NITZA I. QUIÑONES ALEJANDRO, District Judge.
This Court is confronted with a motion for summary judgment filed pursuant to Federal Rule of Civil Procedure ("Rule") 56, by Defendants,
On November 5, 2013, Plaintiffs filed an amended complaint against Defendants averring claims for employment discrimination and retaliation. [ECF 9]. Defendants filed an answer on December 30, 2013, and denied all of Plaintiffs' contentions. [ECF 12]. Thereafter, discovery ensued and was completed. On September 3, 2015, Defendants filed the instant motion for summary judgment, [ECF 38], which Plaintiffs have opposed. [ECF 43].
Rule 56 governs the summary judgment motion practice. Fed. R. Civ. P. 56. Specifically, this rule provides that summary judgment is appropriate "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." Id. A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is "genuine" 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). Under Rule 56, the court must view the evidence in the light most favorable to the non-moving party. Galena v. Leone, 638 F.3d 186, 196 (3d Cir. 2011).
Rule 56(c) provides that the movant bears the initial burden of informing the court of the basis for the motion and identifying those portions of the record which the movant "believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden can be met by showing that the nonmoving party has "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case." Id. at 322.
After the moving party has met its initial burden, summary judgment is appropriate if the nonmoving party fails to rebut the moving party's claim by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials" that show a genuine issue of material fact or by "showing that the materials cited do not establish the absence or presence of a genuine dispute." See Rule 56(c)(1)(A-B). The nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party may not rely on bare assertions, conclusory allegations or suspicions, Fireman's Ins. Co. of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982), nor rest on the allegations in the pleadings. Celotex, 477 U.S. at 324. Rather, the nonmoving party must "go beyond the pleadings" and either by affidavits, depositions, answers to interrogatories, or admissions on file, "designate `specific facts showing that there is a genuine issue for trial.'" Id.
Plaintiff Russell contends that she was subjected to employment discrimination, a hostile work environment, and retaliation in violation of Title VII, §1981, and the PHRA, as well as violations to her due process rights, and intentional infliction of emotional distress. These claims are each addressed below.
Plaintiff Russell asserts claims under Title VII, §1981, and the PHRA for disparate treatment based on her race and gender. Plaintiff Russell contends that Defendants undertook various adverse employment actions that were unlawfully based on her race and gender. Defendants move for summary judgment on Plaintiff Russell's employment discrimination claims.
Title VII and the PHRA prohibit employers from discriminating against employees on the basis of the employee's race and/or gender. See 42 U.S.C. §2000e-2(a);
Under the McDonnell Douglas framework, a plaintiff must first make a prima facie case of discrimination by producing evidence to show that the plaintiff: (1) is a member of a protected class; (2) is qualified for the job which she sought to attain; (3) suffered an adverse employment action; and (4) that the action occurred under circumstances that could give rise to an inference of discrimination or that similarly situated persons who are not members of the plaintiff's protected class were treated more favorably. Walker v. Centocor Ortho Biotech, Inc., 558 F. App'x 216, 218 (3d Cir. 2014); Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008); Warfield v. SEPTA, 460 F. App'x 127, 129-30 (3d Cir. 2012).
