SYLVIA H. RAMBO, District Judge.
Presently before the court is Defendants' joint motion for summary judgment (Doc. 38) challenging the adequacy of Plaintiff's claims against his former employer and a state police investigator for discrimination, retaliation, and constructive discharge in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e ("Title VII"), and the Pennsylvania Human Relations Act, 43 Pa.
Plaintiff Maurice Burton ("Plaintiff") is an African-American male, formerly employed as a State Trooper with the Pennsylvania State Police ("PSP").
During the course of his employment at PSP headquarters, Plaintiff became acquainted with Pamela Yandrich ("Yandrich"), a Caucasian female who was employed as the E-Library Administrator at the headquarters. (Doc. 39, ¶ 14; Doc. 19, ¶ 17.) Plaintiff's job duties necessitated frequent interaction with Yandrich and, as a result, the two became friends and often socialized while in the office. (Doc. 19, ¶¶ 18-19.) At some point in 2007, several of Plaintiff's superiors noticed that Plaintiff and Yandrich "were spending an extraordinary amount of time together." (Doc. 44-15, p. 26.) In an interview conducted by Defendant Lieutenant Kathy Jo Winterbottom ("Lt. Winterbottom"), an investigator with the Internal Affairs Division at PSP, Major Stein explained,
(Id.) Initially, Major Stein and Lt. Harrison addressed the matter informally by asking Plaintiff and Yandrich to reduce the amount of time they spent together in the office. (Id. at p. 22.) According to Lt. Harrison, Plaintiff and Yandrich generally
In his deposition, Plaintiff recalled Lt. Harrison approaching him on numerous occasions in 2007 and 2008 concerning his frequent and lengthy conversations with Yandrich.
During another conversation pertaining to Plaintiff's interactions with Yandrich, Lt. Harrison, who is also an African-American male, stated, "any time a black man talks to a white woman, there's an issue." (Burton Dep. at p. 29; Doc. 44-15, p. 23.) Plaintiff noted in his deposition that Lt. Harrison was PSP's Equal Employment Opportunity ("EEO") liaison for the Bureau (Burton Dep. at p. 29); however, he was unsure of the context of Lt. Harrison's comment, explaining, "I don't know if [Lt. Harrison]'s saying it's an issue [to him], but I don't know if it's just a society thing or he's saying that's a problem here [at PSP]. I don't know." (Doc. 44-15, p. 11.) In his deposition, Lt. Harrison clarified that he was giving Plaintiff advice on a personal level.
Shortly after the conversation between Lt. Harrison and Plaintiff, Major Stein acknowledged Lt. Harrison's remark, but told Plaintiff, "That's not who I am, and that's not how I operate.... [W]e're here to put out a good product and do a good job and that's it."
In fact, at the time the conversation occurred, Plaintiff was in the process of testing for the rank of Sergeant, a promotion which requires a candidate to achieve a certain score and rank on a
Plaintiff's results were less than impressive. He received scores ranging between 3.86134 and 4.79720 out of nine possible points for his performance between both panels of the Oral Board. (Burton Dep. at Ex. 5, pp. 2-3.) After standardizing the scores and re-scaling, the highest overall test score out of all the candidates was a 67 and the lowest was a 33.11615. (Burton Dep. at Ex. 5, p. 4.) Plaintiff received an overall score 44.15257 and was ranked 244 out of 476 (Burton Dep. at pp. 75-76, Ex. 5, p. 4.); consequently, Plaintiff did not receive the promotion.
Plaintiff remained in his position as Corporal Supervisor in the Programming Division and continued to engage in lengthy conversations, albeit mostly work related, with Yandrich. In response to the conversations, Lt. Harrison issued Plaintiff and Yandrich written reprimands after his multiple informal censures went unheeded. The Supervisor's Notation
(Burton Dep. at Ex. 1.) While Lt. Harrison insisted that he issued the Supervisor's Notation on his own accord, he acknowledged that Major Stein had some influence in the matter. (Harrison Dep. at p. 12.)
In his deposition, Major Stein could not recall if he specifically approved the Supervisor's Notation, but testified that he "certainly would have approved it" given the circumstances. (Stein Dep. at p. 13.) As he explained: "What I tried to do ... as I [have] done in the past, in other circumstances involving other individuals, was to try to handle something like that informally. Not make a big deal out of it, just get conformance and we'll move on." (Id. at p. 13.) However, in this instance, he observed no change in Plaintiff and Yandrich's behavior:
(Doc. 44-15, p. 26.)
Several days after receiving the Supervisor's Notation, Plaintiff met with Lt. Harrison and again questioned why he and Yandrich were constantly being addressed for talking to one another while other people were not disciplined in any fashion. (Doc. 44-15, p. 10.) Plaintiff theorized the reason for this disparate treatment was a "race issue," and stated that he believed Major Stein was "using [Lt. Harrison] to wash his hands of that." (Id.) Plaintiff said it was clear he was being targeted since the white members were not being reprimanded for excessive socialization. (Id.) He also added that Major Stein was "walking around making" inappropriate sexual comments yet no one was disciplining him (Burton Dep. at p. 35), explaining that, on one occasion, Major Stein said, "I'm offended when a woman doesn't swallow" and made another comment about his "girl thinking he had a big penis." (Doc. 44-15, p. 13.) Lt. Harrison denied that Plaintiff reported Major Stein's comments to him. (Doc. 44-15, pp. 21-22.)
A few weeks later, Major Stein approached Corporal Jack Reese ("Cpl. Reese") at the Bureau's 2008 holiday party and asked if he would be interested in
In late December 2008, Lt. Harrison asked Plaintiff to participate in the January 2009 Cadet Oral Boards in Philadelphia. (Burton Dep. at pp. 43-44.) Plaintiff suggested that Lt. Harrison should instead send Trooper Melissa Sanzick, who had been assigned to cover the January Farm Show, to the Oral Boards since she lived near Philadelphia and to send another individual to the Farm Show. (Id.) Lt. Harrison agreed with Plaintiff's suggestion and assigned Trooper Sanzick to the Oral Boards.
On January 8, 2009, Plaintiff authored a letter to Lt. Harrison in which he raised complaints regarding his treatment at the Bureau. (Burton Dep. at p. 48; Doc. 41-3, pp. 19-20.) Plaintiff wrote, in pertinent part, as follows:
(Doc. 41-3, pp. 19-20.) The following day, Lt. Harrison responded by letter, stating:
(Burton Dep. at Ex. 2.)
