MEMORANDUM
Prеsently before the court is Defendants’ joint motion for summary judgment (Doc. 38) challenging the adequacy of Plaintiffs 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.
I. Background
A. Facts
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 (Wand-rich”), a Caucasian female who was employed as the E-Library Administrator at the headquarters. (Doc. 39, ¶ 14; Doc. 19, ¶ 17.) Plaintiffs 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 Plaintiffs 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,
It started to be kinda a running joke. You have to keep a bucket of cold water handy just to separate the two ‘cause it was out of control.... They have a friendship that they are letting affect the workplace ... I had a lot of people come up to me and make comments about it.
(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 Plaintiffs 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 Emрloyment 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
Plaintiffs results were less than impressive. He received scores ranging between 3.86134 and 4.79720 out of nine possible рoints for his performance between both panels of the Oral Board. (Burton Dep. at Ex. 5, pp. 2-3.) After standardizing the scores and re-sealing, 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
I have continued to take heat this past year over the amount of time that you and Mrs. Pamela J. Yandrich spend in each other’s office. For the most part I have defended your actions as you both continue to do good work.
I decided that this week, I would simply observe and not say anything. On Tuesday, the 25th of November, I watched as you spent a total of three and a half hours with Pam in your office before she came out.
On Wednesday, the 26th of November, she was in your office for a total of two hours and 20 minutes before I went to lunch. I also observed that you stood in her office for at least one and a half hours in the afternoon.
The Bureau as a whole is under scrutiny, and I cannot logically justify the amount of time being spent in each other’s office.
I have asked the both of you to monitor the amount of time spent together. It is now getting to the point where it is affecting the things that I do. I cannot allow this to continue.
I am not going to dictate the amount of time that you interact. However, you must be much more reasonable in the amount of time spent together.
This is not open for discussion or debate. Simply watch what you are doing.
(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 spеcifically 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 Yandrieh’s behavior:
I started watching them; mainly only whenever I would o back for coffee or when I would go back to talk to one o the Lieutenants. If I would go to talk to [Yandrich], it really seemed that 99% of the time I’d go in to talk to one of the two, [Plaintiff] was in [Yandrichs office.] It was clear to me that they did not reduce their frequency or duration at all.
(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 Jаnuary 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 Plaintiffs 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:
I didn’t understand why you were sending a Supervisor to the Cadet Oral Boards when you told me in 2007 (after I volunteered for Cadet Oral Boards upon becoming Supervisor) that you didn’t send your Supervisors out and that you needed them here. And, your practice since then ... was to always comes to me and ask me who was next up for whatever detail that was going on at that time. You told me that my name was given to you to attend the Oral Boards.... When I asked who gave you my name you replied “the Major.” ... I then asked you if the Major was giving me a shot. You said, ‘You didn’t know.’[15 ] I then stated to you that Ifelt like it’s either discrimination or retaliation or both. I thought it might be retaliation due to the inappropriate things I’ve heard going on around here and related as much to you in our conversation. And now, all of a sudden, the practice that you’ve had the last couple years has changed, and now I’m singled out specifically by Major Stein. I also think its discrimination due to you specifically saying that Major Stein singled me out and the fact the majority of this Bureau consists of white Caucasian males who I see standing around daily for lengthy periods of time (sometimes with their Supervisors) talking, and nothing ever being said or done about that. But, as soon as I start talking to Mrs. Yandrich, it’s a problem. You also told me, a few months ago, that you made the following statement to Major Stein[,] ‘As soon as a Black man talks to a White Wom[a]n, it’s a problem.’ This same statement was also repeated to me by Major Stein.
It should also be noted that you, on numerous occasions, stated that I do good work and that you didn’t have a problem with my work, as my most recent EPR (which was completed by you) reflects. I also feel as the EEO Liaison when things are brought to your attention you choose to do nothing about them. I’ve spoken to several Supervisors and in all the years they’ve been in this Bureau the practice has been that unless a Supervisor volunteered for an assignment, nonsupervisory members were selected to attend. And they too believe this to be a form of retaliation .... This, along with your practice of always inquiring who’s up next for assignment and telling me you don’t send your Supervisors out are reasons for me to be concerned. As of January 7, 2009, my detail has been switched to the Farm Show ... I feel also as a Supervisor I should have preference as to what detail that I’m ordered to attend. These reasons are justification for obtaining counsel.[16 ]
(Doc. 41-3, pp. 19-20.) The following day, Lt. Harrison responded by letter, stating:
[I]t should be obvious to you that the manpower situation in the Bureau is different than it was several years ago. This is going to require that you do more work.