In their motion, Defendants argue that Plaintiff Russell's discrimination claims based on race and gender fail because she did not present evidence to demonstrate that she experienced an adverse employment action. The Third Circuit has defined "an `adverse employment action' as an action by an employer that is `serious and tangible enough to alter'" either an employee's compensation, terms, conditions, or privileges of employment. Mieczkowski v. York City Sch. Dist., 414 F. App'x 441, 445 (3d Cir. 2011) (quoting Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001)). Written reprimands and other disciplinary actions can constitute such adverse actions, but only if they "effect a material change in the terms or conditions of [the] employment." Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir. 2001). "Minor actions, such as lateral transfers and changes of title and reporting relationships, are generally insufficient to constitute adverse employment actions." Langley v. Merck & Co., Inc., 186 F. App'x 258, 260 (3d Cir. 2006). Unnecessary derogatory comments also do not rise to the level of adverse employment actions. Middleton v. Deblasis, 844 F.Supp.2d 556, 566 (E.D. Pa. 2011). Investigations, separate from any negative consequences that may result from them, also do not generally constitute adverse employment actions. Henry v. City of Allentown, 2013 WL 6409307, at *7 (E.D. Pa. Dec. 9, 2013); see also Boandl v. Geithner, 752 F.Supp.2d 540, 564 (E.D. Pa. 2010) (finding that a referral for an investigation that resulted in no ramifications for the employee did not constitute an adverse employment action). Further, Title VII "do[es] not provide relief for unpleasantness that may be encountered in the work place. Rather [it] provide[s] a remedy only if discrimination seriously and tangibly altered the employee's ability to perform the job or impacted the employee's job benefits." Walker v. Centocor Ortho Biotech, Inc., 558 F. App'x 216, 219 (3d Cir. 2014) (citing Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004)).
In response to Defendants' challenge as to the requisite adverse employment action, Plaintiff Russell identifies the following conduct as adverse employment actions:
(Pl.'s Opp'n at 13). Notably, despite Plaintiff Russell's obligation to provide specific citations to record evidence to support her version of these purported material facts, she provides no cites but merely states the above examples as the adverse actions. Rule 56 specifically requires a plaintiff who contends that a fact is genuinely disputed to support the assertion by: "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials. . . ." Fed. R. Civ. P. 56(c)(1)(A) (emphasis added). In addition, on summary judgment, a district court is not required to undertake an independent search of the record, but need only consider "cited materials." Id. at 56(c)(3). Here, Plaintiff Russell has undertaken very little, if any effort, to cite to "particular parts of materials in the record," to support her alleged adverse employment actions and, instead, merely references the alleged actions without specific citations. This is improper and insufficient to meet her summary judgment burden.
Notwithstanding this critical failure to provide adequate record citations, the record cites Plaintiff Russell does provide elsewhere in her "statement of disputed material facts," pertaining to the alleged adverse employment actions, are primarily to the EEOC's determination letter. This letter, however, is not admissible evidence on which Plaintiff Russell can rely to meet her evidentiary burdens. As such, it cannot, and does not, suffice at the summary judgment stage.
It is well-settled in this Circuit that EEOC determination letters are not per se admissible. Coleman v. Home Depot, Inc., 306 F.3d 1333, 1335 (3d Cir. 2002). Consistent with the reasoning in Coleman, district courts herein have been reluctant to adopt or rely upon such findings, for a variety of reasons, including, in particular, their lack of citation to record evidence and general hearsay nature. See, e.g., Rozier v. United Metal Fabricators, Inc., 2012 WL 170197, at *4 (W.D. Pa. Jan. 19, 2012) (finding EEOC determination letter to be too unreliable to consider for summary judgment purposes); Hodge v. Superior Court of V.I., 2009 WL 3334594, at *2-3 (D. V.I. Oct. 14, 2009) (holding that EEOC determination letter was "no evidence at all" for purpose of summary judgment due to a lack of detailed factual findings or specific reference to a record); Sarmiento v. Montclair State University, 513 F.Supp.2d 72, 90-91 (D. N.J. 2007) (finding that EEOC determination letter was not competent evidence to be considered on summary judgment motion because it contained vague and insufficient conclusions concerning the types of violations found); Brundage v. Int'l Ass'n of Bridge, Structural, and Ornamental Ironworkers, Local # 401, 2007 WL 3119856, at *9 (E.D. Pa. Oct. 24, 2007) (holding that EEOC determination letter could not create disputed issue of material fact, in part, because it relied on hearsay statements and unattributed impressions); Jackson v. Light of Life Ministries, Inc., 2006 WL 2974162, at *6 (W.D. Pa. Oct. 16, 2006) (finding that EEOC determination letter was not sufficient to overcome summary judgment motion); Rizzo v. PPL Service Corp., 2005 WL 913091, at *11-12 (E.D. Pa. Apr. 19, 2005) (declining to consider EEOC determination letters on summary judgment).
