J. CURTIS JOYNER, District Judge.
This civil, employment action has been brought before this Court for disposition of the Motion for Summary Judgment of Defendant, Fred Beans Motors of Doylestown, Inc., d/b/a Auto Express of Doylestown. After careful review of the record evidence in this action, the Motion shall be GRANTED IN PART and DENIED IN PART.
On or about January 2, 2017, Plaintiff, Eric Opper began working as an automotive repair technician for Defendant Fred Beans Motors of Doylestown at its Auto Express location at 838 Easton Road in Doylestown, Bucks County, Pennsylvania. (Pl's Compl., ¶s 8, 12; Def's Statement of Undisputed Material Facts ["Def's Statement"], ¶ 18). At the time of his hire, Plaintiff was 51 years old and had spent most of his working life, since 1984, in the automotive repair industry. (Pl's Compl., ¶ 11; Pl's Counterstatement of Material Facts ["Pl's Counterstatement'], ¶ 1).
Fred Beans Motors and Auto Express are both owned by Fred Beans Holdings, Inc., which is the parent company for some 19 automobile dealerships and other businesses, all of which have a centralized Human Resources Department located at 3960 Airport Boulevard in Doylestown, PA. (Complaint, ¶ 8; Def's Statement, ¶s 1, 2; Declaration of Daniel Milewski, annexed as Exhibit "A" to Def's Motion for Summary Judgment, ¶2; Deposition of Daniel Milewski, annexed as Exhibit "E" to Pl's Response to Def's Motion for Summary Judgment ("MSJ"), at p. 114-115). At the time of his hire, Plaintiff was paid at the rate of $15 per hour whereby he was paid for the number of hours worked and not by the job. It was understood that if Plaintiff had a favorable job review after he had worked 60 days, his rate of pay would increase to $16 per hour. Plaintiff in fact did receive a positive 60-day review and the $16 per hour rate in March, 2017. His hourly rate was again increased to $17 per hour two months later, in June, 2017. (Exhibit "A-4" to Def's MSJ).
It was also understood at the time of hire that Plaintiff would obtain his certification to conduct Pennsylvania state emissions inspections and that when he did so, he could command a higher rate of pay. Plaintiff secured his certification in August, 2017 and his rate was then increased to $19 on the "flat-rate"
From all appearances, Plaintiff's job performance was good and thorough, although his production was described as "not better than average." (Exhibit "C" to Def's MSJ, Deposition of William Dannehower, at p. 67). He received favorable performance reviews from his supervisor, William Dannehower, with comments such as: "If every technician was as detailed as Eric, we would be able to deliver the best service;" "Eric does not give up! He will research until he finds the answer. He is Auto Expresses Trainer. He helps all the younger technicians;" and "on time, dependable, and good communication." (Exhibits "H" and "I" to Pl's Response to Def's MSJ).
After Plaintiff's compensation structure was changed from hourly to the flat-rate system, it was Plaintiff's understanding that he was to be credited with 5/10 (1/2) of an hour pay for assisting other technicians with their repair jobs. Plaintiff also came to believe that he wasn't being fully compensated under the flat-rate system for the work he was performing and he began to complain about his pay to his co-workers. (Exhibit "D" to Def's MSJ [Plaintiff's Deposition], pp. 169-187). At times, these complaints took the form of Plaintiff yelling and screaming about his hours being terrible and not being treated fairly, swearing and throwing tools. (Exhibit "B" to Def's MSJ, ¶ 7; Exhibit "F" to Def's MSJ [Deposition of Jeffrey Pursell], pp. 50-55; Exhibit "H" to Def's MSJ, pp. 24-26).
On March 31, 2018, Plaintiff registered an anonymous complaint with Lighthouse Services, Inc., Fred Beans' outside ethics/employee reporting hotline, against one of Auto Express' Assistant Service Managers, Nicholas Burella. Specifically, Plaintiff alleged that Burella had groped him twice and that he had witnessed Burella groping some other employees as well. Plaintiff's Lighthouse report also stated that Plaintiff "told him [Burella] to never touch me again and that it's assault.... I have noticed that my scheduled hours and flat rate hours are going down since this happened. There are also flat rate hours that are unaccounted for as well." (Exhibit "A-5" to Def's MSJ). Plaintiff also lodged a private criminal complaint against Burella with the Plumstead Township Police Department, which initiated an investigation.
