Heiken v. Southwestern Energy

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

KEITH HEIKEN, :

Plaintiff : CIVIL ACTION NO. 3:18-693

v. : (JUDGE MANNION)

SOUTHWESTERN ENERGY and :

DAVID BOWMAN,

:

Defendants

:

MEMORANDUM

Pending before the court is the report and recommendation of

Magistrate Judge Martin C. Carlson which recommends that the motion for

summary judgment filed by defendant Southwestern Energy

(“Southwestern”) (Doc 37) be granted and the cross motions for summary

judgment filed by plaintiff and defendant Bowman (Doc. 31, Doc. 34

respectively) be dismissed as moot. (Doc. 61). The plaintiff has filed

objections to Judge Carlson’s report and recommendation. (Doc. 62). Based

upon the court’s review of the record, the report and recommendation of

Judge Carlson will be ADOPTED IN ITS ENTIRETY.

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. '636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to

the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.

2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, Asatisfy

itself that there is no clear error on the face of the record in order to accept

the recommendation.@ Fed. R. Civ. P. 72(b), advisory committee notes; see

also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469

(M.D.Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.

1987) (explaining judges should give some review to every report and

recommendation)). Nevertheless, whether timely objections are made or not,

the district court may accept, not accept, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge. 28 U.S.C.

'636(b)(1); Local Rule 72.31.

The plaintiff’s claims arise out of an incident wherein defendant

Bowman allegedly grabbed or poked the plaintiff in the buttocks while the

two were working for defendant Southwestern. The plaintiff filed a

harassment complaint with Southwestern about the incident. Southwestern

investigated the incident and disciplined defendant Bowman, who never

repeated the behavior thereafter. The plaintiff complained, however, that

defendant Bowman’s discipline should have been more severe.

Approximately two months after the plaintiff’s complaint of harassment, he

was terminated from his employment with Southwestern, with job

performance being stated as the reason. The plaintiff subsequently brought

this action against Southwestern alleging claims of sexual harassment, sex

discrimination and retaliation pursuant to Title VII of the Civil Rights Act. The

plaintiff also alleges a state law battery claim against defendant Bowman.

After the close of discovery, the parties filed and briefed the pending

motions for summary judgment. Judge Carlson then issued the instant report

and recommendation. In considering the plaintiff’s claims against defendant

Southwestern and Southwestern’s related motion for summary judgment,

Judge Carlson set forth the familiar standards for discrimination and

retaliation under Title VII. Applying the law to the facts of this case, Judge

Carlson determined that the plaintiff’s claims against Southwestern fail as a

matter of law.

While “entirely inappropriate,” Judge Carlson determined that the

plaintiff did not establish that the conduct alleged in this case was gender

based or sexually motivated. In order to show that he was subject to sexual

harassment that created a hostile work environment, Judge Carlson noted

that the plaintiff must show that he suffered intentional discrimination

because of his sex and the discrimination was sufficiently severe or

pervasive as to alter the conditions of his work environment. Bumbarger v.

New Enterprise Stone and Lime Co., Inc., 170 F.Supp.3d 801, 828 (E.D.Pa.

2016).

Initially, Judge Carlson found that the plaintiff had not set forth any

evidence to indicate that the conduct alleged occurred because of his

gender. In order to demonstrate that same-sex harassment was motivated

because of sex, Judge Carlson found that the plaintiff must establish that

defendant Bowman was motivated by sexual desire, he was expressing

general hostility to the presence of one sex in the workplace, or he was acting

to punish the plaintiff’s noncompliance with gender stereotypes. Bibby v.

Phila. Coca Cola Bottling Co., 360 F.3d 257, 264 (3d Cir. 2001). Judge

Carlson determined that the plaintiff had not brought forth any evidence or

argument to establish any of these factors. Instead, the plaintiff simply

argued that defendant Bowman grabbed or touched him near his buttocks,

and on this basis, it could be inferred that he was discriminated against

because of his sex. Judge Carlson outlined the case law which holds that

such behavior, while improper, does not, by itself, create an inference of sex-

based discrimination. (Doc. 61, pp. 17-18 (citations omitted)).

Further, citing to the standard outlined by the Third Circuit, as well as

a line of cases from courts within the Third Circuit applying that standard,

Judge Carlson found that the single incident of what appeared to be

inappropriate touching did not constitute severe or pervasive conduct to

support a hostile work environment claim.

Finally, even if the plaintiff could show that he was discriminated

against because of his sex and that the conduct complained of was severe

or pervasive, Judge Carlson found that the evidence showed that

Southwestern took prompt steps to remedy the harassment and that the

harassment did not occur again. Given the case law which holds that when

an employer’s response to a complaint of harassment stops the harassment,

there can be no employer liability under Title VII, and because

Southwestern’s remedial action was adequate, Judge Carlson found that it

could not be held liable under Title VII.

In a similar manner, Judge Carlson found, to the extent that the plaintiff

asserts that his employment was terminated because of his gender, his claim

fails as a matter of law. Here, Judge Carlson again found that the plaintiff

had not pointed to any evidence in the record to show that he was

discriminated against because of his sex. Moreover, the plaintiff conceded

that he was replaced by another male when he was terminated. While the

plaintiff argued that he would have been treated differently if he were a

female, Judge Carlson found that there was no evidence of any females who

were the subject of the same type of behavior, but were treated differently or

more favorably then the plaintiff, so as to constitute adequate comparator

evidence. As such, Judge Carlson found that the plaintiff had failed to

establish a prima facie case of sex discrimination.