A review of the EEOC determination letter relied upon by Plaintiff Russell raises many of the same concerns discussed in the aforementioned opinions. This EEOC letter includes a brief restatement of Plaintiff Russell's allegations, and a summary of the agency's factual findings without direct attribution to a specific record source. The letter also references the purported "testimony of numerous witnesses," but fails to identify either the witnesses or the source for any of these otherwise hearsay statements. (See [ECF 47-22]). These critical omissions lead this Court to conclude, as did the other courts in the cases noted above, that the EEOC determination letter cannot be relied upon for the purpose of meeting Plaintiff Russell's summary judgment burdens and, therefore, cannot create or infer the existence of a disputed issue of material fact. Because Plaintiff Russell has failed to present any admissible evidence of an adverse employment action, her claims for racial and gender discrimination under Title VII, the PHRA and §1981 fail, as a matter of law, and are dismissed.
As to Plaintiff Russell's claims for retaliation, these claims, like her other discrimination claims, are subject to the McDonnell Douglas burden-shifting analysis. Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006). To establish a prima facie case of retaliation, "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.'" Id. at 340-41 (quoting Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995)). An "adverse employment action" in the context of a retaliation claim is an action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68. If a plaintiff establishes a prima facie case of retaliation, the court must then turn to the subsequent steps in the McDonnell Douglas framework previously outlined.
Defendants argue that Plaintiff Russell's retaliation claims must be dismissed because she has failed to support them with any admissible evidence of an adverse employment action. Plaintiff Russell's response relies upon the same inadmissible evidence, i.e., her EEOC charge and the EEOC determination letter (discussed above), to support her retaliation claims. For the same reasons discussed, this inadmissible evidence is insufficient for Plaintiff Russell to meet her summary judgment burden. Accordingly, Plaintiff Russell's retaliation claim is dismissed.
Plaintiff Russell also asserts claims for hostile work environment premised on alleged unlawful conduct directed at her because of her race and gender/sex. Specifically, Plaintiff Russell contends that she was subjected to a hostile work environment by way of various statements made to her or in her presence that were derogatory in nature with respect to her race and gender/sex. Defendants seek dismissal of these claims on the basis that Plaintiff Russell has failed to present evidence to show that the conduct was sufficiently severe, regular and/or pervasive.
An employee may establish a Title VII violation by proving that discrimination based on sex or race created a hostile or abusive work environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). Title VII is violated if an employee is subjected to a workplace "permeated with discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the [plaintiff's] employment and create an abusive working environment. . . ." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal brackets and quotation marks omitted). The work environment must be objectively hostile or abusive; to wit; meaning that a reasonable person would find it to be hostile or abusive. Id.
To establish a prima facie hostile work environment claim, a plaintiff must show: (1) intentional discrimination because of her gender or race; (2) regular and pervasive discrimination; (3) a detrimental effect; (4) that the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) respondeat superior liability. Mandel v. M&Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013). "The first four elements establish a hostile work environment and the fifth element determines employer liability." Id. (citing Huston v. Procter & Gamble Paper Prods. Corp., 368 F.3d 100, 104 (3d Cir. 2009)). In determining whether these elements are established, courts must evaluate the record "as a whole," focusing "not on individual incidents, but on the overall scenario." Cardenas, 269 F.3d at 261 (quoting Durham Life Ins. Co. v. Evans, 166 F.3d 139, 149 (3d Cir. 1999)).
