Before the court is a motion for summary judgment filed by the defendants, The Wood Company and Larry Bausch (sometimes collectively referred to as “the defendants”). The plaintiff, Patricia Davitt opposes the motion for summary judgment.
Davitt filed a complaint of discrimination against defendants with the Pennsylvania Human Relations Commission (PHRC) on September 10,1999. This complaint asserted claims against the defendants for sexual discrimination, harassment, and retaliation. This complaint was also cross-filed with the Equal Employment Opportunity Commission (EEOC), which issued Davitt a notice of right to sue on May 22, 2000. On March 20, 2000, Davitt commenced this action by filing a praecipe for writ of summons. Subsequently, after pre-complaint dis
Count I of Davitt’s amended complaint asserts discrimination, harassment, and retaliation claims against Wood pursuant to title VII. In support of these claims, Davitt relies upon alleged statements made and actions committed by Wood’s employees between July of 1986 and August of 2000 while she was employed by Wood at the Easton Hospital account. Defendants first argue that, to the extent that such claims are based on the conduct of Bausch, they are entitled to summary judgment because all of his alleged conduct occurred more than 300 days before Davitt filed her PHRC complaints.
In order to pursue a cause of action under title VII, a plaintiff must file an administrative complaint with the EEOC within 180 days of the alleged discrimination. 42 U.S.C. §2000e-5(a). This limitation period is increased to 300 days where the plaintiff initially institutes proceedings with a state or local agency with authority to grant or seek relief from such discrimination. Because
The continuing violation theory is premised on the equitable notion that the statute of limitations should not begin to run until a reasonable person would be aware that his or her rights have been violated. Jones v. WDAS FM/AM Radio Stations, 74 F. Supp.2d 455 (E.D. Pa. 1999). To establish that a claim that is otherwise time-barred falls within the continuing violation doctrine, a plaintiff must establish the following two elements: (1) that at least one discriminatory act occurred within the 300-day time period; and (2) that the harassment is more than the occurrence of isolated or sporadic acts of intentional discrimination. In evaluating whether the second
Our first review, then, is to determine whether there is a material issue of fact concerning the existence of these two elements.
The record does reveal instances which a jury could conclude that a hostile work environment continued to exist after November 14, 1998.
However, the record also reflects that Davitt knew or should have known well before 300-days prior to the filing of their charge with the EEOC and PHRC that her rights had been violated. As a result, the continuing vio
Defendants next argue that to the extent that Davitt’s hostile work environment sexual harassment claims are based on Bausch’s actions, the conduct alleged is not sufficient to establish the existence of a sexually hostile work environment. Since we have concluded that no events which occurred before November 14, 1998, will be considered, we need not address this issue since Bausch was transferred from the Easton Hospital account in August of 1998. Therefore, no action of Bausch’s may be considered and he is entitled to summary judgment on this count.
Davitt has also set forth a claim for hostile work environment sexual harassment based on the conduct of her co-workers, namely Conklin, Lichtenwalner, McKelvey,
A female plaintiff alleging that sexual harassment created an abusive or hostile working environment must show by the totality of the circumstances that a hostile or abusive working environment existed which is severe enough to affect her psychological stability. In order to prove a hostile work environment, plaintiff must show: (1) that she suffered intentional discrimination because of her sex; (2) that the discrimination was pervasive and regular; (3) that the discrimination detrimentally affected. the plaintiff; (4) that the discrimination would detrimentally affect a reasonable person in the same situation; and (5) the existence of respondent superior liability. Kunin v. Sears Roebuck and Co., 175 F.3d 289, 293 (3d Cir. 1999). Moreover, if the person(s) accused of creating the hostile environment are co-workers of a plaintiff, and not a supervisor, liability exists only where the defendant employer knew or should have known of the harassment and failed to take prompt remedial action. Id.