* * *
The Farm Show Detail calls for Trooper/Corporal assignment. You are a Corporal; and can be assigned as needed. The needs of the Department come first, and you do not get a say in the matter if I, as the Division Director, make an assignment. The fact that I have asked for input in the past, does not mean that I need to or will in the future.
You are not losing money or having to travel for this assignment. You have not been stripped of your rank. Yet you feel that you havе been retaliated against. By your logic, any assignment given that you are not in agreement with would be retaliation.
You conveniently omit details in your correspondence. While I have statedthat there is no problem with you speaking with Mrs. Yandrich, I have also told you to watch the excessive amount of time spent together during the work day. Three and a half hours, without a break is excessive. I do not care who it is that is involved.
(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 inappropriate 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 Plaintiffs 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 Yаndrich as coworkers and friends and said they did not communicate outside of work. (Id.)
Yandrich corroborated Plaintiffs 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 nеver 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 Plaintiffs allegations against Major Stein were “unfounded” as to the disparate treatment claim and “sustained”
Major John Laufer reviewed Lt. Winter-bottom’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 cоnsequently 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 frequentеd 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 Plaintiffs hotel guest that did not match Yandrich, Cpl. Wise compared the dates of Plaintiffs hotel check-ins 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.
I was at the end of my rope as far as everything that had happened to me. Pretty much from 2009 on, somewhere in 2009, I just stayed in my office. I came out to give my assignments to my subordinates, and I pretty much stayed in my office. You know, I felt like I wassettling with [Lt] Margeson in 2008 with me being sent to the Farm Show, and them trying to take my position for no reason, and then being disciplined for doing something everybody else was doing that [Lt. Winterbottom] was aware of....
I was to the point where, you know, I could no longer stay within that cube of mine, and everything had just come to a head for me. I mean, it was an embarrassing and humiliating situation to know that there are people sitting there looking at you, knowing that you got disciplined for doing something they were doing. That in their minds, and they know that the department came after you. Curtis Getz said himself, he said [’]I knew when you filed an EEO complaint, they were going to come after you[.’] I mean, so at that point in time I had had all I could take. And I didn’t know what else they were going to do. If they can go ahead and do an investigation that was that deliberate against me, I’m [not] going to take a chance that they’re going to takе my medical away or pension away from me.
(Burton Dep. at pp. 104-105.)
B. Procedural History
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).
II. Legal Standard
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.,
A disputed fact is “material” if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Id.,
The initial burden is on the moving party to show an absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
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 color-able, conclusory or speculative. Anderson, 477 U.S. at 249-50,
III. Discussion
Plaintiff alleges that he suffered adverse employment actions for unlawful discrimi
A. Procedural Analysis
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,
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 othеr 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 Plaintiffs 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, ie., the discipline and failure to promote, and that the EEOC did not have time to adequately investigate Plaintiffs 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,
In this case, Plaintiffs 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,
B. Substantive Analysis
Both Plaintiffs amended complaint and brief in opposition to Defendants’ motion for summary judgment suffer from vagueness and inconsistency and are laden with generalities heaped upon eonclusory statements, which Plaintiff predicates on nothing more than his own beliefs. In fact, a careful analysis of the record demonstrates that Plaintiffs allegations simply are not supported. These defects are fatal to Plaintiffs case on all counts, and for the reasons that follow, the court will grant Defendants’ motion for summary judgment in its entirety.
1. Discrimination Claims (Counts I and II)
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:
to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex or national origin.
42 U.S.C. § 2000e-2(a)(l) (emphasis added). The PHRA likewise prohibits discrimination by an employer on the basis of race.
[a] tangible employment action constituting] a significant change in emplоyment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.... A tangible employment action in most cases inflicts direct economic harm.
Burlington Indus., Inc. v. Ellerth,
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,
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.
a. Supervisor’s Notation
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,
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 Plaintiffs 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.,
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 [Supervisor’s [Notation 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 non-moving 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. Winter-bottom, 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.
b. Suspension Without Pay
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,
In the matter sub judice, Plaintiffs efforts to create an inference of discrimination by showing that his race played a rolе in PSP’s decision to investigate him fails for several reasons. First, Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 estab
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 Plaintiffs purported untruthfulness in answering questions related to the confidential correspondence he inadvertently read. Plaintiff argues:
[T]he entirety of the bases used to justify the Plaintiffs suspension stemmed from the investigation of ... Plaintiff. That is, there was no investigation of the lunch-time joking by ... Plaintiff until Lt. Winterbottom began her investigation of him. But-for that investigation there would not have been a letter for ... Plaintiff to accidently read and be accused of lying about (which [PSP] asserts] was the primary basis for the suspension). Since no one else was investigated, the other participants were not vulnerable to disciplinary action. Accordingly we will never know if an investigation would have uncovered other acts of alleged misconduct.