A plaintiff must show "`by the totality of the circumstances, the existence of a hostile or abusive environment which is severe enough to affect the psychological stability of a minority employee.'" Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir. 1996) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990)). To determine whether the conduct was "regular and pervasive," a court must consider all the circumstances, including the frequency of the conduct, its severity, whether the conduct was physically threatening or humiliating or a mere offensive utterance, and whether the conduct unreasonably interfered with the employee's work performance. Clark v. Cnty. Sch. Dist. v. Breeden, 532 U.S. 267, 27-71 (2001); Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998); Mandel, 706 F.3d at 168. Offhand comments and isolated incidents, unless extremely serious, do not rise to the level of discriminatory changes in the terms and conditions of employment. Id. at 788; see also Drinkwater v. Union Carbide Corp., 904 F.2d 853, 863 (3d Cir. 1990) (holding that two comments by a defendant were insufficient to support a hostile work environment claim). Rather, the conduct must be "so severe or pervasive as to constitute an objective change in the conditions of employment." Abramson v. William Paterson College of N.J., 260 F.3d 265, 262 (3d Cir. 2001) (citations omitted). "[H]ostile environment claims must demonstrate a continuous period of harassment. . . ." Drinkwater, 904 F.2d at 863; see also, Andrews, 895 F.2d at 1484 (noting that "[if] the discrimination were sporadic, it would be nearly impossible to sustain a jury verdict against a supervisor."); Bonora v. UGI Utils., Inc., 2000 WL 1539077, at *4 (E.D. Pa. Oct. 18, 2000) (10 incidents over two years not sufficiently pervasive); Johnson v. Souderton Area Sch. Dist., 1997 WL 164264, at *6 (E.D. Pa. Apr. 1, 1997) (nine incidents over three years not pervasive or regular); Rosati v. Colello, 2015 WL 1475505, at *9 (E.D. Pa. Apr. 2, 2015) (three comments over four months not sufficient).
As such, "isolated incidents" of harassment do not qualify as "pervasive and regular." Ocasio v. Lehigh Valley Family Health Ctr., 92 F. App'x 876, 880 (3d Cir. March 11, 2004). Nor does the "`mere utterance of an . . . epithet which engenders offensive feelings in an employee.'" Lawrence v. F.C. Kerbeck & Sons, 134 F. App'x 570, 572 (3d Cir. 2005); see also Schwapp v. Town of Avon, 118 F.3d 106, 110-11 (2d Cir. 1997) ("For racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity, meaning that instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.").
To support her hostile work environment claim based on sexual harassment, Plaintiff Russell points to the following comments made by Defendant Singleton, her supervisor; to wit: Singleton asked Russell whether she was married, "what type of man did (she) like," and whether she preferred being "fixed." (Pl.'s Opp'n at 13-14). While these statements are not to be condoned in the workplace, Plaintiff Russell has not sustained her burden of showing the required severity and pervasiveness to support a claim for hostile work environment. See Mandel, 706 F.3d at 168. At best, she has identified a few, sporadic comments which alone are insufficient to establish a hostile work environment.
To support her hostile work environment claim based on gender and race, Plaintiff Russell contends she was called "racial/gender derogatory terms by many people in the department." (Pl.'s Opp'n at 13). As evidentiary support, however, Plaintiff Russell again relies primarily on the inadmissible EEOC determination letter and her own deposition testimony, in which she testified that Lieutenant Vann referred to her as a "bitch," and Officer Spicer called her a "black bitch." This evidence alone, however, is insufficient to establish the severe, regular and pervasive prerequisite for a claim of hostile work environment. Plaintiff Russell also points to (though provides little by way of admissible evidence to support) a few, sporadic offhand comments that are certainly offensive. However, these sporadic events and incidents (even if substantiated with evidence) do not rise to the level of severe and pervasive discrimination, but rather are in the nature of isolated incidents. As such, Plaintiff Russell has not and cannot meet her burden of showing a prima facie case of a hostile work environment based on either her gender or race. Because Plaintiff has failed to establish a prima facie claim for hostile work environment, Defendant's motion for summary judgment on this claim is granted.
Plaintiff Russell also claims that her procedural and substantive due process rights were violated by Defendants' denial of her application for Heart and Lung benefits.
