OPINION
Plaintiff Marie Selvato brings this action against her former employer, Southeastern Pennsylvania Transportation Authority (‘SEPTA'), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (‘Title VIP). Selvato claims that she was subjected to a hostile work environment and discriminated against on the basis of her gender. Before the Court is SEPTA’s Motion for Summary Judgment. SEPTA seeks judgment in its favor on all of Selva-to’s claims against it on the ground that there exist no issues of genuine material fact. For the reasons set forth herein, SEPTA’s motion for summary judgment is granted in its entirety. •
I. BACKGROUND
A. Selvato’s Employment 2004-2009
Marie Selvato began working as a bus operator for SEPTA on September 26, 1994. Joint Appendix (*JA‘) 7; Defendant’s Statement of Uncontested Material Facts
Plaintiff describes a deeply troubling work environment extending over many years. Berardi would often meet Selvato at her work vehicle and direct her to drive him to restaurants and to get coffee; he also asked her to have dinner with him. JA 14. During these rides, Berardi would talk about how ‘his penis was big compared to how his height was' and make sexual jokes. Id. Co-workers put stickers on Selvato’s desk accusing her of ‘doing it' with Berardi and, as a result, she asked Berardi if she could stop driving him around. JA 14-15. In November 2004, Selvato’s coworker Michael Howley commented that individuals working for SEPTA could not get promoted ‘unless your name ended in a vowel' or
In or around February 2008, Selvato was assigned to work on the newly-created ‘3C Team/ which was tasked with collecting video recordings from SEPTA vehicles. JA 7-8. While team members were setting up the new office, co-worker Michael Kir-win made a comment to Selvato implying that she had sex with another employee in order to acquire a phone for the office. JA 37. Also in 2008, Assistant General Manager Michael Liberi asked Selvato and a female co-worker when they lost their vir-ginities, told Selvato she had a ‘great rack/ made a comment that Selvato was ‘working the street/ stated that strings on Selvato’s blouse were dangling across her breasts and distracting him because he wanted to touch them, and asked Selvato whether she was going to be at the shore during the time he was on vacation and said, ‘what can you do for me?‘ JA 30-32. In September 2008, Selvato was transferred off of the 3C Team. JA 10. Selvato was told by two co-workers that she was removed from the team because she had ‘burned [her] bridges.
Despite these events, Plaintiff made no EEO complaint about them until February 17, 2009, when she contacted SEPTA’s Director of Equal Employment Opportunity and Affirmative Action (‘EEO‘), Lorraine McKenzie, detailing the individual harassment from co-workers and supervisors in addition to alleged intimidation, hostile work environment, gender discrimination, and retaliation. JA 52-54. Selvato also completed an interview information form in which she wrote that she wanted to ‘be treated in a fair and professional manner. And work in an intimidation free environment. With no harassment or retaliation. I don’t want to be afraid for my safety or my job. Like I am now/
B. Selvato’s Employment 2010 - 2012
In 2011, after several requests, Selvato was moved back onto the 3C Team. JA 11-12, 92. The inappropriate comments continued. In or around September 2012, the supervisor of the 3C Team, James Stevens, told Selvato that he was ‘stalking her Fa-cebook pictures' because she had gone to school with his sister. JA 60. And, a couple
C. Termination
On December 5, 2012, Selvato began to feel severe pain in her neck and back. JA 62-63. As a result, Selvato took an over-the-counter painkiller, made an appointment with her doctor, and notified O’Connell that she would not be at work. Id. On December 10, 2012, while she was still on sick leave,
The next day, December 11, Selvato saw her doctor and received a prescription for a muscle relaxer, an anti-inflammatory, and a painkiller, as well as a doctor’s note that prohibited her from working until December 15, 2012. JA 64-65, 114, 359. Selva-to filled her prescription two days later, on December 13, 2012. JA 64.
On December 11, 2012, Director of Transportation Michael Lyles received a link from employee Warren Hill to a YouTube video clip showing Selvato attending the Kelly & Mike Show. JA 192-93, 196, 358. SEPTA’s sick leave and pay policy directs that ‘sick pay is the continuation or reduction of salary to an employee who is unable to work or perform the functions of his/her position due to injury or illness.1 Employees are ‘expected to remain at home, except for medical treatment.1 Violations of the sick leave policy are grounds for disciplinary action up to and including discharge. JA 115-22.