(Doc. 44, p. 11 of 26.) However, Plaintiffs but-for argument is misguided. Lt. Winterbottom did not uncover the possibility that Plaintiff made inappropriate lunchroom comments during her subsequent investigation into Plaintiffs infractions. Rather, Lt.- Winterbottom first learned of the alleged comments when Major Stein made the accusation against Plaintiff while being questioned regarding Plaintiffs 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 Plaintiffs 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. (Burtоn 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 Plaintiffs. 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.
c. Failure to Promote
Plaintiff also alleges that he was discriminated against on the basis of his race in thе 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 Plaintiffs 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
d. Lt. Harrison’s Remark
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. Plaintiffs 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 Plaintiffs claims in Counts I and II of the amended complaint will be granted.
2. Retaliation Claims (Counts III through VI)
In Counts III through VI of the amended complaint, Plaintiff asserts claims against both PSP and Lt. Winter-bottom 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, Plaintiffs 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
a. The Supervisor’s Notation
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 Plaintiffs 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,
b. The Threat and Attempted Removal
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 cоmment as “a clear threat” and claims that Major Stein followed through on the threat when he offered Plaintiffs 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 Plaintiffs 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 Plaintiffs 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
c. The Detail Assignments
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.
d. The Investigations
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 Plaintiffs claims, notwithstanding Plaintiffs election not to file a complaint with the Department. Based on Plaintiffs 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 Plaintiffs 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 concludеs that PSP conducted a comprehensive investigation into Plaintiffs complaints.
As to Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Plaintiffs suspension, it appears that Plaintiff is grasping at straws. Indeed, Plaintiffs 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,
■ Likewise, PSP had a legitimate business reason for IAD 2010-0740. Despite Plaintiffs 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.
3. Constructive Discharge Claim
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 Plaintiffs largely baseless claims in this case, the court will persist through the home stretch and engage Plaintiffs 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.,
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 Plaintiffs claims, for purposes of this motion, that the statement was a threat of discharge, there is no causation between the statement and Plaintiffs resignation as three years had passed between the two events. See McWilliams,
Moreover, Plaintiffs 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
4. Section 1983 Claims Against Lt. Winterbottom (Counts VII and VIII)
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:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
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,
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 failurе to properly investigate the inappropriate sexual comments by Major Stein or PSP’s decision to conduct the subsequent investigations of Plaintiff. Rather, Plaintiffs 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 hims.elf 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
TV. Conclusion
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 Plaintiffs 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.
ORDER
In accordance with the accompanying memorandum of law, IT IS HEREBY ORDERED that Defendants’ motion for summary judgment (Doc. 38) is GRANTED.
The Clerk of Court is directed to enter judgment in favor of Defendants and against Plaintiff.
The Clerk of Court shall close the case.
Notes
.In considering the instant motiоn, the court relied on the uncontested facts or, if the facts were disputed, viewed the facts and deduced all reasonable inferences therefrom in the light most favorable to Plaintiff as the non-moving party. See Doe v. C.A.R.S. Prot. Plus,
. PSP is a paramilitary organization and an agency of the Commonwealth of Pennsylvania. It employs in excess of fifteen employees. (Doc. 19, ¶ 10.)
. The term “member” refers to any non-civilian PSP employee with the rank of Trooper or higher. (Doc. 44, p. 8.)
. Plaintiff recalled being spoken to regarding his interactions with Yandrich “at least about six times” in 2007 (Burton Dep. at p. 25) and at least three or four more times in 2008 (Id. at p. 28).
. Lt. Harrison explained that he was talking to Plaintiff "not so much as Lieutenant Harrison to Corporal Burton, but as man-to-man.... This wasn’t an official, 'Hey, Corporal, you gotta do this.’ This was me just trying to give him some advice.... I am in an interracial relationship. So, I know a little about this.” (Harrison Dep. at p. 26.)
. During his deposition, Plaintiff conceded that Major Stein’s comment indicated that he did not run the office like Lt. Harrison’s comment would suggest. (Burton Dep. at p. 32.)