On January 9, 2009 — the same day that he received Lt. Harrison's response to his letter — Plaintiff reported Major Stein's in-appropriate sexual comments and his recent treatment at the Bureau, including the issuance of the Supervisor's Notation, the ceaseless comments regarding his interactions with Yandrich, and his detail assignments to Captain Martin L. Henry III ("Captain Henry"), the Equal Employment Opportunity ("EEO") Director for PSP.
Lt. Winterbottom testified during her deposition that she interviewed Plaintiff concerning his allegations on March 12, 2009. (Winterbottom Dep. at p. 37.) During the interview, Plaintiff reported Major Stein's inappropriate sexual comments. (Doc. 44-15, p. 12.) In discussing Plaintiff's reaction to Major Stein's comments, Plaintiff stated that he was offended, but attributed the comments to Major Stein believing he was comfortable with Plaintiff and Yandrich. (Id.) Plaintiff also explained that he felt he was being treated differently than the white members within the Bureau, particularly with regard to Lt. Harrison's frequent remarks about the amount of time he spoke to Yandrich and the Supervisor's Notation he received for the same. (Id. at p. 10.) Plaintiff acknowledged that the amount of time he spoke to Yandrich had been brought to his attention more than once. (Id.) Plaintiff described his relationship with Yandrich as coworkers and friends and said they did not communicate outside of work. (Id.)
Yandrich corroborated Plaintiff's allegations against Major Stein during an interview with Lt. Winterbottom on March 13, 2009. (See id. at p. 21.) Yandrich added that she had heard Major Stein make sexual comments and jokes in front of other members, but she could not provide any specific details. (Id. at p. 22.)
On March 17, 2009, Lt. Winterbottom interviewed Major Stein with regard to Plaintiff and Yandrich's allegations and Major Stein adamantly denied making any inappropriate comments regarding his views on sexual decorum or his anatomical features. (Id. at pp. 23-28.) Instead, Major Stein alleged that it was actually Plaintiff who made inappropriate comments at work. (Id. at p. 29.) Major Stein believed the allegations against him were fabricated by Plaintiff and Yandrich in retaliation for his addressing their conduct within the workplace. (Id.) He indicated that it was readily apparent that Plaintiff and Yandrich were engaged in a sexual relationship, that the relationship was impacting their work with regard to the amount of time they were spending together in the office, and they both became incensed when he addressed their work-related issues. (Id.) He recounted a meeting that Yandrich requested with him following the issuance of the written reprimands wherein Yandrich was "livid" and told him "there will be hell to pay." (Id. at p. 26.) Yandrich denied making the comment. (Id. at 22.)
During the course of her investigation, Lt. Winterbottom interviewed all personnel assigned to the Bureau of Research and Development to ascertain if any of them had heard Major Stein make inappropriate sexual comments (Doc. 41-6, p. 3, 20), and each member reported that he or she had never heard Major Stein make any such comments (see Doc. 44-15, pp. 24, 94-95, 100; Doc. 41-6, p. 11). However, several members corroborated Major Stein's allegation that Plaintiff made inappropriate comments of a sexual nature in the workplace, but explained that Plaintiff did so while they were joking around in the lunchroom. (See Doc. 44-15, pp. 94-99.)
During a followup interview, Plaintiff denied that he ever made comments of a sexual nature while at work, but was aware that some members alleged that he had. (Id. at 19.) In responding to the allegations, Plaintiff initially explained that the other members may have inferred something inappropriate from a benign remark, but later admitted that he did, in fact, make inappropriate sexual comments in the lunchroom in response to similar comments made by other members. (Id.) On April 22, 2009, Lt. Winterbottom submitted her general investigative report to Lt. Col. Kurtz for review. (Winterbottom Dep. at pp. 79-80.) Lt. Col. Kurtz determined that Plaintiff's allegations against Major Stein were "unfounded" as to the disparate treatment claim and "sustained"
Major John Laufer reviewed Lt. Winterbottom's report and concluded that Plaintiff and Yandrich were less than truthful about their relationship.
Upon reviewing the report, Lt. Col. Kurtz noted several potential infractions of PSP protocol by Plaintiff and consequently initiated an additional investigation into those infractions.
In addition to IAD 2009-0339, Lt. Col. Kurtz also initiated a full investigation into whether Plaintiff and Yandrich lied about their relationship during Lt. Winterbottom's investigation of Major Stein. (Doc. 44-18, p. 2.) The investigator, Corporal Steven Wise ("Cpl. Wise"), reviewed Lt. Winterbottom's investigative report from IAD 2009-0190 in its entirety and noted that Plaintiff and Yandrich had both denied speaking on the phone until Lt. Winterbottom presented them with phone records showing otherwise, at which time they both changed their answers and said they misunderstood the question. (Id. at pp. 2-3.) Cpl. Wise also reviewed Plaintiff and Yandrich's leave records and found that they took coinciding leave sixty times between October 2007 and December 2010. (Id.) Using Internet usage reports, Cpl. Wise discovered that Plaintiff frequented a website for the Red Roof Inn and subsequently learned, by visiting a Red Roof Inn near PSP headquarters, that Plaintiff checked in to the hotel 84 times. (Id.) Although two employees of the hotel gave descriptions of Plaintiff's hotel guest that did not match Yandrich, Cpl. Wise compared the dates of Plaintiff's hotel checkins with Plaintiff and Yandrich's leave usage. (Id.) Of the 84 check-ins, twenty occurred on weekends when they were off duty and 46 occurred on dates that both Plaintiff and Yandrich utilized leave. While the evidence from the investigation tended to show that Plaintiff and Yandrich had been less than truthful about their relationship, neither was adjudicated pursuant to the investigation. (See Doc. 44-8.)
Major Stein and Lt. Harrison left the Bureau in 2009 and 2010, respectively. (Stein Dep. at pp. 9, 56; Harrison Dep. at p. 6.) Plaintiff remained in his position as supervisor and continued to receive positive performance evaluations. (See Burton Dep. at p. 103, Ex. 10.) He retired on July 8, 2011, five years short of full retirement.
(Burton Dep. at pp. 104-105.)
