defendants point out in their reply brief (Doc. 34, p. 4), Plaintiff did not oppose Defendants Lorraine Shenyo and Shannon Cara from being dismissed in this case. (Doc. 30, p. 15 n. 4). It appears that once discovery was completed, it was revealed that Defendant Lorraine Shenyo was not a supervisor at Executive Cleaning, rather she worked as a secretary administrator. (Doc. 25-2, p. 6). Also, as Defendants point out, "Lorraine Shenyo made a number of references in the record that others [at Executive Cleaning] were supervisors, and not her. (Exhibit B [Doc. 25-2] [NT] 16, 18, 22, 23, 29, 33, 37, 40, 43, 53, 56 & 57)." (Doc. 25, p. 8 ¶ 29). Further, in their reply brief, Defendants correctly state that "there is no evidence that either [Lorraine Shenyo or Shannon Cara] held sufficient supervisory authority or engage in any retaliatory conduct against Plaintiff. . . ." (Doc. 34, p. 4).
Thus, we will grant summary judgment in the favor of Defendants Lorraine Shenyo and Shannon Cara. Therefore, Plaintiff's aiding and abetting claim under the PHRA shall only be addressed as against Defendant Scott Huston.
We first discuss Plaintiff's sole federal claim which is her retaliation claim under Title VII against Defendant Executive Cleaning. As stated above, Plaintiff also raises claims against Defendant Executive Cleaning identical to her Title VII claim under the PHRA.
Title VII "prohibits employers from discriminating against individuals on the basis of their race, color, religion, sex, or national origin." Burton v. Teleflex, Inc., 707 F.3d 417, 426 n. 7 (3d Cir. 2013)(citing 42 U.S.C. §20002-2(a)(2)).
As discussed, Plaintiff alleges that Defendant Executive Cleaning terminated her shortly after she complained to its personnel that she was being harassed and discriminated against by E&B staff due to her race. There is no claim by Plaintiff that any of the personnel of Defendant Executive Cleaning harassed her and discriminated against her due to her race, and no such evidence was presented. Defendants essentially argue that Executive Cleaning cannot be held liable under Title VII for the alleged racial harassment and discrimination against its employee Plaintiff since this conduct was attributable to a third party client of Executive Cleaning and not to its personnel. Defendants also contend that Plaintiff cannot show E&B was a co-employer with Executive Cleaning.
"To establish a prima facie case of retaliation under Title VII, a plaintiff must tender evidence that: "(1) she engaged in activity protected by Title VII; (2) the employer took an adverse employment action against her; and (3) there was a causal connection between her participation in the protected activity and the adverse employment action." Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006).
Thus, as both Plaintiff and Defendants recognize, with regards to Plaintiff's Title VII retaliation claim against Defendant Executive Cleaning, Plaintiff must show that she was engaged in a protected activity, that an adverse employment action was taken against her in response to the exercise of a protected activity, and that a causal link exists between the protected activity and the adverse employment action. See Farrell v. Planters Lifesavers Company, 206 F.3d 271, 279 (3d Cir. 2000).
Plaintiff raises a claim of retaliatory firing for opposing racial harassment and discrimination by E&B staff under Title VII. In Count I of her Complaint, Plaintiff alleges that she complained to Defendants about racial harassment and discrimination while she was assigned by Defendant Executive Cleaning to work at its client E&B in 2008-2009, and that Executive Cleaning, through Defendant Huston, terminated her in May 2009, due to her complaints of discrimination in the workplace. (Doc. 1, p. 6). Plaintiff points out that when Defendant Huston terminated her shortly after her complaints about E&B, he undisputedly told her that he could not risk losing E&B as a client. (Doc. 25-3, p. 12). Defendants argue that Plaintiff cannot establish a prima facie case of Tile VII retaliation since Executive Cleaning cannot be held liable for the alleged racial discrimination by its third party client, E&B.
In McCloud v. United Parcel Service, Inc., 543 F.Supp.2d 391, 401(E.D.Pa.2008)(footnote omitted), the Court stated:
Further, "Title VII's anti-retaliation provisions [42 U.S.C. §2000e-3] protect employees who oppose employment practices made illegal by Title VII." Brangman v. Astrazeneca, LP, 952 F.Supp.2d 710, 721 (E.D.Pa. 2013)(citation omitted). "The Plaintiff must therefore be opposing employment practices made illegal by Title VII." Id.(citation omitted). Also, "case law has established that opposition to an illegal employment practice must identify the employer and the practice — if not specifically, at least by context." Curay-Cramer v. Ursuline Academy of Wilmington, Delaware, Inc., 450 F.3d 130, 135 (3d Cir. 2006).
