# Roman v. Geisinger Wyoming Valley Medical Center

> District Court, M.D. Pennsylvania · March 31, 2022

URL: https://www.frixlaw.com/law-library/cases/10411559

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 31, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10411559

## How later opinions describe it (automated extraction)

- holding that “the Supreme Court has made clear that ‘Title VII retaliation claims must be proved according to traditional principles of but-for causation.’”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

D EBRA ROMAN, :

Plaintiff : CIVIL ACTION NO. 3:20-45

v. : (JUDGE MANNION)

GEISINGER W.V. MEDICAL :
C ENTER and MARIA CUMBO,
:
Defendants

MEMORANDUM
Pending before the court is the motion for summary judgment, pursuant
to Fed.R.Civ.P. 56, filed by defendants Geisinger Wyoming Valley Medical
Center (hereinafter, “Geisinger”) and Marie Cumbo (collectively
“defendants”), (Doc. 33), with respect to the remaining federal and state law
claims of retaliation against Geisinger, and her state law aiding and abetting
retaliation claim against Cumbo, raised in Counts I & III, respectively, of the
amended complaint, (Doc. 11), filed by plaintiff Debra Roman. Specifically,
plaintiff claims that after she reported racism against patients, including
Blacks and Latinos, as well as against non-English speaking patients by her
co-workers to her former employer, Geisinger, defendants retaliated against
her and eventually terminated her in violation of Title VII of the Civil Rights
Act (“Title VII”), 42 U.S.C. §2000e, and the Pennsylvania Human Relations
Act (“PHRA”), 43 P.S. §951, et seq., Count I. In Count III, plaintiff alleges that

Cumbo, her former supervisor, aided and abetted Geisinger when it
retaliated against her for “complaining about racial, national origin
discrimination/hostile work environment”, in violation of §955(e) of the PHRA.
In their motion, defendants argue that Geisinger is entitled to judgment

as a matter of law with respect to the plaintiff’s remaining retaliation claims
since plaintiff cannot establish a prima facie case of retaliation and retaliatory
hostile work environment. Defendants also argue that Combo cannot be

found liable as aiding and abetting retaliation under §955(e) of the PHRA as
a matter of law since plaintiff failed to establish that Geisinger retaliated
against her.
As discussed below, the court will GRANT defendants’ motion for

summary judgment, (Doc. 33), with respect to the plaintiff’s remaining claims,
(Counts I and III), in her amended complaint, (Doc. 11), against Geisinger
and Cumbo. JUDGMENT will be entered in favor of the defendants and

against the plaintiff.
I. BACKGROUND1
In her amended complaint filed on March 11, 2020, (Doc. 11), through
counsel, in this Title VII and PHRA retaliation case, plaintiff alleges she

worked for Geisinger as a Radiation Therapist, and in the Spring of 2019,
she reported the above stated discriminatory conduct to her employer. She
alleges that after Geisinger investigated her report, she was retaliated

against by its employees and harassed by her co-workers, including Cumbo.
Plaintiff also alleges that she was “forced, as a condition of employment,” to
undergo psychological counseling. Subsequently, plaintiff alleges that she
received various reprimands, disciplines, and a lower performance

evaluation, that culminated when Geisinger terminated her employment on
June 13, 2019.
Defendants filed an answer with affirmative defenses to the amended

complaint on April 7, 2021. (Doc. 28)
Discovery was then conducted and it has now been completed.
On June 30, 2021, defendants jointly filed their motion for summary
judgment, (Doc. 33), with their statement of facts and Exhibits, as well as

1The court dismissed the plaintiff’s state law claim of invasion of privacy
against both defendants raised in Count II of the amended complaint on
March 29, 2021. (Docs. 26 & 27).
their brief in support. (Docs. 34 & 35). After being granted an extension of
time, on July 31, 2021, plaintiff filed her brief in opposition to defendants’

motion. (Doc. 43). Plaintiff also filed her response to defendants’ statement
of facts and Exhibits. (Docs. 38, 40-42, 44). Included as an Exhibit, (Doc. 38),
is a CD of the audio transcript of plaintiff’s appeal for unemployment
compensation. Defendants filed a reply brief on August 16, 2021. (Doc. 46).

