DEAN v. PHILADELPHIA GAS WORKS

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSEPH DEAN,

Plaintiff,

CIVIL ACTION

v. NO. 19-4266

PHILADELPHIA GAS WORKS,

Defendant.

PAPPERT, J. June 28, 2021

MEMORANDUM

Joseph Dean sued Philadelphia Gas Works, his former employer, claiming that

PGW discriminated and retaliated against him in violation of Title VII of the Civil

Rights Act and the Pennsylvania Human Relations Act. He also alleges PGW subjected

him to a hostile work environment in violation of Title VII. PGW moves for summary

judgment on all claims. After thoroughly reviewing the Parties’ submissions and record

evidence, and holding oral argument, the Court grants the Motion in all respects.

I

A

PGW hired Dean, a white male, as a Field Services Helper in December of 2017.

(Pl.’s Statement of Undisputed Material Facts (“SUMF”) ¶ 1, ECF 43-2); (Def.’s SUMF

¶ 1, ECF 41-1.) Helper is an entry-level, unionized and twelve-month probationary

position. (May 27, 2021 Hr’g Tr. 5:21–6:10, 7:6–17, ECF 58); (Def.’s SUMF ¶¶ 3, 7).

Helpers assist more senior Field Services employees with their duties, which include

fixing gas leaks and other customer issues. See (May 27, 2021 Hr’g Tr. 7:1–17).

Helpers must earn a promotion to Field Service Cadet, a position that handles

service calls independently, to remain employed with PGW beyond their probationary

term. (Pl.’s Ex. 1, Dean Dep. Tr. 49:6–12, ECF 43-3)1; (Def.’s SUMF ¶ 8). According to

Dean, to be promoted a Helper must pass an Operator Qualification test required by

the Department of Transportation Pipeline Hazardous Materials Safety

Administration. (Pl.’s Ex. 1 at 49:13–20.) According to PGW, Helpers must both pass

the OQ test and successfully complete Cadet School. (Def.’s SUMF ¶ 9)2; (Def.’s Ex. F,

Def.’s Answer to Interrogatories 6, ECF 41-3.) Cadet School includes eight days of

classroom training during which Helpers are given quizzes worth fifty percent of their

overall school score. See (Def.’s Ex. F 9). After classroom training, Field Specialists

train Helpers in the field for at least fifteen days. (Id.) Helpers who struggle with field

work may receive three additional training days. (Id.) At the end of all training,

Helpers take a final examination worth the remaining fifty percent of their overall

score. (Id.) PGW claims Helpers must achieve an overall score of at least seventy to

1 Dean relies mostly, if not entirely, on his own deposition testimony to support his claims.

2 Dean disputes much of PGW’s Statement of Undisputed Material Facts, including paragraph

nine, arguing it is supported by testimony or documents generated by PGW employees who he says

are interested witnesses. See generally (Pl.’s Resp. to Def.’s SUMF, ECF 43-1). He argues the Court

must ignore all “interested witness” testimony that a jury would not be required to believe even if

the testimony is uncontradicted. (Id. at ¶ 5); (Pl.’s Resp. to Mot. for Summary Judgment 9–11, 15–

16, 18, 23, ECF 43-4). That is not the law, something Dean’s counsel acknowledged at oral

argument. See (Def.’s Reply 1–3, ECF 45); (May 27, 2021 Hr’g Tr. 82:12–83:3, 85:6–11, 87:17–20).

The Third Circuit Court of Appeals instructs that “in considering a motion for summary judgment

the court should believe uncontradicted testimony unless it is inherently implausible even if the

testimony is that of an interested witness.” Lauren W. v. DeFlaminis, 480 F.3d 259, 272 (3d Cir.

2007); see also Garcia v. Newtown Twp., 483 F. App’x 697, 699 n.3 (3d Cir. 2012) (“As we are

reviewing a grant of summary judgment, we recount the material facts in the light most favorable to

Garcia as the nonmoving party . . . . We do, however, consider credible evidence submitted by the

moving party that is essentially uncontradicted.”).

complete Cadet School “successfully.” (Def.’s Ex. L, Dean Training Report); (Def.’s Mot.

for Summary Judgment 6, ECF 41-2.)

B

Between June and August of 2018, before he began Cadet training, Dean

reported white co-worker Dylan Rutledge to a union representative and two Field

Operations Supervisors for making racist remarks about African Americans. (Pl.’s

SUMF ¶¶ 3–5.) Among other comments, at one point Rutledge called Dean a n*****

lover. (Pl.’s Ex. 1 at 39:12–18, 40:15–23.) PGW investigated Rutledge’s conduct,

including by interviewing Dean and other union employees, and fired Rutledge on

September 10 for using racial epithets. See (Pl.’s SUMF ¶¶ 7–9); (Def.’s Ex. X, Rutledge

Termination Ltr.). Dean believes Rutledge is PGW supervisor Gerard Gaydosh’s

nephew, (Pl.’s Ex. 1 at 97:4–6)3, and says after he reported Rutledge he was harassed

and intimidated at work, see (Def.’s June 15, 2021 Ltr. to Court, Dean Dep. Tr. 152:1–

10, ECF 61 (claiming Specialists told him “you don’t mess with Gerry Gaydosh’s

people”)). Before Dean participated in PGW’s investigation, union representatives

Joseph Cipparone and Michael Hudson told him “change your story or else you will

know what is good for you.” (Pl.’s Ex. 1 at 46:15–18); (Pl.’s SUMF ¶ 10.) After Rutledge

was fired, an “atmosphere of harassment and intimidation pervaded [Dean’s] entire

[Cadet] training.” (Pl.’s Resp. to Mot. for Summary Judgment 18.)

Dean began Cadet School the same day PGW fired Rutledge, and he claims on

his second day Cipparone and Hudson told his class he was a “rat and a snitch.” (Pl.’s

3 The record does not conclusively establish that Rutledge and Gaydosh have a familial

relationship. See (May 27, 2021 Hr’g Tr. 10:25–11:4, 20:18–25). One of Dean’s union representatives

also “heard” the two are related. See (Pl.’s June 15, 2021 Ltr. to Court, Hudson Dep. Tr. 43:3–10,

ECF 62-1).