"[A] plaintiff . . . who seeks to establish a procedural due process claim must demonstrate that `(1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of `life, liberty, or property,' and (2) that the procedures available to him did not provide `due process of law.'" Biliski v. Red Clay Consolidated Sch. Dist. Bd. of Educ., 574 F.3d 214, 219 (3d Cir. 2009) (citations omitted); Hill v. Borough, 455 F.3d 225, 233-34 (3d Cir. 2006). The mere deprivation of an interest protected by the due process clause "is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law." Zinermon v. Burch, 494 U.S. 113, 125 (1990). In the public employment context, the due process clause requires that a public employee, such as Plaintiff Russell, be given "notice of the charges against [her], an explanation of the employer's evidence, and an opportunity to present [her] side of the story." McDaniels v. Flick, 59 F.3d 446, 454 (3d Cir. 1995).
In order "[t]o establish a substantive due process claim, a plaintiff must prove the particular interest at issue is protected by the substantive due process clause and the government's deprivation of that protected interest shocks the conscience." Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008). For conduct to meet the "shocks the conscience" standard, it must "encompass[] `only the most egregious official conduct.'" United Artists Theatre Circuit, Inc., v. Twp. of Warrington, Pa., 316 F.3d 392, 400 (3d Cir. 2003) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)).
Here, Defendants do not challenge that the first prong for Plaintiff Russell's procedural and substantive due process claims is met; i.e.: that Plaintiff Russell has a constitutionally-protected property interest in Heart and Lung benefits. Defendants argue, however, that Plaintiff Russell has been provided all of the process that she was due and that she cannot show conduct by Defendants that "shocks the conscience." Plaintiff Russell contends that she was deprived of her constitutionally recognized rights to a "fair Heart & Lung [Benefits] hearing," because "Captain Singleton subverted the Heart & Lung process when he made a false statement which caused the denial of Russell's Heart & Lung benefits." Like her other claims, however, Plaintiff Russell's procedural and substantive due process claims fail because she has not cited any admissible evidence to support them. Instead, Plaintiff Russell again relies solely on the inadmissible EEOC determination letter. For the same reasons discussed above, this she cannot do to overcome summary judgment.
Moreover, the undisputed evidence submitted by Defendants (and nowhere refuted by Plaintiff Russell's scanty evidence) establishes that Plaintiff Russell participated in a Heart and Lung benefits hearing and pursued an appeal of the denial of benefits. Notably, Plaintiff Russell does not assert nor does she present any evidence that she was not provided notice of the denial of her Heart and Lung benefits or an explanation of her employer's evidence. To the contrary, the evidence shows that she participated in a hearing at which her employer's evidence was presented, and at which she was given an opportunity to testify. Cf., Hayburn v. City of Philadelphia, 2012 WL 3238344, at *4-5 (E.D. Pa. Aug. 7, 2012) (denying a plaintiff police officer's procedural due process claim premised on the denial of Heart and Lung benefits where she was provided notice, an explanation of her employer's evidence and an opportunity to tell her side of the story). In addition, Plaintiff Russell has pointed to no admissible evidence of conduct by Defendants that "shocks the conscience." Accordingly, Plaintiff Russell's due process claims fail as a matter of law.
Plaintiff Sadowski asserts claims for retaliation under Title VII and 42 U.S.C. §1983. Specifically, he alleges that Defendants unlawfully retaliated against him for providing truthful statements in the course of a disciplinary investigation conducted by Captain Kelly regarding Officer Dial's alleged use of derogatory and demeaning language towards Plaintiff Russell.
As set forth above, to establish a prima facie case of retaliation under Title VII, a plaintiff must point to evidence that: "(1) he engaged in activity protected by Title VII; (2) the employer took an adverse employment action against him; and (3) there was a causal connection between his participation in the protected activity and the adverse employment action." Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995). Similarly, Plaintiff Sadowski's First Amendment based retaliation claim requires that Plaintiff Sadowski show, inter alia, an adverse employment action. Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979, 986 (3d Cir. 2014). Defendants argue that Plaintiff Sadowski's retaliation claims must be dismissed because he failed to present sufficient evidence to show that he suffered an adverse employment action. This Court agrees.