Selvato returned to work on December 16, 2012. On December 17, 2012, Lyles interviewed Selvato about her trip to New York City, and she admitted that she had gone to the Kelly & Mike show while she was on sick leave. JA 69, 134-36, 202-03. Selvato stated that the sick leave policy was ‘vague and unclear1 because there was no rule saying she could not go to a show. JA 74, 134-36. On December 20, 2012, Sel-vato was given written notice of the reasons for her imminent discharge. JA 111-13.
SEPTA terminated Selvato’s employment on January 9, 2013. JA 134-36.
II. LEGAL STANDARD
Summary judgment, pursuant to Federal Rule of Civil Procedure 56(a), is appropriate ‘where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.1 Alabama v. North Carolina,
III. DISCUSSION
Selvato alleges she was terminated by SEPTA because of her gender and in retaliation for engaging in protected Title VII activities, and that pervasive sexual discrimination created a hostile work environment.
A. Hostile Work Environment
1. Time Bar
To bring suit in Pennsylvania under Title VII, a claimant must first file a complaint with the EEOC within 300 days of the alleged unlawful employment practice. See Mandel v. M & Q Packaging Corp.,
In order to take advantage of the doctrine, Selvato must demonstrate that the acts of which she complaints represent a continuing violation, constituting ‘the same unlawful employment practice/ Mandel, 706. F.3d at 165, and that at least one of them occurred within the limitations period. Given the cautionary admonition from the Third Circuit that ‘[t]he reach of this doctrine is understandably narrow,‘Tearpock-Martini v. Borough of Shickshinny,
SEPTA contends that incidents of discrimination that purportedly occurred prior to September 2012 may not be considered because the continuing violation doctrine is inapplicable and they fall outside the relevant statute of limitations. Mtn. at 9-10. Selvato alleges she was subjected to numerous instances of harassment beginning in or around 2004 (a full discussion of which may be found supra at I.A.), and which continued unabated for approximately five years.
While it is clear that Selvato was subjected to frequent and often deplorable harassment between 2004 and 2009, she has failed to produce evidence of harassment for the three years immediately preceding the limitations period. Opp’n at 18. This significant lapse breaks the pattern of harassment necessary to establish a continuing violation. See e.g., Hamera v. Cnty. of Berks,
Given the three-year hiatus between discriminatory acts, the overwhelming majority of the harassment Selvato experienced cannot be said to have constituted ‘a pattern of actions which continue[d] into the applicable limitations period.' Mandel,
2. Prima Facie Case
Title VII prohibits sexual harassment that is sufficiently severe or pervasive to effectively alter the terms and conditions of employment. See Meritor Sav. Bank, FSB v. Vinson,
In deciding whether harassment was sufficiently severe or pervasive to create a hostile work environment, no single factor is dispositive: the totality of the circumstances are considered. See Harris v. Forklift Systems, Inc.,
Here, the Court again notes the significant three-year gap between the harassment Selvato experienced from 2004 to 2009 and the comments made by Stevens in 2012. See supra at III.A.1. Even if the acts outside the limitations period were aggregated, the considerable lapse in harassment is too long a period to constitute a ‘severe or pervasive1 hostile work environment. See e.g., Hamera,
Selvato’s claim is not saved by the comments made by Stevens in late 2012. Even assuming Stevens’ two non-threatening, non-physical comments were motivated by Selvato’s gender, the Court finds that they were not sufficiently severe or pervasive to establish a prima facie hostile work environment. See Sherrod v. Phila. Gas Works,
Stevens’ statement that he was stalking Selvato’s Facebook photos because she went to school with his sister is ‘subject to a non-[sexual] interpretation,1 and though his comment about Selvato’s blouse may have been humiliating to her, neither of Stevens’ remarks was ‘physically threatening. ...‘ Sherrod,
B. Gender Discrimination
Selvato farther contends that she was discriminated against on the basis of gender because SEPTA officials fired her for feigning illness while on sick leave—a charge she denies—even though male employees were not terminated for the- same conduct. Opp’n at 22-23. In Title VII cases, a plaintiff may establish disparate treatment discrimination ‘either [by] using direct evidence of intent to discriminate or using indirect evidence from which a court could infer intent to discriminate.Noe,
Selvato contends that her gender was a motivating factor in the decision to terminate her, and that her claim should be analyzed under the ‘mixed motives' test set forth in Price Waterhouse v. Hopkins,
Lyles, the Director of Transportation, was the primary decision-maker in this case, as it was he who discovered that Selvato had been attending a live television show while on paid sick leave, observed the video of her in the audience, interviewed her about the incident, and gave her a written notice of imminent discharge. JA 69, 134-36, 191-93, 196, 202, 358. Selvato’s appeal of that decision was denied by John Reynolds, the Senior Director of Transportation and Lyles’ supervisor. JA 134-36, 195. There is no record evidence, and no allegation put forth by Selvato, that either Lyles or Reynolds ever engaged in, or condoned, the sexual harassment she experienced. There are no statements or specific acts that could lead a reasonable factfin-der to conclude that her gender was a motivating factor in their decision. Accordingly, Selvato has failed to demonstrate that decision-makers placed substantial negative reliance on an illegitimate criterion in reaching the decision to terminate her.