On March 17, 2009, Plaintiff dual filed claims of discrimination and retaliation with the Pennsylvania Human Relations Commission ("PHRC") and the Equal Employment Opportunity Office ("EEOC") alleging that he was discriminated against on the basis of his race in the Sergeant promotion process and in the decision to issue him the Supervisor's Notation, and that he was retaliated against for complaining to Lt. Harrison about Major Stein's sexual comments in the form of his assignment to the Farm Show detail. (Doc. 41-9, pp. 5-14 of 31.) On November 5, 2009, Plaintiff filed another charge of discrimination with the EEOC and PHRC alleging retaliation for filing his first EEOC and PHRC complaint in the form of a disciplinary investigation. (Doc. 41-9, pp. 16-18 of 31.) Plaintiff received a Notice of Right to Sue from the United States Department of Justice Civil Rights Division with regard to his first charge on July 23, 2011, and a Notice of Right to Sue on his second charge on July 27, 2011. (Doc. 44-14.)
After receiving the notices of his right to sue, Plaintiff filed a complaint in the instant matter on October 21, 2011 (Doc. 1), and an amended complaint on July 18, 2012 (Doc. 18).
Summary judgment is appropriate when the moving party demonstrates that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original).
A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Id., 477 U.S. at 248, 106 S.Ct. 2505; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir.1992). An issue as to a material fact is "genuine" if there is a sufficient evidentiary basis on which a reasonable jury could find for the nonmoving party. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.2006) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). In determining whether there is a genuine issue of material fact, the court must view the facts and draw all reasonable inferences in favor of the nonmoving party. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir.2004) (citation omitted). In addition, the "court may not make credibility determinations or engage in any weighing of the evidence." Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
The initial burden is on the moving party to show an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citations omitted). The moving party may meet this burden by "pointing out to the district court [] that there is an absence of evidence to support the nonmoving party's case when the nonmoving party bears the ultimate burden of proof." Id. at 325, 106 S.Ct. 2548. In order to avoid summary judgment, the nonmoving party may not rest on the unsubstantiated allegations contained in his or her pleadings, but is required by Rule 56 to go beyond the pleadings by way of affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Id. at 324, 106 S.Ct. 2548. Summary judgment should be granted where the party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden at trial." Celotex, 477 U.S. at 323, 106 S.Ct. 2548; see Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir.1992).
With respect to the sufficiency of the evidence provided by the nonmoving party, the court should grant summary judgment where the party's evidence is merely colorable, conclusory or speculative. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. That is, there must be more than a scintilla of evidence supporting the nonmoving party's claims and more than some metaphysical doubt as to the material facts. Id. at 252, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Plaintiff alleges that he suffered adverse employment actions for unlawful discriminatory
At the outset, PSP and Lt. Winterbottom argue that they are entitled to summary judgment on the Title VII claims asserted in Counts I through VI because Plaintiff failed to exhaust his administrative remedies. Plaintiff responds that his claims are properly within the scope of his EEOC charges and he has therefore exhausted his administrative remedies.
Prior to filing a Title VII suit in federal court, a plaintiff must first exhaust his administrative remedies by filing a discrimination charge with the EEOC. Williams v. Runyon, 130 F.3d 568, 573 (3d Cir.1997); Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir.1984). Once a plaintiff has done so, he may file suit for discrimination pursuant to Title VII, but may only properly raise those claims that are within the scope of the EEOC charge.
In the instant matter, Plaintiff filed his first EEOC charge on March 17, 2009, for discrimination and retaliation in which he complained, inter alia, that he and Yandrich were continually being warned about spending time together in conversation; that Lt. Harrison stated, "whenever a black man talks to a white woman, it's an issue"; that he was denied a promotion to Sergeant after being assigned a panel of assessors that included Lt. Margeson; and that he was issued a Supervisor's Notation for talking to Yandrich for extended periods of time while white employees were not reprimanded for talking to each other at length. (Doc. 41-9, pp. 6-7.) At Count I of his EEOC charge, Plaintiff alleged race discrimination, claiming that Major Stein and Lt. Harrison had a problem with a black man and white woman engaging in conversation. (Id. at p. 7.) At Count II, he alleged retaliation for reporting that Major Stein had made inappropriate sexual comments in the form of being assigned to an outside detail despite his rank of Corporal Supervisor. (Id. at p. 8.) In his second EEOC charge, filed on November 5, 2009,
Given that Plaintiff's Title VII claims for discrimination include his suspension without pay, which was not issued until December of 2010, and constructive discharge in the form of his retirement on July 8, 2011 (Doc. 40, p. 4), Defendants contend that Plaintiff has not exhausted his administrative remedies insofar as these additional claims are not subsumed within his EEOC charges. Specifically, Defendants assert that the suspension and retirement are not closely related to the events of alleged discrimination in 2008, i.e., the discipline and failure to promote, and that the EEOC did not have time to adequately investigate Plaintiff's constructive discharge as the right to sue letter was issued just fifteen days after his retirement. (Id.) Plaintiff argues that the suspension and events leading to the constructive discharge arose during the pendency of the EEOC investigation and were closely related to the original charges. (Doc. 44, pp. 7-8.)
