KIMBERLY HAYES, Plaintiff, v. SILVERS, LANGSAM & WEITZMAN, P.C. AND JOHN DOES 1-5 AND 6-10, Defendants
NO. 19-940
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
February 28, 2020
MEMORANDUM OPINION
Defendant Silvers, Langsam & Wеitzman, P.C. (“the Firm” or “Defendant”) moves for summary judgment on Plaintiff Kimberly Hayes‘s sexual harassment claims. For the reasons that follow, Defendant‘s motion will be denied.
I. BACKGROUND
Hayes worked as a paralegal at the Firm for two months, beginning on January 8, 2018. Hayes asserts that, as an employee of the Firm, she “was subjectеd to a hostile work environment based upon her sex on an almost weekly basis.” Specifically, Hayes alleges that her supervising attorney, Frank Breitman, would near-weekly grab her by the shoulder and waist and ask, “How‘s my favorite girl doing?” and occasionally brush against her buttocks. In addition, Hayes identifiеs seven alleged instances of “unwelcome and inappropriate comments” from members of the firm: 1) Todd Fiore, the Firm‘s IT contractor, stating to Breitman, “Look at her, she has a nice ass,” and Breitman responding, “Yeah, the things I would like to do to that;” 2) Breitman telling Hayes she was “the prettiest woman [he‘d] ever laid eyes on;” 3) Breitman asking the Firm‘s office manager, Dina Korenberg, whether she would let him watch her have sex with a woman and then asking Hayes whether she was interested in women “because it would be hot to watch;” 4) Breitman telling Hayes “your boobs look good;” 5) Adrian Moody, an attorney at the Firm, telling Hayes, “How are you a white girl, you have a big black booty?;” 6) Korenberg telling Hayes to dress more like another paralegal who wore low cut shirts; and 7) Dean Weitzman, the Firm‘s managing partner, saying “That‘s what I like to see, now I have something sexy to look at,” after Hayes‘s сubicle was moved close to his office.1 Hayes also asserts that when she complained to the lead paralegal about Breitman‘s behavior she was told “you have to get used to it.” To support her allegations, Hayes has provided copies of text messages betwеen her and a secretary at the Firm, in which she references her coworkers’ “wrong” behavior and mentions
On March 9, 2018, Hayes was terminated from the Firm on the stated bеlief that she had misrepresented the Firm‘s involvement in a real estate matter. Then, in February 2019, Hayes sued the Firm, claiming violations of
II. STANDARD OF REVIEW
“[S]ummary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Alabama v. North Carolina, 560 U.S. 330, 344 (2010) (citations and internal quotations omitted). In ruling on a summary judgment motion, a court must “view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment.” Scott v. Harris, 550 U.S. 372, 378 (2007) (internal quotations and alterations omitted). “A genuine issue is present when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the non-moving party in light of his burden of proof.” Abington Friends Sch., 480 F.3d at 256.
However, “unsupported assertions, conclusory allegations, or mere suspicions” are insufficient to create an issue of fact and defeat summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F. Supp. 2d 490, 493 (E.D. Pa. 2010) (citing Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989)).
Defendant advances two main arguments in favor of summary judgment. First, Defendant argues that Hayes is not credible and that her evidence is either inadmissible or insufficient to create an issue of fact. Defendant suggests that, to the extent Hayes was having issues with coworkers, these issues were not sexual in nature; Defendant also implies that Hayes fabricated her allegations in response to her terminatiоn. Second, Defendant argues that even if the things Hayes said happened, happened, she has not established a prima facia case of sexual harassment because “three discreet incidents of merely crude comments cannot constitute ‘severe or pervasive’ conduct that would detrimentally affect a reasonable woman in her position.”
However, summary judgment is inappropriate in this case because there remain disputed questions of material fact. Defendant‘s description of Hayes‘s claim encapsulates this factuаl dispute. Defendant asserts that Hayes‘s claim is based on only “three . . . incidents,” and it identifies these incidents as “(1) Information Technology independent contractor, Todd Fiore commenting that Ms. Hayes ‘had a nice ass,’ to which attorney Frank Breitman responded by stating ‘the things he would do to it,’ and thаt he would like to see Ms. Hayes have sex with another woman; (2) Mr. Weitzman stating that he had ‘something sexy to look at,’ when Ms. Hayes moved her desk to a location in front of Mr. Weitzman‘s office.” Hayes, however, identifies additional incidents—Breitman‘s touching, Breitman‘s comments about her appeаrance, Moody‘s comment about her ass, and Korenberg‘s statement about her clothing.4
Though Defendant asserts that
Drawing all reasonable inferences in favor of Hayes, the Court finds that Hayes has put forth enough evidence to move ahead to trial. Hayes specifically identified at least seven discreet instances of harassing behavior, as well as repeated advances from Breitman and indifference from the lead paralegal. She also produced texts sent well before the inception of this litigation suggesting that she was having issues with attorneys at the firm.5 Schofield‘s testimony about her uncomfortable interactions with Breitman likewise support Hayes‘s claims, and they are relevant and admissible to the extent that they are indicative of a pattern of behavior. See Bush v. Gulf Coast Elec. Coop., Inc., 2015 WL 5610852, at *2 (N.D. Fla. Sept. 23, 2015) (finding evidence that defendant‘s employee had harassed another employee relevant to plaintiff‘s gender discrimination claim and admissible at trial in that it demonstrated а pattern of harassing behavior). Furthermore, Nix‘s testimony arguably supports Hayes‘s allegations as well. To the extent Defendant has an alternative explanation for Hayes‘s texts and her conversation with Nix—to wit, that Hayes was having problems at work but was not being sexually harassed—it is for a triеr of fact, not for the Court, to determine which scenario is more plausible.