The court has jurisdiction over this case pursuant to 28 U.S.C. §1331
because plaintiff avers violations of Title VII. The court can exercise
supplemental jurisdiction over her PHRA state law retaliation claim under 28

U.S.C. §1337. Venue is appropriate in this court since the alleged unlawful
conduct occurred in this district and all parties are located here. See 28
U.S.C. §1391.

II. MATERIAL FACTS2

2The court only states the relevant material facts that are supported by
citation to the record pursuant to Local Rule 56.1, M.D. PA. Also, legal
conclusions and argument are not included. A material fact is one that “might
affect the outcome of the suit under the governing law....” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Also,
since the parties cite to the record to support their material facts and
responses thereto, the court does not repeat all of the citations of facts. The
court also notes that it does not consider plaintiff’s citations to and reliance
on uncorroborated hearsay, including plaintiff’s citations to her journal entries
as well as her alleged statements to a therapist, (Doc. 44), particularly since
Plaintiff, who is a Registered Radiation Therapist, began working for
Geisinger in about November of 2007. As a Geisinger Staff Radiation

she relies heavily upon her journal to dispute the defendants’ facts supported
by the record and to offer as proof that defendants retaliated against her. As
defendants note, (Doc. 46 at 6 n. 1), plaintiff’s “therapist was not deposed
and there is no other evidence to support these statements.” Similarly, the
court will not consider Cumbo’s notes. (Doc. 34-1, Ex. F). Hearsay
statements not capable of being admissible at trial cannot be considered on
a motion for summary judgment. See Michaux v. Temas, 2020 WL 3799755,
*8-11 (W.D. Pa. July 7, 2020) (court held that journal of plaintiffs’ decedent
was not admissible under any hearsay exception and that it would not be
considered in ruling on defendants’ summary judgment motion, and that
even if it was admissible under an exception, the court would exclude the
journal under Rule 403) (citations omitted). Here, plaintiff is offering her
journal as proof that defendants retaliated against her and defendants are
offering Cumbo’s notes as proof that no retaliation occurred. As such, these
documents containing out of court statements offered to prove and disprove
plaintiff’s claims they are clearly hearsay and will not be considered.
The court also notes that it will consider the Affidavits of Robert
Konopke and Cumbo, (Doc. 34-1, Exs. A-B), contrary to plaintiff’s repeated
requests to disregard them as “interested witnesses”, since Hill v. City of
Scranton, 411 F.3d 118, 129 (3d Cir. 2005), cited by plaintiff no longer
supports her position. The Third Circuit subsequently limited Hill and held
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, 271 (3d Cir. 2007). The court finds that neither Cumbo’s nor
Konopke’s Affidavits are “inherently implausible” since they are supported by
evidence in the record. Further, since the plaintiff chose not to take any
depositions in this case, including those of Cumbo and Konopke, it is now
disingenuous for plaintiff to challenge their averments in their Affidavits and
ask the court not to consider them as she waived her opportunity during
discovery to challenge their averments.
Additionally, the court notes that it will consider plaintiff’s deposition
testimony to the extent that evidence in the record supports it.
Therapist, plaintiff worked in the Cancer Center/Radiation Oncology
Department as part of a team to prepare for and administer radiation therapy
to oncology patients. During the relevant time period of this case, plaintiff

worked in the Radiation Department under Lori Starbuck, Chief Radiation
Therapist, and Operations Manager, Cumbo.
All Geisinger employees must adhere to its employment policies,

including its Code of Conduct and its “Harassment and Disruptive Behavior”
Policy. (See generally Doc. 34-1 at 21-52). The Policy, in relevant part,
provides that Geisinger “expect[s] you to treat your coworkers with respect,

dignity and fairness”, and the Policy prohibits “‘intimidating and disruptive
behaviors’, including, but not limited to, overt actions such as verbal
outbursts and physical threats; passive activities such as refusing to perform
assigned tasks or quietly exhibiting uncooperative attitudes during routine

activities; reluctance or refusal to answer questions, return phone calls or
pages; condescending language or voice intonation; and impatience with
questions.”