Promptly upon receipt of Plaintiff's complaint, Fred Beans Human Resources Director Dan Milewski also commenced an investigation, meeting with William Dannehower, who in addition to being Plaintiff's supervisor was Auto Express' general manager, and subsequently individually interviewing Plaintiff, Burella, Auto Express' other Assistant Service Manager ("ASM") Jeffrey Pursell, and the other auto repair and lube technicians with whom Plaintiff worked. (Exhibits "A-6" - "A-16" to Def's MSJ). At the conclusion of the investigation, Fred Beans' management had just one employee (other than Plaintiff) who variously stated: (1) that he saw Burella touch Plaintiff "in an inappropriate way;" and (2) that he "saw something out of the corner of his eye" but "was not sure what happened when Nick was passing by Eric." (Exhibit "A-13 to Def's MSJ; Exhibit "H" to Def's MSJ, pp. 27-28, 31-335,). Burella denied ever touching Plaintiff or anyone else inappropriately or ever touching Plaintiff or anyone else intentionally. All of the other employees denied having seen or having any knowledge that Plaintiff had been groped or knowledge of any other inappropriate physical contact between any of the employees or between Burella and any of the employees, although most of those interviewed stated that all of them (including Plaintiff) had talked and joked about matters of a sexual nature. (Exhibits "A-6" - "A-16" to Def's MSJ).
As a consequence, the only discipline that Burella was given by Fred Beans was a written warning and then he and the entire Auto Express staff were required to again undergo sexual harassment training and training regarding proper workplace behavior. (Exhibits "A-17" - "A-18"). At the conclusion of the police inquiry, the investigating Plumstead Township police officer and the Bucks County district attorney deemed there to be insufficient evidence to justify the filing of criminal charges
Subsequent to the closing of the investigations into his complaint, Plaintiff came to believe that, in addition to not being properly credited for the work he was doing, Burella was not giving him work and/or was giving jobs that should have been Plaintiff's to other repair technicians. (Exhibit "D" to Def's MSJ, pp. 230-233, 312-314). On the evening of April 27, 2018, an incident occurred after ASM Jeff Pursell read Plaintiff his time sheet. Plaintiff asked if a tire patch job was on the sheet for which Plaintiff believed he should be credited with 2/10 of an hour. When Pursell responded that the job was not on Plaintiff's time sheet, a discussion ensued between the two with Plaintiff waving his arms and, as reported to Dannehower, yelling that he "does not work for free," and "do you know how much these tools cost?" (Exhibit "A-19, "Exhibit "D" to Def's MSJ, pp. 319-328). Dannehower issued Plaintiff a counseling form for the incident which specifically advised Plaintiff that if he had a concern or problem, he was to follow the chain of command and talk to a manager first. The form also contained the following notation:
(Exhibit "A-19" to Def's MSJ).
A second counseling form was written on May 18, 2018 arising out of another incident of Plaintiff complaining that "he should have gotten a job that Matt got. Eric told Matt he should have that job and Matt gave that job to Eric." (Exhibit "A-18," "D," pp. 330-350 to Def's MSJ). On that occasion, William Dannehower again reminded Plaintiff that he "had been told that if he gets frustrated or feels being treated unfairly he needs to discuss with a manager." (Exhibit "A-20;" Exhibit "C," [Dep. Of William Dannehower], pp. 90-92, 109-111, 113-117, 129-139). Then, on July 12, 2018, yet another incident was reported to Dannehower this time by Jeff Pursell that Plaintiff had yelled at him and was angry because he wasn't getting credited with more time for working on a Jaguar. Evidently, Plaintiff had failed to check the driver side rear caliper before putting new brakes on the passenger side. After the customer was notified, he elected to not replace the rear brakes at that time and Plaintiff was directed to put the old parts back on the vehicle. Plaintiff apparently began yelling at Pursell and demanding that he be credited with more time for the work that he had performed. As a result of this outburst, Plaintiff's employment was terminated on July 17, 2018. (Exhibits "A-21 - A-22;" Exhibit "C," pp. 143-156 to Def's MSJ).
Plaintiff subsequently commenced this lawsuit on October 2, 2018 pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000d, et. seq.