SUMF ¶¶ 11, 13.) Specialists called Dean a rat and a snitch throughout his field

training, sometimes instead of answering his questions and once while he was

undergoing an evaluation. (Id. at ¶¶ 21–22.)4 Other employees also called him a rat

and a snitch throughout training and told him he was not going to make it. (Id. at

¶ 28.) Dean says he told a supervisor he was being harassed and retaliated against for

reporting Rutledge three or more times during Cadet School but the harassment

continued. (Pl.’s SUMF ¶¶ 24, 31); (Pl.’s Ex. 1 at 55:23–56:24, 60:16–19.) The

supervisor does not recall these reports. See (Def.’s Ex. O, Baldwin Dep. Tr. 26:4–10);

(Def.’s Ex. Z, Rohrer Investigation Summary Report).

Once during training, employees falsely accused Dean of having the answers to

the OQ test. (Pl.’s SUMF ¶ 25.) PGW labor relations met with Dean on September 21,

2018 because management received reports Dean was bragging about having the test

answers and claiming he was related to PGW CEO Craig White. See (Def.’s Ex. G,

McDonald Dep. Tr. 65:8–17, 66:10–12, 69:14–19). Dean was not disciplined for the OQ

test answer allegations, (Def.’s SUMF ¶¶ 16–17), but he claims that after the meeting

White walked up to him, told him he was a “disgrace to the white race” and walked

away. (Def.’s June 15, 2021 Ltr. to Court, Dean Dep. Tr. 134:10–135:9.) He did not

report White’s comment to anyone after it happened. (Def.’s June 15, 2021 Ltr. to

Court, Dean Dep. Tr. 135:16–19.)

C

Dean performed poorly in Cadet School. He failed several quizzes, received a

forty-eight on his final exam and achieved an overall Cadet School score of sixty-two.

4 At oral argument counsel claimed Dean was called a rat and a snitch during Cadet School

testing, but nothing in the record supports this. See (May 27, 2021 Hr’g Tr. 58:25–59:6, 90:12–16).

See (Pl.’s SUMF ¶ 14); (Def.’s SUMF ¶ 21); (Def.’s Ex. J, Dean OQ Examination

Transcript); (Def.’s Ex. K, Dean Fail Cadet School Exams); (Def.’s Ex. L, Dean Training

Rpt.). Dean says his exams “were administered under a cloud of harassment and

intimidation, which began on September 11, 2018,” and “were not graded impartially.”

(Pl.’s Resp. to Def.’s SUMF ¶¶ 19–20.) PGW points out the exams were multiple choice

or otherwise objective. (Def.’s SUMF ¶ 20); (May 27, 2021 Hr’g Tr. 9:5–11, 30:9–18); see

also (Def.’s Ex. K).

Dean fared no better in field training. He received the three additional training

days after Specialists repeatedly reported he was “not ready for the field” during his

first fifteen, though he says he received extra time only to make up testing he missed

while at his September 21 meeting with labor relations . See (Pl.’s Ex. 1 at 57:1–20);

(Def,’s Ex. H, Dean Termination Ltr.); (Def.’s Ex. L). After his training ended, a Field

Training Supervisor evaluated Dean on October 19 and concluded he “lacks the

judgment and aptitude required to safely perform the duties of a Field Service Cadet.”

(Def.’s Ex. M, Dean Field Evaluation.) Among other things, the Supervisor noted Dean

failed to locate or discover two gas leaks, which is a “main objective to maintain safety

for [employees] and for the customers.” See (id.); (May 27, 2021 Hr’g Tr. 9:20–22).

Notwithstanding his Cadet School performance, Dean believes he was promoted

to Cadet on October 15, 2018 because he passed his OQ test and claims on that day he

received a pay raise, a route to independently handle service calls, authorization to use

a PGW vehicle without supervision and a locker. See (Pl.’s SUMF ¶¶ 19, 35); (Pl.’s Ex.

1 at 75:2–13, 76:2–5, 164:5–165:2). His service card, the only record evidence of his

compensation, does not show a change in job title or pay raise in or around October of

2018. (Def.’s Ex. A, Dean Service Card); (May 27, 2021 Hr’g Tr. 68:13–15.) PGW says

Dean never received a promotion, and to the contrary after Dean’s field evaluation a

Manager arranged to assign him “filing and general clerical work” away from the field.

See (Def.’s Resp. to Pl.’s SUMF ¶ 19); (Def.’s Ex. N, Delgado Aff. ¶ 43.)5

D

Dean says he spoke on October 29 with the same supervisor to whom he

previously reported experiencing harassment and retaliation and the supervisor

recommended he contact Human Resources Senior Business Partner Mathew Rohrer.

(Pl.’s SUMF ¶ 33); (Pl.’s Ex. 1 at 60:20–61:1, 61:19–62:13, 74:3–8.) Dean called Rohrer

on October 30 around 8:00 or 9:00 a.m., and Rohrer interviewed him in person around

12:45 p.m. that day. (Pl.’s SUMF ¶ 32); (Pl.’s Ex. 1 at 62:5–22.) During the interview,

Dean told Rohrer union employees had been retaliating against him ever since he

reported Rutledge and he believed he was going to be fired because of the report. (Id. at

62:18–22); (Def.’s SUMF ¶ 37.)6 Dean also filled out a Complaint Intake Form, where

5 PGW included four affidavits in the summary judgment record and cites to each in its

Statement of Undisputed Material Facts. The Court has limited its consideration of the affidavits

because three aver the statements in them are “true and correct to the best of” the affiant’s

“knowledge, information and belief,” see (Def.’s Ex. N ¶ 66); (Def.’s Ex. Q, Smith Aff. ¶ 33); (Def.’s Ex.

Y, McDonald Aff. ¶ 30), which “renders the [affidavits] non-compliant with Rule 56(c)(4)’s

requirement that the allegations be based on personal knowledge with a showing of proper

foundation for the testimony.” Green v. Didio (In re Didio), 607 B.R. 804, 821 (Bankr. E.D. Pa. 2019)

(disregarding a “complaint/affidavit” in deciding summary judgment motion because affiant verified

allegations as “true and correct to the best of my knowledge, information and belief”); see also

Pellegrino v. McMillen Lumber Prods. Corp., 16 F. Supp. 2d 574, 585–86 (W.D. Pa. 1996)

(disregarding paragraph of affidavit made to “best of” affiant’s “knowledge, information and belief”

not based on personal knowledge and stating affidavit was “critically deficient” because it “d[id] not

purport to set forth statements made upon [affiant’s] own personal knowledge.”). Specifically, the

Court has considered only those statements in each affidavit that are clearly based upon the affiant’s

personal knowledge.