In response to Defendants' motion, Plaintiff Sadowski points to the following conduct as constituting the requisite adverse employment action: "being singled out for sick checks — outside the usual practices of the department;" and "being denied access to medical care and access to EAP by Lieutenant Feinman." Like Plaintiff Russell, Plaintiff Sadowski relies solely on the EEOC determination letter to respond to and meet his summary judgment burden as to his retaliation claims. For the same reasons discussed above, this he cannot do. As such, Plaintiff Sadowski has failed to meet his summary judgment burden and his retaliation claims are dismissed.
Plaintiff Russell and Plaintiff Sadowski both assert state law claims for intentional infliction of emotional distress. Defendants argue that these claims should be dismissed because, inter alia, Plaintiffs have failed to produce the requisite medical evidence of the alleged injuries. This Court agrees.
To establish a claim of intentional infliction of emotional distress under applicable Pennsylvania law, Plaintiffs must show that Defendants' conduct was: (1) extreme and outrageous; (2) intentional or reckless; and (3) caused severe emotional distress. Wisniewski v. Johns Manville Corp., 812 F.2d 81, 85 (3d Cir. 1987). The Pennsylvania Supreme Court has enunciated an objective standard for intentional infliction of emotional distress, permitting recovery only "where a reasonable person normally constituted would be unable to adequately cope with the mental stress engendered by the circumstances of the event." Kazatsky v. King David Mem'l Park, 527 A.2d 988, 993 (Pa. 1987). Further, liability for intentional infliction of emotional distress is limited to those cases in which the conduct complained of is extreme and outrageous. Dawson v. Zayre Dep't Stores, 499 A.2d 648, 469 (Pa. Super. Ct. 1985). Extreme and outrageous conduct is conduct which is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Strickland v. University of Scranton, 700 A.2d 979, 987 (Pa. Super. Ct. 1997). Generally, it is insufficient "that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort." Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998). Rather, "recovery for the tort of intentional infliction of emotional distress [has been] reserved by the courts for only the most clearly desperate and ultra-extreme conduct. . . ." Id. at 754. It is for the court to determine, in the first instance, whether the actor's conduct can reasonably be regarded as so extreme and outrageous as to permit recovery. Dawson, 499 A.2d at 649. "The requisite `intention' which one must display for liability to be imposed is knowledge on the part of the actor that severe emotional distress is substantially certain to be produced by his conduct." Hoffman v. Memorial Osteopathic Hosp., 492 A.2d 1382, 1386 (Pa. Super. Ct. 1985).
A claim of intentional infliction of emotional distress also requires "expert medical confirmation that the plaintiff actually suffered the claimed emotional distress." Kazatsky, 527 A.2d at 995; see also Bey v. City of Philadelphia, 2007 WL 1575410, at *6 (E.D. Pa. May 24, 2007). Here, apart from their own self-serving deposition testimony, neither Plaintiff has offered any medical evidence to sustain their claims of intentional infliction of emotional distress. As such, Plaintiffs have not met their summary judgment burden on these claims. Cf., Shaffer v. Burger King Corp., 2001 WL 1167392, at *2 (E.D. Pa. Sept. 28, 2001) (dismissing intentional infliction of emotional distress claims on summary judgment because the plaintiff failed to present medical evidence of the injury); Johnson v. Greyhound Lines, 1998 WL 633699, at *2 (E.D. Pa. Aug. 24, 1998) (same).
As discussed above, Plaintiffs have largely failed to meet their summary judgment burden under Rule 56 by failing to "cite to particular parts of materials in the record" that create genuine disputes as to material facts regarding essential elements of their respective claims. Therefore, for the foregoing reasons, Defendants' motion for summary judgment is granted, and Plaintiffs' claims are dismissed. An Order consistent with this Memorandum Opinion separately follows.