The fundamental principles governing motions for summary judgment are articulated in Fed. R. Civ. P. 56, subsection (a) of which provides:
It is axiomatic that in considering a motion for summary judgment, a reviewing court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor.
Further, inferences must flow directly from admissible evidence.
As noted above, Plaintiff here is advancing two claims of employment discrimination under federal law and two claims under Pennsylvania state law—one under common law and one statutory.
For his first cause of action, Plaintiff alleges that he was sexually harassed by Burella, that he was subjected to a sexually hostile work environment and that he was retaliated against for filing a complaint of sexual harassment. As we explained in footnote 3 above, we presume that Plaintiff is proceeding under 42 U.S.C. §2000e-2 which renders certain employment practices unlawful. Subsection (a) of that statute states the following:
This provision not only prohibits discrimination with respect to employment decisions that have direct economic consequences, such as termination, demotion, and pay cuts, but also outlaws the creation or perpetuation of a discriminatory work environment.
The Supreme Court has made it clear that "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated."
"Male as well as female employees are protected against discrimination."
Generally speaking, "[t]o 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."
Recognizing the difficulty inherent in proving that same-sex harassment is "because of sex," the Third Circuit has provided examples by pointing to "several situations in which same-sex harassment can be seen as discrimination because of sex."
In determining whether an environment is "hostile" or "abusive," all of the circumstances must be examined, "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."
Moreover, the basis of an employer's liability for a hostile work environment claim depends on whether the harasser is the victim's supervisor or coworker.
In this case, viewing the evidence in the record before us in the light most favorable to Plaintiff and drawing all inferences in his favor, we find that there exists a genuine issue of material fact as to whether Plaintiff was touched inappropriately by Burella on one and possibly, another occasion if Plaintiff's uncorroborated testimony is accepted by a jury. Regardless however, there is
Further, while this Court does not doubt that the inappropriate touching had a detrimental effect on Plaintiff, as it likely would on any reasonable person, we cannot find that it was so severe or pervasive as to render the workplace "an abusive environment" nor is there evidence that it interfered with Plaintiff's job performance. Again, giving the plaintiff the benefit of the doubt and viewing his evidence in the light most favorable to him, it is one or at most two incidents occurring on one day of which he is complaining. And, in light of the fact that the Auto Express repair and lube technicians—including the plaintiff himself—would frequently talk and make jokes about sexual matters in the shop while they were working, the record strongly suggests that the two incidents at issue were the type of "ordinary socializing in the workplace—such as male-on-male horseplay or intersexual flirtation" which the Supreme Court in
Additionally, as soon as the report which Plaintiff made to Defendant's outside ethics hotline came to light, Defendant's HR Coordinator immediately began investigating. In the process of that investigation, Mr. Milewski promptly called in William Dannehower, Auto Express' general manager and informed him that a sexual harassment complaint had been filed and told him what had been alleged to have happened. Dannehower had no knowledge of any improper behavior; he and Milewski met with Plaintiff on April 2, 2018 and Milewski subsequently individually interviewed all of the auto repair and lube technicians in an effort to determine what, if anything, had occurred. In the course of these interviews, only one other employee stated that he may have seen Burella touch Plaintiff's genital area when Plaintiff was standing by the front counter to the service area. None of the other employees interviewed saw or experienced Burella touch them or any other employee but many of them acknowledged that they and numerous other employees, including Plaintiff, would talk and joke about matters of a sexual nature in the workplace. Burella himself strenuously denied ever touching Plaintiff or any other employee. Because Milewski could not definitively determine that Burella had done what Plaintiff had accused him of doing, he issued a written warning for placement in his personnel file and required Burella and all of the employees to undergo retraining on sexual harassment and appropriate workplace behavior.
In undertaking these actions and regardless of whether Burella was a supervisory or co-employee to Plaintiff, we find that Defendant exercised reasonable care to promptly address the allegations of harassing behavior and took appropriate remedial measures to prevent such behavior from occurring in the future. In light of this evidence, we conclude that Plaintiff has failed to make out a claim for sexual harassment on the basis of a hostile work environment. Accordingly, summary judgment shall be entered on this claim in favor of Defendant.
Plaintiff also asserts that his termination was in retaliation for his making a report of sexual harassment against Burella. In making this claim, Plaintiff invokes Section 704 (a) of Title VII, the so-called "anti-retaliation provision," which is set forth at 42 U.S.C. §2000e-3(a) and reads as follows:
"The anti-retaliation provision seeks to prevent employer interference with `unfettered access' to Title VII's remedial mechanisms."