6 Dean objects to this paragraph of PGW’s Statement of Undisputed Facts because it relies in

part on Rohrer’s deposition testimony about his conversation with Dean, which Dean says is

hearsay. (Pl.’s Resp. to Def.’s SUMF ¶ 37.) Federal Rule of Evidence 801(d)(2)(A) “provides that

statements made by a party to an action and offered into evidence by an opposing party do not

he wrote that after he reported “someone who was racist and uncle is a big shot” he was

being called a rat and a snitch, told he would not make it and was once falsely accused

of having OQ test answers. (Pl.’s Ex. 1 at 72:22–73:10); (Def.’s Ex. T, Dean Complaint).

Dean was fired several hours after his interview. (Pl.’s Ex. 1 at 81:4–17); (Def.’s

SUMF ¶ 39.) PGW told Dean it was firing him because of his performance, (Pl.’s Ex. 1

at 67:14–15, 81:4–7, 81:15–17), and PGW says although the timing of Dean’s

termination aligned with his complaint it had decided to fire him before he complained,

see (Def.’s SUMF ¶¶ 27–29, 39); (Def.’s Mot. for Summary Judgment 1).

i

According to PGW’s Director of Corporate Labor Relations, all Helpers who do

not successfully pass Cadet School are terminated. (Def.’s Ex. G at 44:18–45:9.) Once

field services and labor relations receive information about employees’ Cadet School

performance, management arranges separate meetings with those who failed to inform

them about their performance and fire them. See (id. at 44:18–45:9, 45:13–46:25);

(Def.’s SUMF ¶ 27). After management learned Dean performed poorly on his exams

and during his field evaluation, the Director of Corporate Labor Relations, Senior Vice

President of Human Resources, Labor and Corporate Communications, Director of

Employee Relations, Development and Support Services, Manager of Labor Relations,

and Manager of Field Services Administration decided to terminate Dean. (Def.’s Ex.

G at 44:12–17.) They say their decision was because of his poor performance. See

(Def.’s Ex. G at 50:15–51:19); (Def.’s Ex. N ¶ 55); (Def’s Ex. Q, Smith Aff. ¶ 20).

constitute hearsay.” United States v. Reilly, 33 F.3d 1396 1411 (3d Cir. 1994) (citing Fed. R. Evid.

801(d)(2)(A)). Rohrer’s testimony is not hearsay because it concerns statements purportedly made by

Dean.

Similarly, a November 7, 2018 letter from PGW to Dean says he was fired “as a result

of [his] failure to successfully complete the required promotional training process

during [his] probationary period.” (Def.’s Ex. H.) None of the employees Dean claims

harassed him had any input into the termination decision. See (Def.’s Ex. G at 44:12–

17); (May 27, 2021 Hr’g Tr. 12:22–25). The Manager of Field Services Administration

called Dean’s union representative on October 29 to tell him management scheduled an

October 30 meeting to discuss Dean’s performance. (Def.’s SUMF ¶ 28); (Def.’s Ex. N

¶ 48.) And Rohrer knew, after Dean called him the morning of October 30 but before

he interviewed Dean at 12:45, that PGW intended to fire Dean that day. (Def.’s Ex. P,

Rohrer Dep. Tr. 89:5–23.)

ii

Dean rejects PGW’s explanation for his termination and believes the employees

who harassed him set him up for failure in order to fire him under the guise of poor

performance. See (Pl.’s Resp. to Def.’s SUMF ¶¶ 19–20); (Pl.’s Resp. to Mot. for

Summary Judgment 6–7, 11). He claims he had no idea on October 30 that his job

performance was at issue. (Pl.’s SUMF ¶ 34). PGW responds Dean should have been

aware his performance was unsatisfactory as early as September 11, 2018 when he

failed his first Cadet School quiz. (Def.’s Mot. for Summary Judgment 13.) It contends

Dean was aware he was a poor performer because he expressed concerns to a

Supervisor and a Manager, before October 30, that he would be fired. (Def.’s SUMF

¶¶ 25–26.)

E

Following Dean’s termination, Rohrer says he investigated every allegation in

Dean’s complaint. On November 30, 2018, he wrote Dean a letter saying he was unable

to substantiate Dean’s claim that Specialists made threatening or inappropriate

remarks to him. (Def.’s SUMF ¶ 52); (Def.’s Ex. P, Rohrer Dep. Tr. 103:21–104:6);

(Def.’s Ex. Z); (Def.’s Ex. AA, Rohrer Investigation Findings Ltr.) Rohrer also concluded

Dean was terminated because of his job performance. See (Def.’s Ex. AA). Dean says

that other than this letter, he did not hear from PGW management after his

termination. (Def.’s SUMF ¶ 55.)

F

Dean nonetheless believes PGW employees contacted or watched him after he

was fired. He claims Hudson called him on October 31, 2018 to say he got “what n*****

lovers deserve.” (Pl.’s SUMF ¶ 39.) He says he called Rohrer to report this incident

and Rohrer said he could not help him. See (Pl.’s Ex. 1 at 69:7–12); (Def.’s Ex. B, Dean

Dep. Tr. 86:18–21). Rohrer does not remember this call. (Def.’s Ex. P at 160:5–23.)

Dean believes Hudson called him again several times in June of 2019 because he

received calls from an unknown number and the caller would hang up when Dean said

“Michael Hudson.” (Def.’s Ex. B at 84:1–85:21.)

Dean also says PGW vehicles parked on or near his street twice in December of

2018 on occasions when he believes PGW had no nearby service calls, see, e.g., (Pl.’s

SUMF ¶¶ 42–43), though he did not verify this with all of his neighbors, (Pl.’s Ex. 1 at

92:3–93:8).7 He saw a PGW vehicle on his street again in March of 2019. See (Pl.’s

7 Dean also claims that on December 7, 2018 a white man in a PGW supervisor’s vehicle pulled

up next to him and “pointed his finger like a gun like he was going to shoot me.” (Pl.’s Ex. 1 at 89:4–

13.) Counsel did not mention these details in its letter to PGW, see generally (Def.’s Ex. CC), and no

further record evidence of this particular incident has been provided to the Court.

