SHAVERS v. SUNFRESH FOOD SERVICE, INC, 2:09-cv-01377

Shavers, a truck driver for Sunfresh, claimed a racially hostile work environment under §1981 and assault and battery under Pennsylvania law.
Sunfresh moved for summary judgment, arguing both claims were fatally flawed.
The court denied summary judgment on the §1981 hostile environment claim, finding genuine issues of material fact exist.
The harassment center was Bonnie Ray, who allegedly used racial epithets toward Shavers on multiple occasions.
The court granted summary judgment for Sunfresh on the assault and battery claim, finding no basis for vicarious liability.
A status conference/settlement conference was set for February 29, 2012.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Shavers proved intentional race discrimination	Shavers established race-based discrimination via epithets against him.	Discrimination was not proven or not adequately linked to Shavers’ race.	Genuine issues of material fact preclude summary judgment.
Whether the harassment was severe or pervasive	Racial epithets, especially repeated use of 'nigger' and 'f'ing nigger,' were severe/pervasive.	Harassment by a coworker affecting others does not prove severity toward Shavers.	Triable issue; could be severe or pervasive for Shavers.
Whether there is a basis for employer liability (supervisor vs coworker)	Sunfresh failed to take prompt remedial action; harassment by coworker created liability.	Liability depends on supervisor vs coworker; actions not clearly remedied by employer.	Genuine issues of material fact regarding Sunfresh’s liability.
Whether Sunfresh is liable for assault and battery	An employer is vicariously liable for acts within the scope of employment, including intentional acts.	The assault by Frank Ray was personal and not within the scope of employment.	Sunfresh entitled to summary judgment on assault and battery claim.

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (U.S. 1998) (two-element defense for employer liability when supervisor harasser; not applicable if tangible action)
Faragher v. City of Boca Raton, 524 U.S. 775 (U.S. 1998) (employer liability for supervisor harassment requires reasonable care and employee failure to utilize remedies)
Griffin v. Harrisburg Property Services, Inc., 421 Fed. Appx. 204 (3d Cir. 2011) (elements of hostile work environment; use of racial epithets can be material)
R.A. By and Through N.A. v. First Church of Christ, 748 A.2d 692 (Pa. 2000) (scope of employment for intentional acts; personal disputes may fall outside)
Fitzgerald v. McCutcheon, 410 A.2d 1270 (Pa. Super. 1979) (assaults by employees may be outside scope of employment)
Rodgers v. W.S. Life Ins. Co., 12 F.3d 668 (7th Cir. 1993) (explanation of how a racially harassing event can affect environment)