Selvato also claims that she has presented sufficient indirect evidence to withstand summary judgment under the burden-shifting framework developed in McDonnell Douglas Corp. v. Green,
The requirements of the prima fa-cie case are ‘flexible', Pivirotto,
As to Dauria, Selvato offers (without elaboration) only his time cards from 2010-2012 as well as a ‘Performance Discussion' document, dated 2002, that admonished Dauria for leaving his work post for forty-five minutes. JA 291-94. While the performance document indicates that Dauria apparently held the same position as Selvato, his misconduct was in an entirely different category than Selvato’s; a forty-five minute unauthorized lunch is hardly comparable to an allegation that an employee feigned illness for several days while attending a live television show in a different state.
While Zappone engaged in misconduct similar to Selvato’s, by virtue of his position within SEPTA he is not an appropriate comparator. Selvato worked as a Transportation Manager in the Operations/Surface Division. JA 7, 84; Def. Facts ¶¶ 2-3. At the time of his retirement, Zap-pone was an Assistant Director of Maintenance in the Engineering, Maintenance and Construction Division. JA 138-42. See Wilcher v. Postmaster General,
Finally, as to Howley, Selvato has produced no evidence that he actually feigned illness, that SEPTA knew or suspected Howley feigned illness, or that any instances of misconduct by Howley were deliberately overlooked by SEPTA officials. Selvato’s subjective belief that How-ley engaged in similar misconduct cannot support an inference of discrimination. See Wilson v. Blockbuster, Inc.,
While comparator evidence is not necessary to establish a prima facie case, Selvato has failed to provide any other evidence of discriminatory animus. The two remarks made by Stevens in 2012 are insufficient not only because Stevens was not a decision-maker, but also because they were made weeks before her termination and there is no evidence that the decision-makers had any knowledge of Stevens’ comments. See Ezold v. Wolf, Block, Schorr and Solis-Cohen,
A plaintiff is unable to survive summary judgment if the evidence is insufficient to convince a reasonable factfinder to find all of the elements of the prima facie case. See Duffy v. Paper Magic Grp.,
C. Retaliation
The anti-retaliation provision of Title VII forbids employer actions that discriminate against an employee because she has ‘ ’made a charge, testified, assisted, or participated in’ a Title VII ’investigation, proceeding, or hearing.’ ‘ Burlington N. & Santa Fe Ry. Co. v. White,
SEPTA concedes that Selvato engaged in protected activity when she complained to SEPTA’s EEO Office in 2009 and 2012, and that her termination on January 9, 2013,
To succeed on her retaliation claim, Selvato must present evidence such as ‘a temporal proximity between the protected activity and the adverse action, antagonistic behavior on the part of the employer, inconsistencies in the employer’s articulated reasons for taking the adverse action, or any other evidence that supports an inference of retaliatory animus.' Reaves v. Pa. State Police,
Selvato made two complaints to SEPTA’s EEO office. The first, in 2009, has no plausible relationship to Selvato’s termination in 2012. There is no record evidence of antagonistic behavior in the years after the 2009 report, Selvato was later transferred to her desired work assignment after she made the complaint, and temporally, it is three years removed from the adverse employment action. Thus, the timing of events is not 'unusually suggestive of retaliatory motive.' Shaner v. Synthes,
The second complaint to the EEO office was made in November 2012, to Berman, after Stevens made the Facebook photos and blouse-petting comments to Selvato. JA 60-61, 176, 221-22. Thereafter, Selvato was issued a notice of imminent discharge in December 2012 and terminated in January 2013. Selvato asserts that she has demonstrated ‘repeated incidents of being subjected to retaliatory actions, .. evidence of animosity towards her by SEPTA’s management officials... [and] that the individuals she protested against and rejected their sexual harassment. . .were involved and influenced the disciplinary process.' Opp’n at 33. The record evidence does not support this claim.