SUMF ¶ 44); (Def.’s SUMF ¶ 64).8 He further claims on May 29, 2019 he encountered

Gerard Gaydosh on the highway, who drove up next to him and pointed his finger and

hand at him. (Pl.’s SUMF ¶ 45); (Pl.’s Ex. 1 at 96:20–97:3.)9

G

After he was fired, Dean filed two EEOC charges against PGW. His first charge,

filed on February 21, 2019 alleged discrimination and retaliation during his

employment. (Pl.’s SUMF ¶ 38); (Def.’s Ex. DD, Dean First EEOC Charge.) His second,

filed on June 28, 2019 alleged retaliation based on his post-termination experiences.

(Pl.’s SUMF ¶ 48); (Def.’s Ex. HH, Dean Second EEOC Charge.)

Dean filed this lawsuit on September 17, 2019 (ECF 1) and amended his

Complaint on July 23, 2020 (ECF 34). In his amended pleading, Dean alleges the

harassment he experienced at PGW from when he reported Rutledge until he was fired

created a hostile work environment and both the harassment and his termination

constituted race-based discrimination and retaliation under Title VII and the PHRA.

See (Am. Compl. ¶¶ 92–110). He further claims the post-termination harassment and

surveillance he believes PGW employees subjected him to was retaliatory in violation of

Title VII and the PHRA. See (id. at ¶¶ 99–102, 107–110.)

PGW argues each of Dean’s claims fail as a matter of law because “[i]n reality,

Dean was simply a probationary employee who could not pass the objective job

8 PGW contends that on March 8, 2019, one of the days Dean saw a PGW vehicle on his block,

a PGW technician was working on a residential heater job nearby. See (Def.’s SUMF ¶ 65); (Def.’s

Ex. EE, March 8, 2019 Order Details). Dean disputes this and suggests PGW could have fabricated

this information. (Pl.’s Resp. to Def.’s SUMF ¶ 65.)

9 Gaydosh says he drove his car to work that day with only one detour to a 7-Eleven, and he

does not acknowledge having seen Dean. See generally (PGW Ex. GG, Gaydosh Aff. and GPS

Records.).

performance standards required for him to continue his employment with PGW past his

probationary period, and he was terminated along with other probationary employees

who failed to meet these standards.” (Def.’s Mot. for Summary Judgment 1.)

Additionally, Dean’s alleged post-termination experiences fail to sufficiently support a

retaliation claim. (Id. at 16–19.)

II

Summary judgment is proper “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a); see Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288 (3d

Cir. 2018). The movant bears the initial responsibility of informing the Court of the

basis for its motion and identifying those portions of the record which it believes

demonstrate the absence of a genuine issue of material fact. See Conoshenti v. Pub.

Serv. Elec. & Gas Co., 364 F.3d 135, 145 (3d Cir. 2004), holding modified by Erdman v.

Nationwide Ins. Co., 582 F.3d 500 (3d Cir. 2009) (quoting Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986)). A dispute is genuine “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986). A fact is “material” if it may affect the outcome of the suit

under the governing law. Id. at 248. A mere scintilla of evidence supporting the

nonmoving party will not suffice for a court to deny summary judgment. Id. at 252.

Rather, the nonmovant must “set forth specific facts showing there is a genuine issue

for trial.” Id. at 256.

At summary judgment, a court may consider any material in the record that may

be admissible at trial. See Fed. R. Civ. P. 56(c); Pamintuan v. Nanticoke Memorial

Hosp., 192 F.3d 378, 387–88 & n.13 (3d Cir. 1999). In doing so, a court “must view the

facts in the light most favorable to the nonmoving party and draw all inferences in that

party’s favor.” Prowel v. Wise Bus. Forms, 579 F.3d 285, 286 (3d Cir. 2009) (citation

and quotation marks omitted). But it need not credit “[u]nsupported assertions,

conclusory allegations, or mere suspicions.” Betts v. New Castle Youth Dev. Ctr., 621

F.3d 249, 252 (3d Cir. 2010). Nor may a court make credibility determinations or weigh

the evidence. See Parkell v. Danberg, 833 F.3d 313, 323 (3d Cir. 2016).

III

Title VII and the PHRA prohibit employers from discharging or discriminating

against employees with respect to the terms, conditions or privileges of employment

because of their race, color or national origin. See 42 U.S.C. § 2000e-2(a); 43 P.S.

§ 955(a). Analyses of Title VII and PHRA violations are “identical, as Pennsylvania

courts have construed the protections of the two acts interchangeably.” Huston v. P&G

Paper Prods. Corp., 568 F.3d 100, 104 n.2 (3d Cir. 2009) (quoting Weston v.

Pennsylvania, 251 F.3d 420, 426 n.3 (3d Cir. 2001)); see also Fogleman v. Mercy Hosp.,

Inc., 283 F.3d 561, 567 (3d Cir. 2002).

A

Discrimination claims under Title VII and the PHRA are governed by the burden

shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

See Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 252–53 (1981); see also Sarullo

v. United States Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003); Tourtellotte v. Eli Lilly

& Co., 636 F. App’x 831, 841 (3d Cir. 2016) (collecting cases). To establish a prima facie

case for discrimination against an employer, a plaintiff must show: (1) he belongs to a

protected class; (2) he was qualified for his position; (3) he suffered an adverse

employment action; and (4) the circumstances surrounding the adverse employment

action give rise to an inference of discrimination. See Burton v. Teleflex Inc., 707 F.3d

417, 426 (3d Cir. 2013).

Once a plaintiff establishes a prima facie case, “the burden of

production . . . shifts to the defendant to offer a legitimate non-discriminatory

[justification] for the adverse employment action.” Burton, 707 F.3d at 426 (quoting

Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009)). “This burden is ‘relatively

light’ and is satisfied if the employer provides evidence, which, if true, would permit a

conclusion that it took the adverse employment action for a non-discriminatory reason.”

Id. (citing Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006)); see also

Shellenberger v. Summit Bancorp, 318 F.3d 183, 189 (3d Cir. 2003) (at the summary

judgment stage “the defendant need not prove that the articulated reason actually

motivated the action”) (quoting Krouse v. American Sterilizer Co., 126 F.3d 494, 501 (3d

Cir. 1997)). If an employer provides a sufficient justification, the burden shifts back to

the plaintiff “to provide evidence from which a factfinder could reasonably infer that the

employer’s proffered justification is merely a pretext for discrimination.” Burton, 707

F.3d at 426. To show pretext, a plaintiff “must point to some evidence . . . from which a

factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate

reasons; or (2) believe that an invidious discriminatory reason was more likely than not

a motivating or determinative cause of the employer’s action.” Id. at 427 (quoting

Fuentes v. Perskie, 32 F.3d 763, 764 (3d Cir. 1994)); see also Fuentes, 32 F.3d at 765

(describing the standard for showing pretext as “plac[ing] a difficult burden on the

plaintiff”).