In our case, Plaintiff's complaints about racial harassment and discrimination to the staff of Defendant Executive Cleaning concerned conduct of the employees of E&B, Defendant's client, and not employees of Executive Cleaning. (See Doc. 29). There is no evidence that Plaintiff complained about racial harassment and discrimination by the staff of Defendant Executive Cleaning. (Id. & Doc. 25-1). However, Plaintiff did testify that she told Lorraine Shenyo in her last telephone call that she felt the staff of E&B were treated her differently due to her race, and she requested to be assigned to a different client of Executive Cleaning. Plaintiff also stated that during her telephone call with Scott Huston on May 12, 2009, when Huston terminated her, she alleged that she was treated unfairly at E&B Giftware because of her race.
Defendants maintain that Executive Cleaning cannot be held liable to Plaintiff under Title VII since it did not directly engage in the alleged harassing and discriminatory conduct, rather its third party client did. (Doc. 28, pp. 10-11). Defendants argue that Plaintiff's opposition to the alleged harassing and discriminatory conduct by E&B staff is not a protected act under Title VII since the discrimination cannot be attributed to Executive Cleaning and its staff. Thus, Defendants state that "[t]he record lacks any evidence in support of the first prima facie element, protected activity by the Plaintiff." (Doc. 28, p. 8). Defendants contend that E&B was not a joint employer of Plaintiff and that "Plaintiff was assigned by Executive Cleaning a location to perform cleaning duties, though she was told at times where to clean on the premises and possible at what times to clean, the [E&B Giftware] did not control any material conditions of Plaintiff[`]s employment." (Doc. 34, pp. 2-3). In fact, Plaintiff testified that when Prudence of E&B directed her to mop cement floors, she did not do so and called Lorraine Shenyo to complain about this incident. The evidence also shows that Plaintiff could be re-assigned to a different client of Executive Cleaning by only the staff of Executive Cleaning. Executive Cleaning and its staff supervised Plaintiff's work and how Plaintiff interacted with E&B and its other clients. Additionally, the evidence shows that Plaintiff could be terminated only by Executive Cleaning and that E&B was not a joint employer of Plaintiff.
Nonetheless, we agree with Plaintiff that her opposition to the alleged harassing and discriminatory conduct by E&B staff, non-employees of Executive Cleaning, may constitute a protected act under Title VII since she presented evidence that Executive Cleaning and its staff knew of the alleged discriminatory conduct and failed to take corrective action. In Costenbader v. Classic Design Homes, Inc., 2010 WL 597456, *3 (M.D.Pa. Feb. 16, 2010), the Court stated:
See also Gentile v. Des Properties, Inc., 2010 WL 597433, *4 (M.D.Pa. Feb. 16, 2010); Guthrie v. Baker, 583 F.Supp.2d 668, 679 (W.D.Pa. 2008)("Although the Court of Appeals has not specifically addressed the scenario of harassment by non-employees, a number of other courts of appeals and district courts have followed the EEOC Guidelines and concluded that employers can be held liable under the circumstances described therein, namely where the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action.")(citations omitted). The Court in Guthrie v. Baker, stated "[t]his theory of liability is grounded not in the harassing act itself ... but rather in the employer's `negligence and ratification' of the harassment through its failure to take appropriate and reasonable responsive action." Id.(quoting Freitag v. Ayers, 468 F.3d 528, 538 (9th Cir. 2006)).
Moreover, "[a] general complaint of unfair treatment is insufficient to establish protected activity under Tile VII." Curay-Cramer v. Ursuline Academy of Wilmington, Delaware, Inc., 450 F.3d at 135(citations omitted). "[T]o succeed on a Title VII retaliation claim, an employee must have an `objectively reasonable' belief that the activity he opposes constitutes unlawful discrimination under Title VII." Ferra v. Potter, 324 Fed.Appx. 189, 192 (3d Cir. 2009)(citation omitted). Thus, in order for our Plaintiff's complaints about her treatment by E&B staff to constitute protected activity under Title VII, a reasonable person must believe that the conduct complained of violated Title VII. Id.(citation omitted); Barber v. CSX Distribution Servs., 68 F.3d 694, 701-02 (3d Cir. 1995)(complaints about unfair treatment in general and expressions of dissatisfaction in the workplace "do[] not constitute the requisite `protected conduct' for a prima facie case of retaliation.").