. Major Stein denied making this comment. (Doc. 44-15, p. 27.)
. This was Plaintiffs second attempt at the promotion as he had failed the test previously. (Burton Dep. at p. 57.)
. Burton explained that his concern arose from a previous encounter between Lt. Margeson and Yandrich wherein Lt. Marge-son had spolcen to Yandrich regarding the amount of time she and Plaintiff were spending together at the office. (Burton Dep. at pp. 59-60.)
. The site administrator provided Plaintiff with a copy of a document entitled, "Testing Agreement Document When a Candidate Identifies a Potential Problem With an Assessor.” (Burton Dep. at Ex. 3.) The Testing Agreement offers Sergeant candidates four options to choose from in order to resolve their potential problem with an assessor: 1) to go before the individual assessor with the understanding that the assessors receive specific instruction not to consider outside information or share prior information about the candidate with other assessors on the panel; 2) to have a consultant examine the candidate’s scorеs given by the problem assessor and determine whether the scores are substantially different from those of the other two assessors and, if so, the scores will be deleted as if they never occurred and the final score will be the average of the two remaining assessors; 3) to remove the problem assessor from the room and have the candidate’s score determined from the two remaining assessors; or 4) to reschedule the testing for another day at a different location. (Burton Dep. at Ex. 3; Kassman Dep. at pp. 19-20; Stephens Dep. at pp. 52-53.)
. In order to be promoted to Sergeant, a candidate must be ranked in the top 100 (Burton Dep. at p. 73)
. A Supervisor's Notation is a progressive form of discipline used by PSP. (Burton Dep. at pp. 38-39.) It is placed in the member's personnel file for six months at which time it is removed from the file and disposed of so long as there have been no other issues pertaining to the notation. (Id.) It does not prevent the member from testing for a promotion. (Id.)
.According to Major Stein, Lt. Harrison suggested they send Plaintiff to the Oral Boards because the other staff members were involved in another project. (Doc. 44-15, p. 16.) Major Stein agreed. (Id.) A couple of days later, Lt. Harrison returned to Major Stein’s office and reported that Plaintiff did not want to go to the Oral Boards and recommended that they send Sanzick instead. (Id.) Major Stein recalled that Lt. Harrison was reluctant to make the switch because Plaintiff was continuing to defiantly spend an exorbitant amount of time with Yandrich, but Major Stein suggested they just make Plaintiff happy since it was easier to send Sanzick to the Oral Boards and Plaintiff to the Farm Show as neither one would have to travel for the assignments. (Id. at 18.) Major Stein noted that, earlier in his career, he had gone to the Farm Show as a Trooper, Corporal, and Lieutenant. (Id. at 19.)
. In recounting these events to Lt. Winter-bottom, Lt. Harrison recollected that, when he told Plaintiff about his reassignment to the Farm Show detail, Plaintiff announced, "I’ll go to the Oral Boards, but I will not go to the Farm Show.” (Doc. 44-15, p. 25.) Lt. Harrison said Plaintiff's comment "sealed the deal;” he would not change the assignments again. (Id.) He recalled thinking, "I [will] lose all credibility as a Division Director if the inmates are running the asylum. So, now, come hell or high water, [he's] going to the Farm Show.” (Id.)
. Lt. Harrison told Lt. Winterbottom that he may have said he did not know if Major Stein was giving Plaintiff "a shot,” as Plaintiff alleged, in order "to deflect” Plaintiff's frustration away from him. (Doc. 44-15, p. 25.)
. Regarding his January 8, 2009 letter, Lt. Winterbottom asked Plaintiff whether he thought PSP would investigate his complaints. He replied, "I thought that maybe they would look into it, but ... I don’t know what I was expecting as far as them doing a full-fledged investigation.” (Doc. 44-15, p. 16.) He explained that, at the time, he thought, "I don't want the Department to do an EEOC investigation on my behalf.... I’m not gonna go to the Department when the Department's the problem or people in the Department are the problem.” (Id.)