Some of the claimed acts/statements by these employees related to employees other than Davitt. Wood claims that such acts/statements cannot form the basis of a hostile environment claim and that, therefore, Davitt’s proof is lacking. We conclude, following the analysis in such cases as Creamer v. Laidlaw Transit Inc., 86 F.3d 167 (C.A. 10, 1996); Dellert v. Total Vision Inc., 875 F. Supp. 506 (N.D. Ill. 1995); and Stair v. Lehigh Valley Carpen
Secondly, Wood claims that statements regarding Davitt’s sexual orientation may not form a basis for discrimination or harassment claims. Davitt claims that a few of the Wood employees made comments to other employees that Davitt is a lesbian. Wood cites to the case of Bibby v. Philadelphia Coca-Cola Bottling Co., 2001 U.S. App. Lexis 17075 (3d Cir. August 1, 2001) for support of its position. Davitt contends, and we agree, that Bibby is distinguishable from this case.
Bibby dealt with a same sex sexual harassment situation wherein plaintiff alleged that he was harassed because of his sexual orientation. Davitt does not claim that she was discriminated against or harassed because of her sexual orientation. In fact, she claims that the allegations of being a lesbian were untrue and that this untruth was just an example of her being harassed because she is a woman. Therefore, we agree with Davitt that Bibby does not control this case.
However, even though we agree with Davitt that the creation of rumors of the sexual activity alleged here is offensive, noxious, and inappropriate, we do not believe that it is actionable under title VII. As stated by the United States Supreme Court in Oncale v. Sundowner Offshore Services Inc., 523 U.S. 75 (1998), the plaintiff must prove that the conduct at issue was not merely tinged with of
However, we agree with Davitt that a hostile work environment determination must be made upon “the totality of the circumstances.” Therefore, after eliminating the incidents that, as a matter of law, have no bearing on the hostile work environment determination, we will look at the remaining incidents collectively. After considering (and ruling upon) all of the foregoing, we are left with the following allegations of conduct on the part of co-employees, not in a supervisory position over Davitt, which Davitt claims constitute a hostile work environment: (1) Conlin massaged Davitt’s shoulders on a few occasions;
Davitt also made allegations in her complaint that there were retaliatory acts taken against her which impose liability against the defendants under title VII. Davitt has withdrawn all such claims except the one relating to the reorganization of Wood’s Easton Hospital account in 2000. However, we find that Davitt has not raised an issue of material fact sufficient to withstand defendants’ motion for summary judgment on this issue. A chronology of the facts is required for this analysis.
As mentioned previously, Davitt filed her PHRC complaint in September 1999. In March of 2000, Wood began planning the reorganization of the Easton Hospital account. In May of 2000, Davitt filed her complaint in state court, alleging slander and false light invasion of privacy. On July 13, 2000, Davitt was informed that her position would be eliminated in conjunction with the reorganization but was told by her immediate supervisor that a new position was available for her. However, Davitt
In order to establish a prima facie claim of retaliation under title VII, a plaintiff must establish: (1) that she engaged in protected activity; (2) that the employer took an adverse employment action against her after or contemporaneously with the protected activity; and (3) a causal link between the adverse employment action and the protected activity. Williams v. Pennsylvania State Police — Bureau of Liquor Control Enforcement, 108 F. Supp.2d. 460, 467 (E.D. Pa. 2000).
The United States Court of Appeals for the Third Circuit has held that:
“Retaliatory conduct other than discharge or refusal to rehire is thus proscribed by title VII only if it alters the employee’s ‘compensation, terms, conditions, or privileges of employment,’ deprives him or her of ‘employment opportunities,’ or ‘adversely affects his or her status as an employee.’ It follows that ‘not everything that makes an employee unhappy’ qualifies as retaliation, for ‘otherwise, minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination smt.’'' Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997) (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)).