Critically, these issues of fact are also material. Though Defendant asserts that the harassment Hayes experienced was not “severe or pervasive,” this is not a case in which “[p]laintiff fails to assert thаt the alleged unwelcome sexual conduct occurr[ed] with any specific frequency or in any regular pattern,” Benny v. Com. of Pa., Dep‘t of Corr., 400 F. Supp. 2d 831, 837 (W.D. Pa. 2005), aff‘d sub nom., Benny v. Pennsylvania, Dep‘t of Corr., State Corr. Inst. at Somerset, 211 F. App‘x 96 (3d Cir. 2006) (granting defendant‘s motion for summary judgment on hostile work environment claim), or where plaintiff alleges isolated instanсes of harassment across years or months, see Saidu-Kamara v. Parkway Corp., 155 F. Supp. 2d 436, 440 (E.D. Pa. 2001) (granting defendant‘s motion for summary judgment where plaintiff cited only “four incidents” occurring “over nearly a year and a half”); Barnett v. Lowes Home Centers, LLC, 2019 WL 1047496, at *11 (E.D. Pa. Mar. 5, 2019) (granting defendant‘s motion for summary judgment where plaintiff alleged “two comments which came seventeen months apart”). Nor has Hayes alleged “simple teasing.” See Rorke v. Toyota, 399 F. Supp. 3d 258, 279 (M.D. Pa. 2019) (finding that defendant‘s employee‘s repeated use of sexualized nicknames and questions about coworkers’ sex lives exceeded simple teasing and denying defendant summary judgment).
Rather, Hayes alleges she was regularly harassed and identifies at least seven incidents within an eight-week period, as well as regular unwanted touching. If true, these incidents could constitute “severe and pervasive” harassment. See Gatter v. IKA-Works, Inc., 2016 WL 7338770, at *9 (E.D. Pa. Dec. 19, 2016) (denying defendant summary judgment on
IV. CONCLUSION
Because material facts remain in dispute, Defendant‘s motion for summary judgment shall be denied.
An appropriate order follows.
February 28, 2020
BY THE COURT:
/s/Wendy Beetlestone, J.
WENDY BEETLESTONE, J.
Notes
At her deposition, Hayes specifically described incidents 1, 3, 5-7; these incidents are also described in her interrogatory answers. In her interrogatory answers, Hayes additionally described incidents 2 and 4 and Breitman‘s touching; these incidents are also described in her Complaint and in an EEOC charge. Defendant argues the Court should disregard statements supported by Hayes‘s Complaint, interrogatory answers and EEOC charge but not mentioned in her deposition. Indeed, Hayes cannot rely solely on her Complaint and EEOC charge to create a genuine issue of material fact. See Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000) (explaining that a party must go “beyond the pleadings” to raise a genuine issue of material fact). And, as to the EEOC charge specifically, Defendant claims it was not included in the record, and a party opposing summary judgment must rely on record evidence. Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (emphasis added). Hayes may, however, rely on information in her interrogatory answers, and that information will be credited on summary judgment. See Blystone v. Owens Illinois, Inc., 2020 WL 375886, at *2 (E.D. Pa. Jan. 22, 2020) (including “interrogatory answers” as examples of “materials in the record” which may be used to create a genuine issue of material fact). Though Defendant asserts Hayes‘s deposition testimony should “trump” her interrogatory answers, Defеndant cites no caselaw to support the proposition that interrogatory answers should be disfavored at summary judgment. To the extent that there is some tension between Hayes‘s deposition testimony and her interrogatory answers, it is for a trier of fact to determine what occurrеd. Golden Bridge Tech., Inc. v. Apple Inc., 937 F. Supp. 2d 504, 522 (D. Del. 2013), adhered to on reconsideration (Apr. 25, 2013), aff‘d, 758 F.3d 1362 (Fed. Cir. 2014)
Defendant acknowledges these two additional allegations in its Reрly but denies that these or the other comments identified by Hayes were made; it also argues that Hayes has failed to demonstrate that Korenberg‘s comment was made “because of [Hayes‘s] sex.” However, the Court declines to consider arguments raised for the first time in a Reply brief and thеrefore deems Defendant‘s argument as to whether Korenberg‘s comment was “because of sex” waived. See Laborers’ Int‘l Union of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994); see also In re BlackRock Mut. Funds Advisory Fee Litig., 327 F. Supp. 3d 690, 736 n.42 (D.N.J. 2018) (“[C]ourts ordinarily decline to consider arguments raised for the first time in a reply brief. . . .”). Defendant was aware of these allegations from Hayes‘s interrogatory answers, deposition and other filings and could have addressed them in its initial brief.