. In a processing worksheet completed by Captain Hemy relating to his conversation with Plaintiff regarding Plaintiff's allegations, Captain Henry provided the following synopsis of the meeting:
On January 9, 2008, the complainant reported to the EEO Office and indicated that he wanted to make an EEO complaint regarding the way he was being treated at the Bureau. The Complainant related that he believed this treatment was racially motivated. During our meeting, the [C]omplainant related that the Subject [ (Major Stein) ] "runs around the office talking about how he doesn’t like girl[s] that don’t swallow.’’ Additionally, the Complainant states that the Subject "talks about the size of his penis and how he is endowed." The Complainant related that these conversations frequently take place in a public forum with male and female personnel present. The [Cjomplainant was advised to put all of his complaints on paper, which he failed to do. He was subsequently contacted by the EEO Office Director, regarding his complaint and has provided correspondence indicating that he does not wish to pursue his complaint nor does he wish to further discuss the inappropriate comments made by the Subject.
(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 instеad 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.)
. A finding of "sustained” means that the investigation revealed that the conduct alleged did occur. (Laufer Dep. at pp. 10-11.)
. Plaintiff takes issue with Captain Hacken’s assessment in this regard as it. is not clear what evidence he relied upon to conclude there may be a credibility problem. (Doc. 44-1, ¶ 101.) As the court is simply relaying his thoughts and reasoning behind initiating a supplemental investigation, the court does not find it necessary to delve into what particular evidence led Captain Hacken to believe there may be credibility issues.
. According to Major Laufer, the investigation revealed that Plaintiff and Yandrich made numerous telephone calls to one another and took leave on many of the same dates thus providing circumstantial evidence that they had a personal relationship. (Laufer Dep. at pp. 21-33.) Major Laufer did not infer that the relationship was necessarily romantic. (Id. at p. 23.) Moreover, Plaintiff and Yandrich originally denied that they made the phone calls, but telephone records proved otherwise. (Id. atp. 31.)
. An adjudication of "not-sustained” means it cannot be proved one way or another whether the alleged conduct actually occurred. (Laufer Dep. at p. 43.) Because Major Stein’s adjudication was changed to "not-sustained,” the investigation did not go back to the disciplinary office or to Captain Hacken. (Hacken Dep. at p. 54.)
. The first page of the summary report clearly sets forth the reasons for the investigation:
[Ijnformation brought to light in IAD Investigation 2009-0190, which detailed incidents where Corporal Maurice L. Burton was to have made inappropriate sexual comments in the workplace, repeated inappropriate sexual comments attributed to Major Richard A. Stein to other Department members, opened an official IAD confidential correspondence envelope addressed to anothеr member, and was less than truthful regarding questioning relative to the confidential IAD correspondence.
(Doc. 41-6, p. 2.)
. In adjudicating Plaintiff, Major Laufer found that, while it was through no fault of his own that Plaintiff came to possess the confidential correspondence and accepting that he inadvertently opened it, Plaintiff was less than 100-percent truthful in answering questions posed by Lt. Winterbottom with regard to how much of the form he read before he realized he was not authorized. (Doc. 41-6, p. 3.)
. Plaintiff received notice of his five day suspension without pay on December 3, 2010. (Burton Dep. at p. 98, Ex. 7.) After filing a grievance, his suspension was reduced to two days without pay. (Id. at Ex. 9.)
. By retiring five years early, Plaintiff received fifty-percent of his pension for twenty years of service rather than the 75-percent he would have received after completing 25 years with PSP. (Burton Dep. at pp. 106-107.)
. The amended complaint contains the following six counts: Count I — Race Discrimination in Violation of Title VII Against PSP; Count II- — Race Discrimination in Violation of the PHRA Against PSP; Count III — Retaliation in Violation of Title VII Against PSP and Lt. Winterbottom Collectively and Individually; Count IV — Retaliation in Violation of the PHRA Against PSP and Lt. Winterbottom Collectively and Individually; Count V — Retaliation in Violation of Title VII; Count VI— Retaliation in Violation of the PHRA Against PSP and Lt. Winterbottom Collectively and Individually; Count VII — Retaliation in Violation of 42 U.S.C. § 1983 Against Lt. Winter-bottom; Count VIII — Retaliation in Violation of 42 U.S.C. § 1983 Against Lt. Winterbottom. (Doc. 19.)
. The court notes that, despite being granted an extension of time to file his opposition to the motion for summary judgment, Plaintiff's opposition was untimely filed. As the court preferred to dispose of Defendants’ mo'tion for
. For the sake of simplicity, the court will refer to Plaintiff’s administrative charges, which were dually filed with the EEOC and the PHRC, as EEOC charges.
. In a letter attached to his second charge of discrimination, Plaintiff wrote:
Following my EEOC Complaint and the filing of my [PHRC] Complaint, I was retaliated against.