"A prima facie case of illegal retaliation requires a showing of `(1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action.'"
"Unlike the antidiscrimination provision, the antiretaliation provision is not limited to employer action that affects the terms and conditions of a claimant's employment."
In this case, we find that adequate evidence exists on this record to warrant the conclusion that a prima facie case of discriminatory retaliation has been made. Here, it is clear that Plaintiff made a report of sexual harassment to Defendant's outside ethics hotline on March 18, 2018, that shortly thereafter on April 27, 2018, Plaintiff was written up and counseled by William Dannehower for the first time for an outburst with Jeffrey Pursell. That was followed by a second write-up by Dannehower on May 18, 2018 again for an incident between Plaintiff, Pursell and Burella which Dannehower marked as a "final" warning, with a third write-up occurring on July 17
Of course, the inquiry does not end with the making-out of a prima facie case. Again, subsequent thereto, the burden shifts to the Defendant to produce evidence demonstrating that the employment decision was motivated by a legitimate, non-discriminatory reason. Here, Fred Beans asserts that Plaintiff was terminated because of his repeated outbursts of anger and frustration and for his failure to bring his complaints to his manager, (William Dannehower) and to otherwise follow the "chain of command." There is support for this in the record as a result of the testimony of the various auto repair technicians who were deposed and the written statements/interview summaries of other technicians and lube specialists as well as from the deposition testimony of the plaintiff himself. As a result, the presumption of unlawful discrimination created by the prima facie case disappears and the plaintiff once again resumes his burden of producing evidence which persuades the trier of fact that the true reason for the adverse employment action which he suffered was discrimination and that the reasons given by his employer are a mere "pretext" for discrimination.
In this regard, "[t]he plaintiff `cannot simply show that the employer's decision was wrong or mistaken' but rather `must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reason for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted nondiscriminatory reasons.'"
In rebuttal of Fred Beans' proffered reason for his termination, Plaintiff asks the Court to infer retaliatory motive from Defendant's failure to take any disciplinary actions against him before he registered his sexual harassment complaint against Burella (despite his having had outbursts prior thereto), and from the fact that neither Daniel Milewski nor William Dannehower could recall terminating any other employee in the preceding ten years. This matter is an extremely close call particularly in view of the fact that subsequent to Plaintiff's harassment complaint, Dannehower counseled Plaintiff to follow the chain of command in registering any complaints about his treatment in the workplace. However, in giving Plaintiff the benefit of all potential and reasonable inferences we agree that it is possible that a factfinder could interpret the foregoing facts in such a manner as to find that they cast doubt upon the veracity of Defendant's articulated reasons.
In Count II of his Complaint, Plaintiff also claims that Defendant discriminated against him on the basis of his age, that he was subjected to an ageist hostile work environment and that he was disciplined, treated differently than his younger co-workers, and ultimately terminated in retaliation for his having reported age-related discriminatory comments to H.R. Director Milewski, all in violation of the Age Discrimination in Employment Act, 29 U.S.C. §621, et. seq. Indeed, under 29 U.S.C. §623(a),
It shall be unlawful for an employer —
And, under Section 623(d),
Generally speaking, "[t]o prevail on an intentional age discrimination claim under the ADEA ..., a plaintiff must show that his or her age `actually motivated' or `had a determinative influence on' the employer's adverse employment decision."
Additionally, to sustain a hostile work environment claim under the ADEA, a showing must be made that the workplace was "permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment."
In application, we first note that Plaintiff can certainly satisfy the first three pre-requisites to establishing a prima facie case of age discrimination in that he was 53 years old at the time of his termination and he was clearly qualified for the position in light of his years of experience, favorable performance reviews and pay increases.