Generally, a complainant need not file an EEOC charge as to "new acts that occur during the pendency of the case which are fairly within the scope of an [existing charge] or the investigation growing out of that [charge]." Waiters, 729 F.2d at 237. In Waiters, the plaintiff's EEOC charge included a retaliation claim relating to the filing of an informal complaint, but the plaintiff's Title VII action centered on other alleged retaliatory conduct that took place after the filing of the EEOC charge. Id. at 236. While the Third Circuit recognized that "the allegedly discriminatory officials and acts [were] different," the court found that the retaliation claims raised in the Title VII action were within the scope of the EEOC charge because "the core grievance — retaliation — [was] the same." Id. at 238. Likewise, in Albright v. City of Philadelphia, 399 F.Supp.2d 575, 584-85 (E.D.Pa.2005), the district court held that, "continued acts of retaliation following the filing of [the plaintiff's] second EEOC charge [were] within the scope of the first charge" because retaliation was "at the core" of the allegations contained in the charge. See also Harman v. York City Sch., No. 12-cv-2033, 2013 WL 3242407, *4 (M.D.Pa. June 25, 2013) (finding that an additional claim raised in the plaintiff's complaint, although not included in the EEOC charge, fell within the scope of the "core grievance" of the charge). Courts are typically less
In this case, Plaintiff's Title VII suit unquestionably includes claims not specifically raised in his EEOC charges. However, the core grievances of the charges include discrimination and retaliation and therefore could encompass related forms of discrimination and retaliation not specifically identified within them. Significantly, the essential facts alleged in each charge are the same as those presented in his federal claims. While the suspension and constructive discharge had yet to occur at the time of the second filing, both acts grew out of the same core and were simply additional forms of related retaliation, i.e., another form of discipline and constructive discharge resulting from mounting forms of discrimination and retaliation. Moreover, the suspension and constructive discharge both occurred during the pendency of the EEOC actions as Plaintiff filed the charges in March and November of 2009 and the EEOC issued his right to sue letters on July 23, 2011, and July 27, 2011. See Harman, 2013 WL 3242407 at *4 (finding that the plaintiff's claims concerning discrimination that allegedly occurred after he filed his EEOC charge were properly exhausted because the conduct occurred before the EEOC issued its right to sue letter). Accordingly, the court concludes that the additional claims are within the scope of Plaintiff's EEOC charges and therefore Plaintiff has exhausted his administrative remedies with respect to his Title VII claims.
Both Plaintiff's amended complaint and brief in opposition to Defendants' motion for summary judgment suffer from vagueness and inconsistency and are laden with generalities heaped upon conclusory statements, which Plaintiff predicates on nothing more than his own beliefs. In fact, a careful analysis of the record demonstrates that Plaintiff's allegations simply are not supported. These defects are fatal to Plaintiff's case on all counts, and for the reasons that follow, the court will grant Defendants' motion for summary judgment in its entirety.
In Counts I and II of the amended complaint, Plaintiff asserts racial discrimination by PSP in violation of Title VII and the PHRA. Under Title VII, it is unlawful for an employer:
42 U.S.C. § 2000e-2(a)(1) (emphasis added). The PHRA likewise prohibits discrimination by an employer on the basis of race.
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761-62, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); see also Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 764 (3d Cir.2004) (defining an adverse employment action as "an action by an employer that is serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment"). As to the final prong, a plaintiff can establish an inference of discrimination by showing that he or she was treated differently than similarly situated employees outside of the protected class. Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 318-19 (3d Cir.2000).
If the plaintiff succeeds in presenting a prima facie case, the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason" for the adverse employment action. Id.; Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d Cir.2000). In this regard, the employer's burden is "relatively light." Johnson v. Keebler-Sunshine Biscuits, Inc., 214 Fed.Appx. 239, 240 (3d Cir.2007). Indeed, the employer is only required to show that its actions could have been motivated by the proffered legitimate nondiscriminatory reason; proof of actual causation is not required. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Iadimarco v. Runyon, 190 F.3d 151, 157 (3d Cir.1999).
Finally, if the employer articulates a legitimate nondiscriminatory reason for its employment action, the burden shifts back to the plaintiff to establish by
Plaintiff alleges that PSP unlawfully discriminated against him on the basis of his race by issuing him a written reprimand in the form of a Supervisor's Notation (Doc. 19, ¶ 59), suspending him without pay (Id. at ¶ 72), and failing to promote him to Sergeant (Doc. 44, p. 6 of 25). PSP does not dispute that Plaintiff is a member of a protected class; rather, it argues that Plaintiff cannot prove he suffered from an adverse employment action and/or that similarly situated non-protected class employees were treated more favorably. (Doc. 48, p. 3 of 16.) Moreover, even if Plaintiff is able to present a prima facie case, PSP asserts it had a legitimate nondiscriminatory reason for taking each of the challenged employment actions. (Id.) The court will address each argument in turn.
Plaintiff argues that the Supervisor's Notation he received for excessively socializing with Yandrich was an adverse employment action. In order for a reprimand to amount to an adverse employment action, it must effect a material change in the terms or conditions of the plaintiff's employment. Harris v. Harley-Davidson Motor Co. Operations, Inc., 09-cv-1449, 2011 WL 6003191, *5 (M.D.Pa. Sept. 28, 2011). In Weston v. Pennsylvania, 251 F.3d 420, 430-31 (3d Cir.2001), the Third Circuit concluded that written reprimands not permanently affixed to an employment record do not constitute an adverse employment action under Title VII. In finding that the reprimands did not alter the terms or conditions of the plaintiff's employment in any way, the Third Circuit noted that the plaintiff was "not demoted in title, did not have his work schedule changed, was not reassigned to a different position or location..., did not have his hours or work changed or altered ... and ... was not denied any pay raise or promotion as a result of these reprimands." Id. at 431. Applying this reasoning to the matter sub judice, the Supervisor's Notation does not constitute an adverse employment action because it did not alter Plaintiff's employment status. See Santiago v. York City, No. Civ. A.1:CV02-1217, 2005 WL 2347236, *7 (M.D.Pa. Sept. 26, 2005) (finding that a written reprimand to be removed from an employment file after two years did not constitute an adverse employment action as it did not alter the plaintiff's employment status). Thus, Plaintiff has failed to establish the second element of his prima facie case as to the Supervisor's Notation.
Moreover, Plaintiff fails to establish similarly situated persons were treated differently. As to the unidentified white members who purportedly engaged in lengthy conversations without being reprimanded, they were not employed within Plaintiff's Division and therefore were not under Lt. Harrison's supervision. (See Burton Dep. at pp. 29-30; Doc. 44-15, p. 23.) Similarly situated employees are those who have "dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them." Opsatnik v. Norfolk S. Corp., 335 Fed.Appx. 220, 223 (3d Cir.2009). Consequently, these other white members were not "similarly situated" for purposes of establishing an inference of discrimination. As for the similarly situated members within Plaintiff's Division, Lt. Harrison testified that he did, in fact, give other members Supervisor's Notations for "not taking care of business" (Harrison Dep. at pp. 18-19), and Plaintiff has failed to put forth any evidence to rebut Lt. Harrison's testimony. Moreover, Lt. Harrison issued Yandrich — a white female — a written reprimand contemporaneously with the supervisor's notation issued to Plaintiff.