B

The McDonnell Douglas burden shifting framework also governs Title VII and

PHRA retaliation claims in the absence of direct evidence of retaliation. See Daniels,

779 F.3d at 192–93. To establish a prima facie case for retaliation, a plaintiff must

show (1) he engaged in protected activity; (2) the defendant took an adverse

employment action against him; and (3) there was a causal connection between his

protected activity and the adverse employment action. Moore v. City of Phila., 461 F.3d

331, 340–41 (3d Cir. 2006), as amended (Sept. 13, 2006).

At the prima facie stage, a plaintiff “must produce evidence ‘sufficient to raise

the inference that [his] protected activity was the likely reason for the adverse

[employment] action.” Cavalho-Grevious v. Del. State Univ., 851 F.3d 249, 259 (3d Cir.

2017) (quoting Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 177 (3d Cir.

1997) (emphasis added)). “[A] plaintiff may rely on ‘a broad array of evidence’ to

demonstrate the causal link between [the] protected activity and the adverse

[employment] action taken.” Id. at 260 (quoting Marra v. Phila. Hous. Auth., 497 F.3d

286, 302 (3d Cir. 2007). This may include evidence of “an employer’s inconsistent

explanation for taking an adverse employment action, . . . a pattern of

antagonism . . . or temporal proximity unusually suggestive of retaliatory motive.” Id.

(internal quotations and citations omitted).

If a plaintiff meets the prima facie case requirements, “the burden shifts to the

employer to advance a legitimate, non-retaliatory reason for its conduct.” Moore, 461

F.3d at 342 (citation and quotation marks omitted). If the employer satisfies that

burden, “the plaintiff must be able to convince the factfinder both that the employer’s

proffered explanation was false, and that retaliation was the real reason for the adverse

employment action.” Id. (citation and quotation marks omitted). “To survive a motion

for summary judgment in the employer’s favor, a plaintiff must produce some evidence

from which a jury could reasonably reach these conclusions.” Id. (citing Fuentes v.

Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). A plaintiff asserting a retaliation claim “has a

higher causal burden than a plaintiff asserting a claim of direct status-based

discrimination under Title VII” and must ultimately “prove that retaliatory animus was

the ‘but-for’ cause of the adverse employment action.” Carvalho-Grevious, 851 F.3d at

258 (citing Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)).

i

Post-employment retaliation claims are actionable under Title VII. See Robinson

v. Shell Oil Co., 519 U.S. 337, 346 (1997). The Third Circuit Court of Appeals has held

“a former employee c[an] state a claim for retaliation arising out of post-employment

conduct, so long as the retaliation affected the plaintiff’s future employment

opportunities.” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1301 n.15 (3d Cir. 1997);

see also Boandl v. Geithner, 752 F. Supp. 2d 540, 567 (E.D. Pa. 2010) (“In order to make

a claim for post-employment retaliation, a plaintiff must show that he engaged in

protected activity, that his former employer had influence over a subsequent

employment related decision, and that his former employer made a retaliatory use of

that influence to the detriment of the plaintiff’s employment opportunities.”) (citing

Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 200–01 (3d Cir. 1994)). For example,

“retaliation claims have been permitted ‘where the retaliation results in discharge from

a later job, a refusal to hire the plaintiff, or other professional or occupational harm.’”

Boandl, 120 F.3d at 1301 n.15 (quoting Charlton, 25 F.3d at 200).

C

Hostile work environment claims are not subject to the McDonnell Douglas

framework because “there can be no legitimate justification for a hostile work

environment.” Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 213 n.11 (3d Cir. 2017).

To succeed on a hostile work environment claim against an employer, a plaintiff must

establish (1) he suffered intentional discrimination because of his race, color or national

origin; (2) the discrimination was severe or pervasive; (3) the discrimination

detrimentally affected him; (4) the discrimination would detrimentally affect a

reasonable person in like circumstances; and (5) the existence of respondeat superior

liability. In re Tribune Media Co., 902 F.3d 384, 399 (3d Cir. 2018) (quoting Castleberry

v. STI Grp., 863 F.3d 259, 263 (3d Cir. 2017)).

Discriminatory conduct “must be extreme to amount to a change in the terms

and conditions of employment” to be considered severe or pervasive, Caver v. City of

Trenton, 420 F.3d 243, 262 (3d Cir. 2005) (quoting Faragher v. City of Boca Raton, 524

U.S. 775, 788 (1998)), and a work environment “must be objectively hostile, not just

hostile in the plaintiff’s view,” Greer v. Mondelez Glob., Inc., 590 F. App’x 170, 173 (3d

Cir. 2014). Courts consider the “totality of the circumstances” in determining whether

“the conduct at issue is sufficiently extreme” to support a hostile work environment

claim, which “‘may include the frequency of discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work performance.’” Caver v.

City of Trenton, 420 F.3d 243, 262–63 (3d Cir. 2005) (quoting Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 23 (1993)). “‘[O]ffhanded comments[] and isolated incidents (unless

extremely serious)’ are not sufficient to sustain a hostile work environment claim.” Id.

(quoting Faragher, 524 U.S. at 788).

Employer liability for conduct creating a hostile work environment varies based

on a plaintiff’s claims. Where a plaintiff claims a supervisor is responsible for

harassing conduct, an employer is “strictly liable for [the] supervisor’s actions ‘[i]f

the . . . harassment culminates in a tangible employment action.’” In re Tribune Media

Co., 902 F.3d at 399 (quoting Vance v. Ball State Univ., 570 U.S. 421, 424 (2013)). A

“tangible employment action” is “a significant change in employment status, such as

hiring, firing, failing to promote, reassign[ing] with significantly different

responsibilities, or a decision causing a significant change in benefits.” Id. at 399–400

(citation and quotation marks omitted) (alteration in original). “[I]f no tangible

employment action is taken,” an employer may escape liability for a supervisor’s

conduct “by establishing, as an affirmative defense, that (1) the employer exercised

reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff

unreasonably failed to take advantage of the preventive or corrective opportunities that

the employer provided.” Vance, 570 U.S. at 424 (citations omitted).