In light of the foregoing, Judge Carlson has recommended that

judgment be entered in defendant Southwestern’s favor as a matter of law

on the plaintiff’s sexual harassment and sex discrimination claims under Title

VII. The plaintiff has not objected to Judge Carlson’s recommendation with

respect to these claims. Upon review, the court finds no clear error of record

and agrees with the sound reasoning which led Judge Carlson to his

conclusions as to these claims. As such, the report and recommendation will

be adopted with respect to the plaintiff’s sexual harassment and sex

discrimination claims against defendant Southwestern.

With respect to the plaintiff’s claim that he was retaliated against for

reporting the sexual harassment when he was terminated from his

employment, Judge Carlson found that, in order to state a prima facie claim

for retaliation, the plaintiff must show that he engaged in protected activity,

was subject to adverse action, and a causal connection between the

protected activity and the adverse employment action. Carvalho-Grevious v.

Delaware State Univ., 851 F.3d 249, 257 (3d Cir. 2017). In this case, there

is no dispute that the plaintiff engaged in protected activity when he reported

the harassment to his superiors and the Human Resources Department.

There is also no dispute that the plaintiff’s termination constitutes an adverse

employment action. However, Judge Carlson found that the plaintiff has not

met his burden to establish that his harassment complaint was the but-for

cause of his termination. To this extent, Judge Carlson pointed out that the

plaintiff had no direct evidence of discrimination. Relying on the plaintiff’s

testimony that he believed his harassment complaint was the reason for his

termination because of the timeline of his complaint to his termination, Judge

Carlson determined that the period of two months between the plaintiff’s

reporting of the harassment and his termination was not an unusually

suggestive temporal proximity and, standing alone, was insufficient to

establish causation. Because the plaintiff set forth no other evidence of

retaliatory animus in the two-month period at issue, Judge Carlson

concluded that he had failed to make a prima facie showing of retaliation.

The plaintiff’s objections center on Judge Carlson’s findings with

respect to his retaliation claim. Specifically, the plaintiff argues that he

engaged in two instances of protected activity. The first was the reporting of

the harassment on May 11, 2017, and the second was a complaint he made

after May 30, 2017 about the failure to sufficiently discipline defendant

Bowman for the harassment. He argues that he was terminated on June 27,

2017, less than one month after his complaint that defendant Bowman had

not sufficiently been disciplined. The plaintiff argues, therefore, that the

temporal proximity between his complaint that the discipline of defendant

Bowman was insufficient and his termination is unusually suggestive of

retaliation. The apparent flaw with the plaintiff’s argument is the fact that the

plaintiff himself testified that it was the harassment complaint that was the

cause of his termination, not his complaint that the discipline of defendant

Bowman was insufficient or for any other reason for that matter. (Doc. 39-1,

at 90). Considering the authority citied, the court agrees with the conclusion

of Judge Carlson that the time between the plaintiff's complaint of

harassment, which he himself testified was the sole cause of his termination,

and his termination is not unduly suggestive of retaliation.

Even where the time between the complaint and the adverse action is

not unduly suggestive, however, if the plaintiff can set forth other evidence

of retaliatory animus during the intervening time, causation can be

established. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 504 (3d Cir. 1997).

Here, Judge Carlson found that the plaintiff had not set forth any other

evidence of retaliatory animus in the intervening two-month period between

his harassment complaint and the time of his termination. Judge Carlson

pointed out that it was the plaintiff’s testimony that the sole cause of his

termination was the timeline between his complaint of harassment and his

termination. Judge Carlson provided that, with no evidentiary support, the

plaintiff asserted that he believes the defendants manufactured an

investigation into management during the intervening period in order to

create a pretext for his termination. Judge Carlson found these

unsubstantiated allegations insufficient at the motion for summary judgment

stage to show that his harassment complaint was the but-for cause of his

termination.

In his objections, the plaintiff argues that he suffered from an

intervening pattern of antagonism between the time of his second complaint

regarding the discipline of defendant Bowman to the time of his termination.

To this extent, he argues that he was accused of having a nefarious agenda

against defendant Bowman and was de facto investigated under the bogus

guise of a “cultural investigation” and found to be one of two leaders of a

partisan group in opposition to defendant Bowman. He argues that the

investigation had neither integrity nor methodology.

In considering the plaintiffs objections, again, the court considers the

plaintiff’s own testimony. That testimony was that his complaint of

harassment was the sole cause for his termination, not the investigation or

anything else. Moreover, regardless of his “belief” that the investigation was

manufactured, the plaintiff has provided no evidentiary support of this. The

court agrees with Judge Carlson, therefore, that the plaintiff has failed to

establish at this stage of the proceedings that his complaint was the but-for

cause of his termination.1 As such, the court will also adopt the

recommendation with respect to the plaintiff’s retaliation claim against

defendant Southwestern.

With the finding that defendant Southwestern is entitled to summary

judgment on the plaintiff’s federal claims, the court will further adopt Judge

Carlson’s recommendation that the court should decline to exercise

supplemental jurisdiction over the state law battery claim against defendant

Bowman. As such, the cross motions for summary judgment filed by plaintiff

and defendant Bowman will be dismissed as moot.

1 Because the court has found that the plaintiff has failed to establish

causation, the remainder of the plaintiff’s objections to the report and

recommendation of Judge Carlson need not be considered here in.

An appropriate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: March 18, 2021

18-693-01