Finally, insofar as an argument could be made that all of the members within the Bureau of Research and Development were under the control of Major Stein and therefore could be considered "similarly situated," Plaintiff has failed to put forth any evidence to support his claims that the other members excessively socialized. Instead, Plaintiff relies almost exclusively on his testimony and affidavit without citing or producing any affirmative evidence outside of his own allegations. (See Doc. 19, ¶ 61; Doc. 44., pp. 8-10; Doc. 45, ¶ 3.) Federal Rule of Civil Procedure 56(c)(1) states that the nonmovant must establish a genuine dispute of material fact by either "citing to particular parts of materials in the record" or "showing that the materials cited [by the movant] do not establish the
Finally, even assuming, arguendo, that Plaintiff had presented a prima facie case of race discrimination as to the Supervisor's Notation, PSP has articulated a legitimate nondiscriminatory reason for the employment action, i.e., the excessive socialization and failure to comply with numerous verbal requests to reduce the length of the conversations (see Harrison Dep. at pp. 22-23; Doc. 41-7 at p. 17 of 33; See Stein Dep. at pp. 12-13), and thus the burden shifts back to Plaintiff to show that PSP's proffered reasons for the Supervisor's Notation are pretextual. In attempting to sustain this burden and rebut Defendant's legitimate reason, Plaintiff asserts that "[t]he purpose of the [S]upervisor's [N]otation was to deter and punish [Plaintiff] for associating with a white female co-worker" and that "[i]t was an unambiguous statement that a black socializing with a white woman is not acceptable behavior" (Doc. 44, pp. 8-9); however, Plaintiff again failed to allege facts sufficient to support his claims and instead relies on his own bold, conclusory statements. It is basic civil procedure that on a motion for summary judgment, the nonmoving party is entitled to all reasonable inferences to be drawn in his favor. The key word, however, is reasonable. The fact that Plaintiff, a black male, was reprimanded for excessively speaking with a coworker, who happened to be a white female, does not, in and of itself, warrant an inference that the reprimand was issued because of his race. As Lt. Harrison explained in his interview with Lt. Winterbottom, he was compelled to issue the Supervisor's Notation after he observed Plaintiff and Yandrich in conversation for nearly eight hours over the course of two work days. (Doc. 44-15, p. 22-24 of 101; 44-1, ¶ 47.) It speaks for itself that an employer has a strong interest in ensuring a certain level of conduct and productivity within the office; an employee cannot spend an excessive amount of time socializing in the workplace and then legitimately claim its discriminatory when he is challenged for doing so.
Plaintiff rather inarticulately argues that his two day suspension without pay was a result of a racially motivated investigation wherein Plaintiff, as the only African-American among a group of employees who engaged in some inappropriate lunchroom banter, was singled out due to his race and subjected to an intrusive investigation, which ultimately uncovered the information giving rise to his suspension. (Doc. 44, pp. 10-11.) He reasons that, had other employees who participated in the same lunchroom behavior been subjected to similar investigations, information may have been discovered about them leading to additional suspensions. (Id.) Consequently, he asserts that the discriminatory action was not the suspension itself but rather the failure to investigate or suspend anyone else. (Id.) PSP argues that an investigation, in and of itself, is not an adverse employment action as it does not cause any significant change in job status, responsibilities, or benefits. In addition, PSP calls attention to the fact that Plaintiff failed to present any evidence of similarly situated employees who were treated more favorably in the disciplinary process. (Doc. 48, p. 6 of 16.) Recognizing the Plaintiff indeed failed to proffer any comparator evidence with regard to
The Third Circuit has counseled that the prima facie discrimination case is intended to be a flexible standard. Sarullo, 352 F.3d at 797-98 ("[T]he prima facie test remains flexible and must be tailored to fit the specific context in which it is applied."). To establish an inference of discrimination, a plaintiff need not explicitly show that similarly situated coworkers were treated more favorably with regard to the adverse employment action. See Burlington, 759 F.Supp.2d at 592. It is sufficient for a plaintiff to present evidence that "establishes a causal nexus between the harm suffered and the plaintiff's membership in a protected class, from which a [reasonable] juror could infer, in light of common experience, that the defendant acted with discriminatory intent." Id. (quoting Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 275 (3d Cir.2010) (discussing prima facie case in a Section 1981 context)); Sarullo, 352 F.3d at 798 (stating that the plaintiff "must establish some causal nexus between his membership in a protected class" and the adverse employment action to establish a prima facie case of discrimination in a Title VII case). Ultimately, the focus remains on whether the plaintiff is able to establish — through evidence of similarly situated employees being treated more favorably or otherwise — that his protected trait "played a role in the employer's decision-making process and had a determinative influence on the outcome of that process." Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 300 (3d Cir.2004).
In the matter sub judice, Plaintiff's efforts to create an inference of discrimination by showing that his race played a role in PSP's decision to investigate him fails for several reasons. First, Plaintiff's argument is premised entirely upon the fact that PSP did not investigate the other nonprotected employees who engaged in the same lunchroom banter. Specifically, he argues that this selective investigation necessarily leads to an inference that the investigation into Plaintiff was racially motivated. While it is undisputed that the other nonprotected members from the lunch table were not investigated (see, e.g., Winterbottom Dep. p. 92-95), this fact alone is insufficient to raise an inference that the investigation was discriminatory. Rather, Plaintiff must present evidence showing that IAD 2009-0339 was initiated solely — or, at the very least, primarily — because the investigators and/or disciplinary officers learned that Plaintiff made an inappropriate sexual comment in the lunchroom. Without such evidence, Plaintiff cannot show that he was singled out from the group — a fact upon which his entire argument rests.