Where a plaintiff claims a co-worker is responsible for harassing conduct,

“employer liability . . . exists only if [(1)] the employer failed to provide a reasonable

avenue for complaint or . . . [(2)] the employer knew or should have known of the

harassment and failed to take prompt and appropriate remedial action.” Tribune, 902

F.3d at 400 (quoting Huston, 568 F.3d at 104). An employer “knew or should have

known about . . . harassment if ‘management-level employees had actual or

constructive knowledge about the existence of a . . . hostile environment.’” Huston, 568

F.3d at 105 (quoting Andrews v. City of Phila., 895 F.2d 1469, 1486 (3d Cir. 1990)

(emphasis removed)). An employer is considered to have constructive notice of a hostile

work environment “where an employee provides management-level personnel with

enough information to raise a probability of . . . harassment in the mind of a reasonable

employer.” Johnson-Harris v. AmQuip Cranes Rental, LLC, No. 14-767, 2015 WL

4113542, at *10 (E.D. Pa. July 8, 2015) (quoting Kunin v. Sears Roebuck & Co, 175 F.3d

289, 294 (3d Cir. 1999)).

IV

A

PGW argues Dean cannot establish a prima facie case for his discrimination

claim because even though he was subjected to an adverse employment action when he

was fired, he cannot show he was qualified to remain employed with PGW. (Def.’s Mot.

for Summary Judgment 6.) Dean understood he had to become a Cadet to keep his job

but he failed to meet the requirements to do so because he did not successfully complete

Cadet School. See (id. at 6–7 (“All Field Service Helpers who do not successfully

complete Cadet School are terminated.”)); (Pl.’s Ex. 1 at 49:2–12). PGW also contends

Dean cannot show his termination occurred under circumstances that could give rise to

an inference of discrimination. (Def.’s Mot. for Summary Judgment 6–8.) Dean’s

termination “was consistent with the collectively bargained requirement that he

successfully complete Cadet School,” and Dean cannot point to any evidence that

similarly situated individuals outside of his protected class were treated differently.

(Id. at 8.) In fact, the evidence shows one of Dean’s African American Cadet School

classmates was also fired for poor Cadet School performance. (Def.’s Mot. for Summary

Judgment 8); see also (Def.’s Ex. S, Scott Termination Ltr.).

Dean responds that an “atmosphere of harassment and intimidation pervaded”

his Cadet School examinations and training, but regardless he “was plainly qualified to

remain employed” because after he took his exams he was allowed to make service calls

and use a PGW vehicle independently. (Pl.’s Resp. to Mot. for Summary Judgment 13.)

Additionally, because the record shows he was harassed and intimidated beginning

with his reporting Rutledge and continuing through Cadet School, a jury could infer

from the timeline of events that his exams “were not fairly administered and that [his]

October 2018 termination had been maneuvered . . . to get rid of a trouble maker.” (Id.

at 16–17.)

i

The record is ambiguous as to whether or not Dean was qualified to remain

employed in October of 2018. As an initial matter, the Parties assume without

explanation that for Dean to succeed on a discrimination claim he would have to show

he was qualified to be a Cadet, see (Def.’s Mot. for Summary Judgment 6–9); (Pl.’s Resp.

to Mot. for Summary Judgment 11–20), even though his twelve-month probationary

period as a Helper had not expired. The evidence does not show that PGW forces

Helpers up or out before the end of their probationary term or that Helpers get only one

bite of the apple for promotion during their probationary period.

Even if Dean has to show he was qualified to be a Cadet, his qualification for

that role remains disputed. Dean’s position that he was qualified because he passed his

OQ test and received an independent route assignment is uncorroborated. But PGW’s

claim that qualified individuals are solely those who pass the OQ test and complete

Cadet School with an overall exam score of seventy and satisfactory field performance

is supported only by documents and testimony that post-date Dean’s termination. See

(Def.’s June 15, 2021 Ltr. to Court 2–3, ECF 61 (acknowledging record evidence of

criteria for Cadet promotion consists of answers to interrogatories, termination letters

dated November 7, 2018 and affidavits created for submission to the EEOC and signed

in April of 2019)). Viewing the evidence in the light most favorable to Dean, the Court

cannot conclusively determine Dean’s qualification for the Cadet role.

No reasonable juror, however, could infer Dean was fired because of his race.

See Sarullo v. United States Postal Serv., 352 F.3d 789, 798 (3d Cir. 2003) (“The central

focus of the prima facie case is always whether the employer is treating some people

less favorably than others because of their race, color, religion, sex, or national origin.”)

(internal quotations and citation omitted). Notably, Dean fails to attribute most of the

harassment or intimidation he experienced to his race, and instead suggests employees

treated him poorly because they thought he was a rat. The racially-charged comments

Dean relies on bore no apparent relation to his termination. Rutledge was fired more

than one month before Dean after he allegedly called Dean a n***** lover, and Hudson

purportedly used this expression after Dean’s termination. Moreover, the record does

not show White was involved in Dean’s termination. And because Dean did not report

White’s “disgrace to the white race” comment to anyone, there is no evidence indicating

that anyone involved in the decision to fire Dean was aware of the comment or believed

White felt that way about Dean.

Further, the evidence shows PGW fired Dean approximately two weeks after he

finished Cadet School and shortly after management learned he scored a forty-eight on

his final exam, a sixty-two overall and received a field evaluation in which a

Supervisor, who did not at the time know Dean had any involvement in Rutledge’s

termination, see (May 27, 2021 Hr’g Tr. 13:19–14:2); (Def.’s SUMF ¶ 54); (Def.’s Ex. F

11–12), concluded he lacked the judgment and aptitude to safely perform a Cadet’s job.

None of the employees who purportedly harassed or intimidated Dean had any

involvement in PGW’s decision to fire him.10 See Walden v. Ga.-Pac. Corp., 126 F.3d

506, 521 (3d Cir. 1997) (“We have generally held that comments by those individuals

outside the decisionmaking chain are stray remarks, which, standing alone, are

inadequate to support an inference of discrimination.”). And three days after Dean’s

termination, PGW fired an individual outside of Dean’s protected class for his poor

performance during Cadet School as well.11 The evidence shows no connection between

Dean’s termination and his race, and Dean cannot establish the fourth element of his

prima facie case.

ii

Even if Dean could make out his prima facie case, his discrimination claim fails.