I have been treated in a disrespectful and disparate and retaliatory manner by Lt. Winterbottom who is allegedly investigating allegations made against Major Stein. As a consequence of my allegations against the [PSP], I now find myself on disciplinary charges for allegedly reading a confidential and privileged document which happened to be placed in my mailbox where the incoming mail is dropped. Obviously, it was not my intent to read the document and it was inadvertently opened and to be disciplined for this is plainly ridiculous and significantly] overbroad.
Further, I have been the target of an ongoing investigation on an event that happened three years ago in which everyone participated.
I continue to be singled out for disparate discipline on the basis of my race and I am filing this additional complaint for retaliation accordingly. Further, my case is allegedly, closed, at least from an administrative standpoint and yet Lt. Winterbottom continues to ask questions and continues to “investigate” me.
I am naming Lt. Winterbottom as an aider and abettor.
(Doc. 41-9, p. 17.)
. The court will analyze Plaintiff's Title VII and PHRA claims together inasmuch as claims brought pursuant to Title VII and the PHRA are generally analyzed under the same standards. See Wilkerson v. New Media Tech. Charter Sch., Inc.,
. Courts frequently, but not always, require the plaintiff to show an additional element— that he or she was qualified for the job in question. See, e.g. Geraci v. Moody-Tottrup, Int’l, Inc.,
. Plaintiff did not include any arguments regarding the promotion process in his brief, citing PSP’s failure to do the same, and asserts that PSP concedes his argument that he was discriminated against in the promotion process. (Doc. 44, p. 2) In its reply brief, PSP responds that it was not clear from Plaintiff's amended complaint that he intended to allege a failure to promote claim, and subsequently briefs the issue. (Doc. 48, p. 4.) The court concurs that Plaintiff's allegation in this instance was less than clear.
. Congress has enunciated that protected activity consists of (a) opposing an employment practice prohibited by Title VII, or (b) filling a charge, testifying, assisting or otherwise participating in an investigation, proceeding, or hearing pursuant to Title VII. 42 U.S.C. § 2000e-3(a); See, Fogleman v. Mercy Hosp., Inc.,
. Title VII provides, in relevant part:
It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin ...
It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful practice by this subchapter, or because he has made a charge ... in an investigation, proceeding or hearing ....
42 U.S.C. § 2000e-2(a), 2000e-3(a) (emphasis added).
. PSP does not dispute that Plaintiff engaged in protected activities; rather, it argues that Plaintiff cannot prove causation. (Doc. 40, p. 14.) While the court finds Plaintiffs report of Major Stein's alleged sexual harassment disingenuous in that no reasonable person could have thought two isolated comments, in the context of a joke — what sadly appears to be typical office behavior at PSP — amounted to sexual harassment and thus would not consider the activity protected under Title VII (see Clark Cnty. Sch. Dist. v. Breeden,
[T]his standard does not require a reviewing court or jury to consider the nature of the discrimination that led to the filing of the charge. Rather, the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint. By focusing on the materiality of the challenged action and the рerspective of a reasonable person in the plaintiff's position, we believe this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination.
Burlington N.,
. The court notes that PSP did not dispute the adverse nature of the Farm Show assignment.
. Plaintiff is not clear in alleging whether he believes his complaint to the EEOC was the impetus behind PSP's investigation or whether it was the complaint he informally lodged internally with PSP. Rather than belabor the issue as it is of no real consequence here, the court will assume he is alleging retaliation for filing the EEOC complaint.
. In addition, the court finds it interesting that Plaintiff is complaining that PSP failed to fully investigate his claims when, at one point, he stated, “I don’t want the Department to do an EEOC investigation on my behalf.” (Doc. 44-15, p. 16.)
. In his brief, Plaintiff alleges for the first time that Captain Aker, who replaced Major Stein, “wanted [] Plaintiff to leave and repeatedly encouraged him to leave; leaving would have meant a transfer to a less desirable position.” (Doc. 44, p. 21 of 25.) Seeing as Plaintiff failed to make this accusation in his amended complaint — an accusation of which he surely would have had personal knowledge prior to filing his complaint, the court declines to address the merits of the argument as it is well-settled that courts need not consider additional claims that are raised for the first time in briefing. See Aldinger v. Spectrum Control, Inc.,
. In the third to last sentence of his brief, Plaintiff asserts a claim for a violation of the equal protection clause of the Fourteenth Amendment. As Plaintiff failed to allege as much in his amended complaint, the court will not address the issue. See Aldinger,
. In addition, the doctrine of qualified immunity shields “government officials performing discretionary functions ... from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,