The record clearly demonstrates, however, that IAD 2009-0339 was not initiated primarily because of Plaintiff's comments in the lunchroom. Rather, the investigation was initiated due to several pieces of information that were discovered in the course of the investigation into Plaintiff's allegations against Major Stein, including Plaintiff repeating inappropriate sexual comments he attributed to Major Stein to his subordinates, opening a confidential correspondence addressed to another member, being less than truthful in answering questions related to the confidential correspondence, and admittedly making inappropriate sexual comments in the lunchroom. (Doc. 41-6, p. 2 of 40.) Each of these infractions violated clearly established
In addition, Plaintiff argues that, had it not been for the discriminatory investigation, he would not have been suspended since the primary basis for the suspension was Plaintiff's purported untruthfulness in answering questions related to the confidential correspondence he inadvertently read. Plaintiff argues:
(Doc. 44, p. 11 of 26.) However, Plaintiff's but-for argument is misguided. Lt. Winterbottom did not uncover the possibility that Plaintiff made inappropriate lunchroom comments during her subsequent investigation into Plaintiff's infractions. Rather, Lt. Winterbottom first learned of the alleged comments when Major Stein made the accusation against Plaintiff while being questioned regarding Plaintiff's accusations against him. Thus, at that point, the investigation into Major Stein turned into the classic, "he said, she said" situation, whereby Lt. Winterbottom was compelled to look into the credibility of each accuser. In doing so, she found that Major Stein's allegation against Plaintiff was corroborated by at least six other people in the Bureau (see, e.g., Doc. 44-15, pp. 1, 94-100), whereas no one within the Bureau, aside from Yandrich, corroborated Plaintiff's accusations against Major Stein (see, e.g., id. at pp. 24, 94-100; Doc. 41-6, p. 11). The letter which Plaintiff inadvertently read was in regard to one of these interviews (Doc. 44-15, p. 19 of 101), and thus it existed because of the investigation of Major Stein.
In addition, with regard to whether the adverse action itself, i.e., the suspension, was discriminatory, Plaintiff has similarly failed to put forth any evidence leading to an inference of discrimination. (See Doc. 44, p. 12 of 26.) Plaintiff was suspended for his violations of three PSP field regulations amounting to his unbecoming conduct, his failure to truthfully answer questions in an investigation, and his engaging in harassment. (Burton Dep., Exhibit 8 at p. 1, 12, 15.) Plaintiff did not — indeed he could not — present any evidence showing a nonprotected employee in violation of three field regulations who received discipline less severe than that of Plaintiff's. In fact, the evidence of record reveals that other nonprotected employees within the Bureau were disciplined much more severely for violations of a similar nature, receiving 25 to thirty day suspensions for unbecoming conduct and untruthfulness in an investigation. (See e.g., Sanzick Dep. at p. 11; Bendl Dep. at pp. 14-15; Beard Dep. at pp. 17-18; Hinkle Dep. at p. 9; Getz Dep. at pp. 13-14.) For all these reasons, Plaintiff has failed to raise an inference of discrimination as to the investigation or the suspension, and his prima facie case fails as a result.
Plaintiff also alleges that he was discriminated against on the basis of his race in the Sergeant promotion process due to Lt. Margeson's presence on one of the Oral Board panels as well as PSP's failure to accommodate his request for an alternate panel.
The undisputed evidence of record likewise fails to support Plaintiff's claim that PSP's refusal to appoint a new panel was due to a discriminatory motive. Upon learning that Lt. Margeson was assigned to one of his panels, Plaintiff immediately objected to the assignment and requested
Several times throughout his amended complaint and brief in opposition, Plaintiff mentions Lt. Harrison's remark in an attempt to bolster his argument of intentional discrimination with regard to the employment action at issue. While the remark, at best, reflects an arguably racially-charged point of view, Lt. Harrison explained that he made the comment within the context of his own experiences as an African-American in an interracial relationship. (Doc. 44-15, p. 23; Harrison Dep. at p. 26.) Although Plaintiff testified in his deposition that he interpreted Lt. Harrison's comment as a reflection of what Lt. Harrison had witnessed within the Bureau as the EEO liaison (Burton Dep. at p. 29), Plaintiff told Lt. Winterbottom that he was uncertain if Lt. Harrison was speaking in general terms about society or more specifically about PSP. (Doc. 44-15, p. 11.) Regardless, one individual's general feeling of unease about the treatment of interracial friends or couples — whether inside or outside of PSP — does not, by itself, establish a prima facie case of racial discrimination. Moreover, while Plaintiff avers in his amended complaint that Major Stein's purpose in acknowledging Lt. Harrison's comment "was to endorse Lt. Harrison's comment[] and to threaten [Plaintiff] into not having any further conversations with Ms. Yandrich" (Doc. 19, ¶ 33), Plaintiff nevertheless testified that Major Stein told Plaintiff he did not agree with Lt. Harrison's comment. (Burton Dep. at. pp. 31-32.)
Accordingly, based upon the record before the court viewed in the light most favorable to Plaintiff, Plaintiff has failed to establish a prima facie case of racial discrimination with regard to any of the challenged employment actions. Even upon examining the employment actions collectively, both adverse and non-adverse, the court finds no indication that nonprotected members of PSP were held to less strict standards vis-a-vis the rules of conduct, received less warnings or discipline, or were treated more favorably in the promotion process. Plaintiff's mere disagreement with his supervisors' decisions and his unsupported opinion that the decisions were racially motivated are insufficient, as a matter of law, to establish a prima facie case of discrimination. Accordingly, PSP's motion for summary judgment as to Plaintiff's claims in Counts I and II of the amended complaint will be granted.
In Counts III through VI of the amended complaint, Plaintiff asserts claims against both PSP and Lt. Winterbottom for unlawful retaliation in violation of Title VII and the PHRA. To establish a prima facie case of retaliation, a plaintiff must demonstrate that (1) he engaged in
In the instant case, Plaintiff's claims fail insofar as Plaintiff is alleging violations of Title VII and the PHRA by Lt. Winterbottom as an individual defendant. Indeed, the Third Circuit's disposition on individual liability under Title VII is clear — Congress did not intend to hold individual employees liable under this statute.