PGW’s representation that it fired Dean because of his performance record, which

10 At oral argument Dean’s counsel stated he believes Gerard Gaydosh was involved in PGW’s

decision to fire Dean, (May 27, 2021 Hr’g Tr. 50:2–15), but no record evidence supports his belief.

11 Dean claims the circumstances surrounding his classmate’s termination for poor

performance have no similarity to his purported poor performance and termination, but again, there

is no evidentiary support for this claim. See (Pl.’s Resp. to Mot. for Summary Judgment 16–17).

includes failures of objective exams and failures to identify and locate gas leaks, is if

true a legitimate, nondiscriminatory explanation for Dean’s termination. See (Def.’s

Mot. for Summary Judgment 6–9). Dean fails to point to any evidence from which a

jury could conclude this reason is pretextual. First, there is no evidence to suggest

invidious discrimination was likely a motivating or determinative factor in Dean’s

termination because nothing in the record connects Dean’s termination to his race.

Again, a Helper outside of Dean’s protected class was similarly fired for poor

performance. And according to PGW, no other union employee, white or black, who

participated in the Rutledge investigation has been terminated. See (Def.’s SUMF

¶ 50.) Dean does not dispute this claim. Second, the record provides no basis for a

factfinder to disbelieve PGW’s reason for firing Dean because even though Dean

complains about the circumstances under which he was tested and trained, he does not

dispute the overall Cadet School score he received or the content of his field evaluation.

Dean argues a jury could conclude PGW’s explanation for his termination is

pretextual because “the progression of events . . . from when [he] complained about co-

worker Rutledge’s racially-offensive conduct . . . which in turn led to public harassment

and intimidation . . . and culminated in [Dean’s] termination” suggest his termination

“was just a further and final act of discrimination and retaliation.” (Pl.’s Resp. to Mot.

for Summary Judgment 19–20.) But this “progression of events,” which purportedly

occurred over at least a four-month period, see (id. at 19), still fails to connect PGW’s

decision to terminate him to any discriminatory animus. Moreover, it does not change

the performance information PGW management received before it decided to fire Dean.

B

i

Dean’s retaliation claims also fail. With respect to his claims alleging retaliation

during his employment and through his termination, the Parties agree that before he

was fired Dean engaged in two protected activities: (1) his participation in PGW’s

Rutledge investigation and (2) his October 30 human resources complaint. See (Def.’s

Mot. for Summary Judgment 11); (Pl.’s Resp. to Mot. for Summary Judgment 20). They

further agree Dean’s termination was an adverse employment action. See (Def.’s Mot.

for Summary Judgment 11–12); (Pl.’s Resp. to Mot. for Summary Judgment 20). But

PGW argues even though Dean can establish the first two elements of his prima facie

case, he cannot establish the third element because there is no record evidence of a

causal connection between his engagement in protected activity and his termination. It

reiterates that even if Dean can demonstrate a prima facie case, the evidence shows its

sole reason for firing Dean was his performance record.

Because the record does not show how the conduct about which Dean complained

on October 30 was race-related, it is unclear whether Dean’s October 30 complaint

constituted protected activity. See, e.g., Connelly v. Lane Constr. Corp., 809 F.3d 780,

792 n.10 (3d Cir. 2016) (“To be protected from retaliation under Title VII, [a] protected

activity must relate to employment discrimination charges brought under that statute,

implicating ‘discrimination on the basis of race, color, religion, sex, or national origin.’”)

(quoting Slagle v. Cty. of Clarion, 435 F.3d 262, 268 (3d Cir. 2006); Gharzouzi v.

Northwestern Human Servs. Of Pa., 225 F. Supp. 514, 540 (E.D. Pa. 2002) (“[A] general

complaint of unfair treatment does not translate into a charge of illegal discrimination,

and it is not protected conduct under Title VII”) (citing Barber v. CSX Distrib. Servs., 68

F.3d 694, 701–02 (3d Cir. 1995)) But assuming, arguendo, it is protected activity, a

reasonable factfinder may be able to infer a causal connection between the complaint

and his termination. The passage of mere hours between an employee’s engagement in

a protected activity and an adverse employment action can undoubtedly be unduly

suggestive of a causal connection between both events. See, e.g., Lichtenstein v. Univ. of

Pittsburgh, 691 F.3d 294, 307 (3d Cir. 2012) (seven days unduly suggestive); Jalil v.

Avdel Corp., 873 F.2d 71, 708 (3d Cir. 1989) (two days); cf. Parish v. UPMC Univ.

Health Ctr. of Pittsburgh, 373 F. Supp. 3d 608, 636 (W.D. Pa. 2019) (“unduly suggestive

temporal proximity usually falls within periods of days or weeks”).12

Nonetheless, for the reasons explained in Section IV.A.i, PGW has articulated a

legitimate, non-retaliatory and performance-based reason for terminating Dean that he

cannot show to be pretextual. And Dean cannot show he would not have been fired but-

for his October 30 complaint. The uncontradicted evidence shows PGW management

received Dean’s Cadet School performance information before October 30, found it

unsatisfactory and planned an October 30 meeting to discuss this with Dean before he

ever complained to human resources. See Lauren W. v. DeFlaminis, 480 F.3d 259, 271

12 Dean has not produced evidence sufficient to raise an inference that his participation in the

Rutledge investigation was the likely reason he was fired. The several month period between Dean’s

participation in the Rutledge investigation and his termination is not unduly suggestive of a causal

connection between both events. See, e.g., LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d

217, 233 (3d Cir. 2007) (“Although there is no bright line rule as to what constitutes unduly

suggestive temporal proximity, a gap of three months between the protected activity and the adverse

action, without more, cannot create an inference of causation and defeat summary judgment.”)

Moreover, the evidence does not suggest Dean’s termination was driven by retaliatory animus after

Dean’s report about Rutledge’s conduct. Again, no one involved in PGW’s decision to fire Dean is

alleged to have been involved in Dean’s harassment or intimidation after he reported Rutledge.

Other white and black union employees reported Rutledge engaged in racially offensive conduct

during PGW’s investigation and none have been fired.

(3d Cir. 2007); cf. Downs v. Locke, No. 18-4529, 2020 WL 4584003, at *5 (E.D. Pa. Aug.