We find that our Plaintiff's general complaints of unfair treatment by E&B staff twice to Lorraine Shenyo and once to Scott Huston were simply too vague as to why she felt this treatment was due to her race. In light of Plaintiff's testimony detailed above, we find that Plaintiff did not express an "objectively reasonable" belief that her described treatment by E&B staff constituted unlawful discrimination under Title VII. Plaintiff did not specifically explain to either Shenyo or Huston why she felt the treatment she was experiencing by E&B staff was based on her race. In fact, as detailed above, incidents at issue, such as the parking incident, affected anyone entering E&B and not just Plaintiff since the doors were locked at 4:00 p.m. We find that the undisputed evidence in this case is not sufficient to satisfy the requirements of protected activity under Title VII.
As indicated, Plaintiff admitted that she was unable to remember the specifics of her telephone calls to Defendant Lorraine Shenyo, who, as discussed above, was undisputedly not a supervisor at Executive Cleaning. Plaintiff testified:
(Doc. 25-1, p. 61).
Additionally, Plaintiff testified about the May 12, 2009, termination call with Defendant Huston and stated:
(Doc. 25-1, p. 79).
We agree entirely with Defendants who state "Plaintiff's claim that she was being treated unfairly because of her race [by E&B staff] because she had to mop a cement floor (cleaning was one of her duties), which duty Plaintiff refused to do[,] learned that E&B [Giftware] changed their policy on when they locked the door to get into their building for which [Plaintiff] admitted she had no evidence that the E&B [Giftware] was trying to make things difficult on her, . . ., and that she had to park behind the building had no relations to her race." (Doc. 28, p. 12). We also agree with Defendants that "there is absolutely no evidence indicating [that E&B was treating Plaintiff unfairly due to her race] and [Plaintiff's] complaints are not reasonably related to her race." (Id.). Also, as stated, there was no connection to Plaintiff's complaints about unfair treatment by E&B staff to any conduct or practice by her employer, Executive Cleaning.
Based on our discussion of the evidence above, we find that our Plaintiff did not engage in protected opposition conduct. Curay-Cramer v. Ursuline Academy of Wilmington, Delaware, Inc., 450 F.3d at 135(citing Dupont-Laurne, 994 F.Supp. at 823 ("holding that employee's statement was too vague to constitute protected opposition activity where it did not apprize the employer of any practice viewed as discriminatory or accuse anyone at the employing company of engaging in discrimination."); EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1012-13 (9th Cir. 1983)("it must be possible to discern from the context of the statement that the employee opposes an unlawful employment practice."); Ferra v. Potter, supra.
Since we find that Plaintiff failed to show protected activity within the meaning of Title VII, we do not address the issue of whether Plaintiff demonstrated a sufficient causal connection between her complaints about her treatment by E&B staff and her termination from Executive Cleaning in May 2009. See Ferra v. Potter, supra.
Finally, we address Plaintiff's aiding and abetting claim under the PHRA remaining against only Defendant Scott Huston, co-owner and Vice President of Executive Cleaning. "Unlike Title VII, the PHRA provides that it is unlawful for any person or employer `to aid, abet, incite, compel, or coerce' unlawful employment discrimination. 43 P.S. §955(e)." Nelson v. Allan's Waste Water Service, Inc., 2013 WL 4045787, *4 (W.D.Pa. Aug. 8, 2013). "Individual `aiding and abetting liability' under the PHRA is limited to supervisors only." Id.(citation omitted). We agree with Plaintiff that Defendant Huston is a supervisor under the PHRA. Id. However, since we find that Plaintiff's retaliation claim under Title VII against Defendant Executive Cleaning fails, there was no retaliation for individual Defendant Scott Huston to aid and abet. See Kern v. Schuylkill I.U. 29, 2010 WL 3632695, *10 (M.D.Pa. June 23, 2010)(citations omitted); Stepp v. Fairpoint Communications, Inc., 2007 WL 4248559, *9 (W.D.Pa. Nov. 30, 2007)(Court found that since employer's conduct was not discriminatory or retaliatory, "there was no discrimination or retaliation for [supervisor] to aid and abet.")(citing Kaniuka v. Good Shepherd Home, 2006 WL 2380387, *10 (E.D.Pa. Aug. 15, 2006).
Based on the foregoing, we will grant Defendants' Motion for Summary Judgment
An appropriate Order will be issued.