With regard to his claims against PSP, Plaintiff appears to predicate his retaliation claims on three protected activities: making informal complaints of discriminatory treatment to Lt. Harrison; reporting to Lt. Harrison and PSP's EEO office that Major Stein was making inappropriate sexual comments (Doc. 19 ¶¶ 84, 101); and
In addition to asserting that the Supervisor's Notation was issued as a form of discrimination, Plaintiff argues that it was issued as an act of retaliation. While the basis for his retaliation claim is difficult to ascertain from Plaintiff's brief, it appears he is attempting to insert his belief that the reprimands he received for speaking to Yandrich for hours on end were a result of his supervisors' retaliation rather than his underperformance; however, his arguments are difficult — if not impossible — to follow. (See Doc. 44, pp. 14-15.) Inasmuch as Plaintiff is attempting to argue that he was retaliated against in the form of a Supervisor's Notation for complaining to Lt. Harrison and Major Stein that he was being treated less favorably than his white colleagues, his argument fails for the same reasons that the court articulated above in regard to his discrimination claim. Thus, the court will not belabor the issue here. Moreover, the mere fact that Plaintiff is asserting both discrimination and retaliation claims as to the Supervisor's Notation is fatal to his retaliation claim as the prima facie case of retaliation requires the plaintiff to show that the desire to retaliate was the sole basis, or the but-for
Further, Plaintiff has not addressed the reasonable employee aspect of this claimed adverse action in the context of a retaliation claim — a showing that is his burden. See Moore, 461 F.3d at 341. Even assuming, arguendo, that Plaintiff had attempted to make such a showing, the court finds that a reasonable employee would not have found the Supervisor's Notation materially adverse, since it is removed from the employee's record after six months. Such a temporary employment action would not dissuade a reasonable employee from making or supporting a charge of discrimination. See Weston, 251 F.3d at 430-31. In fact, Plaintiff himself lodged both informal and formal complaints of discrimination because he received the Supervisor's Notation and therefore was not dissuaded from doing so.
After complaining to Lt. Harrison about the treatment he received compared to white members, Major Stein called Plaintiff into his office to discuss the matter and stated, "you're a good worker and I would hate to lose you." (See Doc. 44, p. 14; Doc. 19, ¶¶ 31-33.) Plaintiff classifies this comment as "a clear threat" and claims that Major Stein followed through on the threat when he offered Plaintiff's position to Cpl. Reese at the December 2008 holiday party. (Doc. 44, p. 15.) Plaintiff alleges that Major Stein's offer was made in retaliation for Plaintiff's complaints of discrimination, i.e., complaining to Lt. Harrison that he was getting reprimanded for excessive socialization while no one was saying anything to white members who were doing the same thing. (See id. at pp. 15-16.)
First, the court finds that an attempt to replace an employee — by an informal offer at a holiday party no less — hardly qualifies as an adverse employment action in that it would dissuade a reasonable employee from making or supporting a charge of discrimination. Indeed, as with the Supervisor's Notation, Plaintiff himself was not dissuaded from complaining of discrimination as he continued to make both informal and formal complaints after this incident. Second, Plaintiff has presented no evidence that suggests any causal connection between his allegations of discrimination and the job offer to Cpl. Reese, let alone evidence to suggest that the activity was the but-for cause of Major Stein's decision to offer Plaintiff's job to Cpl. Reese. Instead, the evidence of record shows that Major Stein and Lt. Harrison contemplated moving Plaintiff to a new assignment within the Bureau in an attempt to address the excessive socialization since repeated requests for Plaintiff and Yandrich to reduce their amount of socialization went unheeded. (Doc. 48, p. 12 of 16.) It is true, as Plaintiff argues, that Lt. Harrison and Major Stein disagree as to who originally had the idea to transfer Plaintiff as part of a reorganization plan; however, they both agree that the motive behind doing so was the excessive socialization. Thus, while there may be a genuine issue of fact as to who suggested Plaintiff's transfer, such question is not material to the motivation behind the decision. Indeed, the motivation — excessive socialization — is undisputed by the evidence of record. Finally, Plaintiff does not dispute that he engaged in excessive socialization nor does he dispute that, on at least ten occasions, Lt. Harrison asked Plaintiff to reduce the amount of time that he spent socializing with Yandrich during
Plaintiff alleges that, in retaliation for complaining about Major Stein's inappropriate comments, Lt. Harrison assigned Plaintiff to the Farm Show detail, "an assignment that was beneath his position" as a supervisor. (Doc. 19 ¶¶ 40-41.) In support of his allegation, Plaintiff argues that supervisors typically were not selected for details as they were needed in their supervisory capacity and that Lt. Harrison acknowledged Major Stein may have been giving Plaintiff a "shot." (See Doc. 44, pp. 16-17.)
The court finds that the four day assignment to the Farm Show detail does not amount to an adverse employment action insofar as a Title VII claim for retaliation is concerned.
Plaintiff also alleges that, rather than fully investigating his claims regarding disparate treatment and inappropriate comments by Major Stein, PSP retaliated against him for filing his charge with the EEOC
As an initial matter, the court notes that PSP did, indeed, fully investigate Plaintiff's claims, notwithstanding Plaintiff's election not to file a complaint with the Department. Based on Plaintiff's letter to Lt. Harrison and his meeting with Captain Henry of the Internal Affairs Division office, PSP chose to move forward with an investigation on its own accord due to the seriousness of his allegations. (See Doc. 44-15, Attachment 1, pp. 1-3.) Pursuant to that investigation, Lt. Winterbottom conducted approximately thirty interviews to ascertain whether Plaintiff's claims had merit (see Doc. 41-6, pp. 19-20) and compiled a 101-page investigative report on the matter (see Doc. 44-15). The court has carefully reviewed the report in its entirety and concludes that PSP conducted a comprehensive investigation into Plaintiff's complaints.
As to Plaintiff's claim of retaliation, the court cannot find, and Plaintiff has not shown, any basis to conclude that the subsequent investigations, IAD 2009-0339 and 2010-0740, were materially adverse in that they would dissuade a reasonable employee from making or supporting a claim of discrimination. They were simply investigations; they did not change or alter Plaintiff's employment. Thus, Plaintiff again has failed to show an adverse employment action.
As to the final element in the prima facie case, Plaintiff claims there is sufficient evidence for a jury to find that IAD 2009-0339 and his resultant suspension would not have occurred but-for his complaint against Major Stein. (See Doc. 44, pp. 11, 18-19.) While it is technically true that the information which provided the basis for Plaintiff's suspension came to light because of the investigation into his allegations against Major Stein and thus, had Plaintiff not reported Major Stein's comments, PSP likely would not have uncovered the information leading to IAD 2009-0339 and ultimately to Plaintiff's suspension, it appears that Plaintiff is grasping at straws. Indeed, Plaintiff's complaints formed the basis for the initial investigation that formed the basis for the subsequent investigations. But a technicality does not suffice to meet the but-for causation standard. Instead, Plaintiff must show that the "desire to retaliate was the but-for cause of the challenged employment action." Nassar, 133 S.Ct. at 2528 (emphasis added). He has not done so.