There is no evidence, and Selvato does not allege, that Lyles held any animus towards her. It was Lyles who learned that Selvato had been attending a live television show while on paid sick leave, observed the video of her in the audience, interviewed her about the incident, and gave her a written notice of imminent discharge. JA 69,134-36,191-92, 202. There is no evidence that Berman, who took Selva-to’s EEO complaint, ever told Lyle of the complaint’s existence. Selvato points to a December 11, 2012, email from Berman as proof of Berman’s involvement in the alleged retaliation. However, Berman sent the email to a third party who did forward it to Lyles but did not do so until after Lyles had already discovered the Kelly & Mike- video, and she made no mention of Selvato’s EEO complaint in the email. JA 304.
While it is clear that Selvato had unpleasant interactions with some of her superiors over the years (Liberi, Berardi, etc.), none of these individuals have been linked to the alleged retaliatory action. Selvato’s only remaining evidence of a causal link, then, is the temporal proximity of her complaint in November 2012 to the adverse action that began in December 2012. Unless the timing is unusually suggestive of a retaliatory animus, ‘temporal proximity alone will be insufficient to establish the necessary causal connection. .. .‘Farrell v. Planters Lifesavers Co.,
Selvato strenuously maintains that she was not feigning illness, and that this represents a genuine dispute as to a material fact. Opp’n at 36. Whether or not Selvato was legitimately ill prior to being terminated, her subjective displeasure with the result of SEPTA’s investigation is, on its own, insufficient to demonstrate a causal link between her protected activities and the decision to terminate her. See Wilson v. Blockbuster, Inc.,
Selvato has failed to adduce sufficient evidence for a reasonable jury to conclude that she suffered an adverse employment action in retaliation for her participation in a protected activity. Accordingly, SEPTA’s motion for summary judgment shall be granted.
An appropriate order follows.
Notes
. If a party ‘fails to properly address another party's assertion of fact,' the court may consider the fact undisputed for purposes of the motion. Fed. R. Civ. P. 56(e).
. The parties agree that Howley’s statement implied that Selvato had engaged in oral sex with Berardi. Def. Facts ¶ 4; PL Facts ¶ 7.
. Selvato also sets forth a litany of complaints which do not on their face relate to her discrimination claims. In 2004, Selvato was informed by Chief D'Agostino that she was not permitted to use her mother’s bathroom while working, even though a male employee was permitted' to use his mother’s bathroom. JA 44-45. In or around 2006, Selvato complained that the seat inside of her work vehicle was broken and hurt her back. When she requested a new vehicle, she was denied. Selvato then had to walk for several days until the car was replaced. JA 17-20, 104. Also around 2006, unidentified Assistant Directors would not give Selvato the pin code necessary to use the copy machine, while other employees were given it. JA 47-48.
.In a separate letter to McKenzie, Selvato also stated that her supervisor, Assistant Director Kevin O'Connell, had reprimanded her for asking a question, that O’Connell had refused to train Selvato (or her female co-worker) to use a snow plow, and that a female coworker, Betty Ann Norman, was given overtime work even though Selvato was available and had more seniority. JA 99-100. This was also reflected in SEPTA's internal EEO Initial Contact Summary Sheet. JA 102-05.
. Though Selvato also had vacation and personal days available to use, she remained on sick leave for the entirety of December 5-12, 2012. JA 68.
. Selvato's claims regarding discrete discriminatory acts, made pursuant to the Pennsylvania Human Relations Act ('PHRA') and Title VII, were previously dismissed.
. Selvato objects to SEPTA's argument that many of the discriminatory acts are time-barred from consideration, arguing that the issue was previously decided in this Court’s Order on SEPTA’s Motion to Dismiss (ECF No. 12). In that Order, the Court denied SEPTA's motion with respect to the Title VII hostile work environment claim specifically because many of the allegations in Selvato’s complaint were undated. Based on reasonable inferences and accepting all facts as true, the Court inferred that acts occurred in a pattern sufficient to aggregate the acts into a hostile work environment claim. Order at n.2. Through the discovery process, however, Sel-vato was able to specify the dates at which events occurred. With this new chronology, SEPTA’s motion for summary judgment on this basis is appropriate.
.Neither party has offered a firm date of when Selvato filed her charge with EEOC; SEPTA assumes Selvato filed her charge on July 17, 2013, two days before SEPTA received a Notice of Charge of Discrimination from EEOC. Mtn. at 9-10; see JA 137. Using
. Dauria's last name is spelled variously as 'Dauri,' 'Duaria,' and 'Duari' in the parties' papers and the record evidence.
. SEPTA identifies the date as January 9, 2012 at several points throughout their brief, in what appears to be a typographical error.