10, 2020) (finding plaintiffs’ “simple denial” of fact to which defense witnesses testified

“insufficient to create a genuine issue of material fact”). The evidence also shows

Rohrer was not part of the decision to fire Dean, and he knew before he interviewed

Dean on October 30 that PGW planned to fire Dean that day. Management employees

who decided Dean should be terminated and the letter management sent Dean after his

termination say he was fired for unsatisfactory Cadet School performance. The letter

PGW sent Dean one week after his termination says the same.

ii

With respect to Dean’s post-termination retaliation claims, even assuming each

of the post-termination events Dean alleges occurred exactly how he describes them, he

does not claim, and the evidence does not demonstrate, that any of them affected his

future employment opportunities. See Boandl, 752 F. Supp. 2d at 568 (granting

summary judgment in favor of employer on post-employment retaliation claim where

plaintiff “failed to allege a post-employment adverse action that caused harm to his

employment opportunities”); cf. Hare v. Potter, 549 F. Supp. 2d 688, 697 (E.D. Pa. 2007)

(denying request for equitable relief for post-employment retaliatory conduct and

explaining “because defendant’s alleged actions do not affect plaintiff’s ability to seek

new employment, plaintiff has failed to prove how defendant’s actions constitute

continued discrimination under Title VII”). Dean cannot succeed on his post-

termination retaliation claims merely by relying on events that upset him. See Lin v.

Rohm & Haas Co., 301 F. Supp. 2d 403, 405 (E.D. Pa. 2004) (“Title VII proscribes

retaliatory post-employment conduct that relates to an employment relationship, not

‘conduct in general which the former employee finds objectionable.’”) (quoting Nelson v.

Upsala College, 51 F.3d 383, 388 (3d Cir. 1995)).

C

Dean’s hostile work environment claim fails too. As an initial matter, Dean

cannot show he was subjected to severe or pervasive intentional discrimination because

of his race. Again, there is nothing in the record showing the “rat” or “snitch” name-

calling to which he was purportedly subjected or the false accusation against him

regarding OQ test answers were race-based. Even if they were, that conduct “is not

enough for a trier of fact to conclude that discriminatory conduct in the workplace

amounted to a change in the terms and conditions of [Dean’s] employment.” Woodard

v. PHB Die Casting, 255 App’x 608, 610 (3d Cir. 2007) (per curiam); cf. id. (KKK-related

graffiti in office bathroom for over three months and numerous racially insensitive

comments directed at plaintiff not severe or pervasive); McGlone v. Philadelphia Gas

Works, No. 15-3262, 2017 WL 659926, at *14 (E.D. Pa. Jan. 19, 2017) (concluding

evidence of repeated disability-related name-calling would be “insufficient, as a matter

of law, to make out a claim for a hostile work environment”).

With respect to the race-related conduct Dean alleges, Rutledge’s n***** lover

remark appears to have been an “offhand comment” insufficient to amount to a

discriminatory change in the terms and conditions of Dean’s employment. See

Faragher, 524 U.S. at 788; see also King v. City of Phila., 66 F. App’x 300, 305 (3d Cir.

2003) (“isolated and sporadic incidents” of plaintiff being subjected to a racial epithet,

physically pushed and threatened about his work record not severe or pervasive);

Davidson v. FMC Techs., Inc., No. 4:15-cv-00756, 2016 WL 3944765, at *7 (S.D. Tex.

July 7, 2016) (supervisor’s one-time use of term “n***** lover” not sufficiently severe or

pervasive to warrant Title VII liability). White’s “disgrace to the white race” comment

amounts to the same. See Obotetukudo v. Clarion Univ. of Pa., No. 13-0639, 2015 WL

1524460, at *12 (W.D. Pa. April 2, 2015) (finding plaintiff professor “fail[ed] to allege

the type of ‘severe or pervasive conduct’ that is actionable as a hostile work

environment under Title VII” where he claimed college dean called him a disgrace to

his race and ethnicity and fellow professor called him “short as an ape”). Because

Rutledge was fired for his racial remarks and no one knew about White’s, the record

lacks any evidence that either affected Dean’s employment or work performance.

Dean also cannot demonstrate a basis for employer liability, at least as to

Rutledge and White’s comments. PGW provided a “reasonable avenue for complaint”

about Rutledge, Dean’s non-supervisory co-worker, which Dean utilized when he

reported Rutledge’s conduct to supervisors and to which management promptly

responded by investigating Rutledge and subsequently firing him. See Felder v. Penn

Mfg. Indus., 303 F.R.D. 241, 244 (E.D. Pa. 2014) (“an employer may be directly liable

for non-supervisory co-worker . . . harassment only if the employer was negligent in

failing to discover the co-worker harassment or in responding to a report of such

harassment”) (quoting Huston, 568 F.3d at 104–05). White’s comment did not effect “a

significant change in [Dean’s] employment status,” so PGW cannot be held strictly

liable for it, see Tribune, 902 F.3d at 399 (quoting Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 761 (1998)). Moreover, since Dean never took advantage of opportunities to

report his encounter with White to anyone, no evidence shows PGW management had

an opportunity to respond to it.13

PGW’s Motion is granted with respect to each of Dean’s claims against it. An

appropriate Order follows.

BY THE COURT:

_/_s_/_ G__e_r_a_l_d_ _J_._ P__a_p_p__e_r_t_ _

GERALD J. PAPPERT, J.

13 PGW argues Dean cannot establish a basis for employer liability for the harassing conduct

he faced in Cadet School because management did not know about this conduct until after they

decided to fire Dean. See (Def.’s Mot. for Summary Judgment 23–24); (May 27, 2021 Hr’g Tr. 19:6–

18.) This, however, is a disputed fact. Dean claims he reported Cadet School harassment to a

supervisor three or more times during school, and PGW’s only evidence this did not happen is the

supervisor’s testimony that he does not remember it. Regardless, because Dean has not

demonstrated he was subjected to severe or pervasive discriminatory conduct, this issue is not

material.

Dean also claims the Field Training Supervisor who evaluated him knew he was being

harassed and intimidated during Cadet School, but he cites no record evidence to support this. See

(Pl.’s Resp. to Mot. for Summary Judgment 28–29). At oral argument, counsel explained Dean’s only

evidence for this belief is a union representative’s statement that “everyone kn[e]w[]” Dean was

being harassed because “Dean is a loudmouth.” (May 27, 2021 Hr’g Tr. 60:24–61:12.) If this

statement exists in the record, it has not been provided to the Court. In any event, it is obviously

insufficient.