Likewise, PSP had a legitimate business reason for IAD 2010-0740. Despite Plaintiff's claims to the contrary (see Doc. 44, p. 19 of 25), there was evidence, albeit circumstantial, that Plaintiff and Yandrich had lied about their involvement during IAD 2009-0190. In their interviews with Lt. Winterbottom, Plaintiff and Yandrich claimed that they were coworkers and friends, and did not speak on the phone or meet outside of the office. However, when confronted with their phone records, both Plaintiff and Yandrich admitted to speaking on the phone. This information, coupled with the significant amount of time the two were spending together at the office, provided ample reason for PSP to look into whether Plaintiff and Yandrich had lied about their relationship during IAD 2009-0190 in violation of PSP field regulations.
For all these reasons, Plaintiff has failed to establish a prima facie case of retaliation. At this stage of the proceedings, unsupported conclusions of retaliation do not warrant either expending additional judicial resources or presenting the issue to the jury. In short, the court has little trouble concluding that Plaintiff has failed to establish his prima facie case of retaliation.
In addition to bringing Title VII discrimination and retaliation claims, Plaintiff has brought a constructive discharge claim premised upon his eventual decision to resign from his employment five years short of full retirement. (See Doc. 44, pp. 16-17.) In particular, his complaint states that his involuntary resignation was the result of the discriminatory and retaliatory treatment he experienced at PSP. (Doc. 19, ¶¶, 60, 73, 89, 106, 124, 141, 162, 175.) While the court is fatigued from addressing Plaintiff's largely baseless claims in this case, the court will persist through the home stretch and engage Plaintiff's final arguments.
To establish constructive discharge, a plaintiff must show "that the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign." Goss v. Exxon Office Sys. Co., 747 F.2d 885, 888 (3d Cir.1984); Duffy v. Paper Magic Grp., 265 F.3d 163, 167 (3d Cir.2001). In determining whether an employee was constructively discharged, the Third Circuit considers whether the employee "was threatened with discharge, encouraged to resign, demoted, subject to reduce pay or benefits, involuntarily transferred to a less desirable position, subject to altered job responsibilities, or given unsatisfactory job evaluations." Colwell v. Rite Aid Corp., 602 F.3d 495, 503 (3d Cir.2010). In addition, "[t]here must be `at least some relation between the occurrence of the discriminatory conduct and the employee's resignation.'" Syed v. YWCA of Hanover, 906 F.Supp.2d 345, 359 (M.D.Pa.2012) (quoting
In the instant case, the record is absolutely devoid of any of these factors. First, in October 2008 — nearly three years prior to his retirement — Major Stein told Plaintiff, "we would hate to see you go." (See Doc. 44, p. 21 of 26.) Crediting Plaintiff's claims, for purposes of this motion, that the statement was a threat of discharge, there is no causation between the statement and Plaintiff's resignation as three years had passed between the two events. See McWilliams, 717 F.Supp. at 355-56 (finding that the plaintiff could not show causation because the incidents complained of occurred three years prior to her resignation). Second, Plaintiff seems to suggest that the "undesirable" Farm Show detail was an alteration of his job responsibilities (see Doc. 44, p. 21 of 26); however, one temporary assignment, lasting only four days, is not an alteration in job responsibilities, especially considering his position made him eligible for the detail per the special order. As for the remaining factors, none are present here.
Moreover, Plaintiff's supervisors, i.e., the two main antagonists according to Plaintiff, left the Bureau more than a year before Plaintiff retired (Stein Dep. at pp. 9, 56; Harrison Dep. at p. 6), and Plaintiff had two new supervisors who gave him outstanding performance reviews
Lastly, Plaintiff alleges that he was retaliated against by Lt. Winterbottom for exercising his First Amendment right of freedom of association. As Plaintiff brings his claims pursuant to Section 1983, the court will briefly address the law as it pertains to that statute. Section 1983 of Title 42 of the United States Code offers private citizens a means to redress violations of federal law committed by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:
Id. "Section 1983 is not a source of substantive rights, but merely a method to vindicate violations of federal law committed by state actors." Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315 (M.D.Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002)). To establish a claim under this section, a plaintiff must demonstrate that: (1) the conduct complained of
Plaintiff claims that Lt. Winterbottom violated his First Amendment right to freedom of association insofar as she conducted lengthy and frivolous investigations in retaliation for his talking to Yandrich.
Furthermore, even if it was a protected form of association, Plaintiff could not show that his friendship with Yandrich was the impetus behind Lt. Winterbottom's alleged failure to properly investigate the inappropriate sexual comments by Major Stein or PSP's decision to conduct the subsequent investigations of Plaintiff. Rather, Plaintiff's relationship with Yandrich became a topic of interest during IAD 2009-0190 due to a question of credibility regarding their claims against Major Stein as they were the only two people — out of thirty interviewees — who reported they had heard Major Stein make such comments. Consequently, PSP suspected possible collusion and initiated the subsequent investigations into their credibility and relationship. Even Plaintiff himself conceded that the relationship of the witnesses reasonably had some bearing on the investigation. (Burton Dep. at p. 112.) For all these reasons, Plaintiff has failed to show that Lt. Winterbottom retaliated against him in violation of his First Amendment right to freedom of association and Lt. Winterbottom
Overall, the circumstances of this case which the court has described in detail
For the foregoing reasons, the court finds that there are no genuine issues of material fact as to Plaintiff's Title VII, PHRA, constructive discharge, and Section 1983 claims, and therefore will grant Defendants' motion for summary judgment it its entirety.
An appropriate order will issue.
In accordance with the accompanying memorandum of law,
The Clerk of Court is directed to enter judgment in favor of Defendants and against Plaintiff.
The Clerk of Court shall close the case.
(Doc. 44-15, p. 33.) In an interview with Lt. Winterbottom, Plaintiff denied stating that Major Stein "runs around the office" making inappropriate comments and instead reported that it happened on only one occasion. (Doc. 44-15, p. 14.) He also denied telling Captain Henry that Major Stein frequently made sexual comments in group forums. (Id.)
(Doc. 41-6, p. 2.)
(Doc. 41-9, p. 17.)
42 U.S.C. § 2000e-2(a), 2000e-3(a) (emphasis added).
Burlington N., 548 U.S. at 69, 126 S.Ct. 2405 (internal citations omitted).