Indeed, the sole evidence on this issue comes exclusively from the deposition testimony of the plaintiff himself. According to Mr. Opper, two of his co-workers told him he was an "old man," who was "too slow" and that he "can't do this," asked him "what the hell is wrong with you," and remarked and questioned his ability to engage in sexual activity. (Pl's Dep., Exhibit "A" to Pl's Response in Opposition to Def's MSJ at p. 384). These remarks, which according to Plaintiff pre-dated the filing of his sexual harassment complaint, were reported to Bill Dannehower who "addressed it." (Pl's Dep., Exhibit "A," at pp. 384-386). By Plaintiff's own admission, none of his managers ever called him an old man and Plaintiff further acknowledged that Dannehower himself was a year or so older than he was, that Dannehower had hired him approximately a year and a half before he was terminated, and that Dannehower had given him numerous pay raises over the course of his employment. (Pl's Dep., pp. 382-387). Insofar as disparate treatment is concerned, Plaintiff has proffered nothing to show that he was treated differently than other, younger employees and has not identified any comparator. As a result, we simply cannot find that Plaintiff's age played any role in his alleged discipline or in Defendant's decision to terminate his employment. Plaintiff therefore has failed to make out a prima facie case of age discrimination.
Likewise, while we can imagine that the remarks alleged to have been made by Plaintiff's two co-workers were annoying and hurtful, we cannot find that they were intimidating or so severe or pervasive as to alter the conditions of his employment and create an abusive working environment. Again, Plaintiff himself stated that the remarks were not made by any of his managers and that Dannehower "addressed" the matter of the co-worker's comments by, inter alia, requiring that the offending employees receive re-training on proper workplace behavior. (PL's Dep., pp. 385-386). We therefore conclude that Plaintiff's claim for a hostile, ageist environment also cannot withstand summary judgment.
Finally, there is also no evidence to sustain Plaintiff's claim that Defendant retaliated against him on the basis of his age or because he complained of age discrimination. Yet again, Plaintiff admits that he has no direct evidence that he was terminated because of his age complaint—he simply believes that he was fired because he was a "squeaky wheel," and that Dannehower was "really getting tired of it." A subjective belief or feeling is not evidence, however. For all of these reasons, judgment as a matter of law shall be entered in its entirety in favor of Defendant and against Plaintiff on Count II of the Complaint.
In Count III of his Complaint, Plaintiff asserts a claim under the Pennsylvania Wage Payment and Collection Law, 43 P.S. §260.1, et. seq. ("WPCL"). That statute states in relevant part:
43 P.S. §260.3(a). Pursuant to 43 P.S. §260.9a(a), "[a]ny employee or group of employees, labor organization or party to whom any type of wages is payable may institute actions provided under this act." Thus, it is clear from the language of the statute that the WPCL does not create a statutory right to compensation, [but] rather provides a statutory remedy when the employer breaches a contractual right to earned wages."
In applying these legal principles to the case now before this Court, we again find that evidentiary support for this claim is lacking. To be sure, the only evidence in this record on this point consists of Plaintiff's deposition testimony that he was to have been paid at the rate of 5/10 (1/2) per flat rate hour for anytime when he assisted co-workers in the performance of their repair jobs regardless of whether it took him two minutes or an hour of his time. (Pl's Dep., pp. 170-175). Although Plaintiff stated several times that he was never paid for this time, he acknowledged that he didn't keep notes on when he should have been paid but wasn't and that sometimes his pay was adjusted to include the time. (Pl's Dep., pp. 180-185). Given that it is incumbent upon the plaintiff to produce more than a scintilla of evidence in opposition to a motion for summary judgment and that he can no longer rely upon mere assertions, we cannot find a breach of a contractual duty to pay from the foregoing testimony.
Finally, in Count IV of his Complaint, Plaintiff alleges that he was also terminated because he suffered an injury at work on May 24, 2018 which necessitated that he be treated at the local hospital and follow-up with Defendant's workers' compensation physician. As a result of his injury, Plaintiff was out of work until June 6, 2018.
"Pennsylvania has long subscribed to the at-will employment doctrine," pursuant to which "an employer `may discharge an employee with or without cause, at pleasure, unless restrained by some contract.'"
Given that the Workers' Compensation Act has been substituted for common law tort actions between employees and employers and is the exclusive means for obtaining compensation for work-related injuries, it does provide a basis for a public policy exception to the employment-at-will doctrine.
For all of the reasons outlined above, Defendant's Motion for Summary Judgment is granted in large part and denied only with respect to Plaintiff's claim that he suffered a retaliatory discharge for lodging his sexual harassment complaint. An order follows.
Rather, we assume that Plaintiff is advancing his claims under 42 U.S.C. § 2000e, et. seq. governing equal employment opportunities in general.