Here, Davitt admitted in her deposition that she was offered a new position and refused it. There is no evidence presented that there was any significant altering
We now turn to the only remaining claims, the common-law torts of slander and false light invasion of privacy. Count VII of the complaint alleges a cause of action for slander. Davitt alleges that statements made by Bausch and “supervisory and managerial employees” of Wood regarding her sexual orientation (lesbianism) and conduct “imputed unchaste conduct” to her. Defendants argue that (1) this cause of action is barred by the one-year statute of limitation; (2) the statements made could not be reasonably capable of conveying a defamatory
In order to sustain an actionable claim of slander, a plaintiff must demonstrate special harm resulting from the publication of the defamatory statements. 42 Pa. C.S. §8343(a)(6). “Special harm” means harm of an economic or pecuniary nature. Mere loss of reputation is not sufficient to prove special harm. Agriss v. Roadway Express Inc., 334 Pa. Super. 295, 483 A.2d 456 (1984); Bethel v. McAllister Bros. Inc., 1993 U.S. Dist. Lexis 4243, * 25-26 (E.D. Pa. March 30, 1993). A plaintiff is relieved of the requirement to prove “special harm” only where the alleged defamatory statements constitute slander per se. Slander per se requires words imputing either: (1) criminal offense; (2) loathsome disease; (3) business misconduct; or (4) serious sexual misconduct. Clemente v. Espinosa, 749 F. Supp. 672 (E.D. Pa. 1990).
Since she has failed to allege or prove any special harm, Davitt argues that the allegations of lesbianism inputed unchaste conduct to her, rising to the level of “serious sexual misconduct.” We disagree. To say that the allegations allegedly made by Bausch and Wood’s other employees, all relating to homosexual sexual practices constitute “serious sexual misconduct” would be contrary to today’s mores and community sentiment. As the briefs of the parties point out, nearly one-half of the American public believe that homosexuality is an ac
Davitt also argues that the false statements made imputed “business misconduct” to her. The statement forming the basis of this argument was that Davitt and another female employee were “too busy engaging” in sexual activity “to care what was going on at work.” It is the court’s function to determine whether a statement constitutes slander per se. Fox v. Kahn, 421 Pa. 563, 221 A.2d 181 (1966). Such a comment clearly cannot be deemed to have alleged business misconduct.
Davitt’s last claim to be considered is false light invasion of privacy. Both defendants argue that this cause of action must fail because the false information was not “given publicity.” Wood further argues that it may not be held vicariously liable for any intentional torts of its employees unless the acts were committed during the course of and within the scope of their employment. Because we believe that genuine issues of material fact exist concerning both of these issues, we deny defendants’ motion for summary judgment on this claim and will permit it to be tried before a jury.
And now, April 30, 2002, in consideration of the defendants’ motion for summary judgment, after argument thereon, and for the reasons set forth in the accompanying opinion, said motion is granted in part and denied in part. Judgment is entered in favor of the defendants and against the plaintiff on Counts I through III and Count VII. Defendants’ motion for summary judgment as to Count VHI is denied and jury trial on this claim is scheduled for August 26, 2002.
. The complaint also set forth causes of action on behalf of another plaintiff, Cynthia Mlodzienski. After oral argument, her case has settled. We will, therefore, only deal with Davitt’s claims in this opinion.
. Davitt has consented to the dismissal of her negligent supervision and negligent retention claims (Counts II, and IH), and all title VII retaliation claims with the exception of Davitt’s retaliation claim based on Wood’s reorganization of its Easton Hospital account in 2000.
. Although defendants argue that Davitt has failed to plead a continuing violation theory, we disagree and will reach the substantive merits of this issue.
. Those instances are summarized on p. 45 of plaintiffs’ brief in opposition to motion for summary judgment.
. It should be noted that Davitt attempted to distinguish Cronin by stating that it is not known whether the complaint of discrimination made by plaintiff to the employer was based upon a theory of hostile environment. That interpretation of the case is, at best, strained, since that was the claim made in the lawsuit.
. Again, for the reasons set forth above, we will limit consideration of these individuals’ actions to after November 14, 1998.
. No dates have been established on the record but we will assume, for these purposes, that they occurred after November 14,1998.
. Clerk of Courts, Civil Division, is directed to serve a copy of this order and opinion on plaintiff since her counsel have withdrawn their appearance.