The Policy also explained why the above conduct was prohibited and
stated that such conduct “can foster medical errors, contribute to poor patient
satisfaction and preventable adverse outcomes, increase the cost of care
and cause qualified clinicians, administrators, managers and affected
employees to seek new positions in more professional environments.” It
further explained that intimidating and disruptive behaviors in the workplace

“undermine team effectiveness and can compromise the safety of patients”,
and that they were “unprofessional and should not be tolerated.”
Geisinger’s Code of Conduct also contained a provision describing
penalties for violations of the either the Code or any of its policies, and stated

that violations “can result in disciplinary action, up to and including discharge
from employment or termination of your contract.” However, Code violations
could not be cited by an individual supervisor alone without input from the

Human Resources Department (“HR”).
Plaintiff had performance/disciplinary issues during her employment
with Geisinger. In her September 12, 2011 Performance Improvement Plan
(“PIP”), plaintiff was cited for an improper exchange with a co-worker, R.S.,

that occurred on September 2, 2011, and made to undergo a counseling
session with Cumbo. (Doc. 34-1 at 57). Shortly after the session, Plaintiff had
another “confrontational exchange” with R.S., and this time plaintiff was cited

by Cumbo for a Code of Conduct violation and she was issued a verbal
warning. In her PIP, plaintiff was instructed by Cumbo that “[i]nteractions with
coworkers in the workplace should be respectful and professional at all
times.”
Due to the incidents between plaintiff and R.S., so-called “Ground
Rules” had to be established for plaintiff and several other co-workers,

including R.S. and Starbuck, which included the agreement between plaintiff
and her co-workers that they would “act professionally” and “be mindful of
what patients can hear and what their perception might be.” (Doc. 34-1 at
60). The employees were required to sign that they agreed to abide by the

stated rules. From September 2011 through March 2019, there is no
evidence of performance or work conduct issues with the plaintiff.
However, in April 2019, plaintiff was again found to be acting in an

unprofessional manner in front of patients. In one instance, while plaintiff was
bringing a patient to the treatment unit, a co-worker asked to interrupt the
plaintiff’s conversation with the patient and then asked the patient for their
name and date of birth. Plaintiff responded by placing her arm around the

patient and telling the patient that they would have to excuse her co-worker
therapist and that is just how the therapist and she always interrupts
conversations.

In another incident, also in April 2019, a different patient asked where
plaintiff was, and the treating therapist stated that plaintiff was at another
machine. Plaintiff then responded that this is what happens here since
management was kicking her “off the island.” The other therapist tried to
explain the matter and told the patient that it was due to a normal rotation
within the department. Plaintiff then responded in front of the patient that the

other therapist could believe what she wanted.
The above stated incidents involving plaintiff’s apparent violations of
the Code of Conduct resulting in a meeting between Cumbo, Starbuck, and
plaintiff. The two incidents were discussed in the meeting and Cumbo told

plaintiff that it was not appropriate for her to speak to co-workers like she did,
especially in front of patients. Plaintiff responded that Cumbo and Starbuck
“got caught with [their] pants down.” Plaintiff was then told by Cumbo that

she should not talk to either she or Starbuck in that manner. Plaintiff also
complained about being placed on-call for her 60th birthday. However,
Cumbo reminded plaintiff that the on-call policy is done by rotation and that
when the schedule is completed the therapist must find their own

replacement.
Following the meeting, Cumbo consulted with HR Department to
discuss plaintiff’s unacceptable conduct and comments. Subsequently, on

April 25, 2019, Cumbo met with Starbuck, plaintiff, and Lisa Keifer, Associate
Vice President, Cancer Institute. At this time, Cumbo directed plaintiff to be
respectful and not use inappropriate comments in the future, such as “you
were caught with your pants down.” After being cautioned by Cumbo, plaintiff
was not issued any formal disciplinary action at the April 25, 2019 meeting.

Following the meeting, even though her shift was not yet over, plaintiff
did not return to her assigned area so that she could return to do her work.
Nor did plaintiff report to either Starbuck or Cumbo regarding where she was
going or that she needed someone else to cover for her work. As a result,

another meeting was then conducted on April 25, 2019, with Cumbo, Kerri
Michalik, Vice President, Cancer Institute, Keifer, and Robert Konopke,
Senior Human Resources Generalist. At this meeting, the supervisors

discussed plaintiff’s unexcused absence from her work area. It was decided
that plaintiff should be brought in the meeting to discuss her ongoing work
and conduct issues.
The four supervisors discussed their expectations of plaintiff, including

knowing her schedule and advising Cumbo or Starbuck if she had to leave
the department during her shift. Plaintiff was also told to be respectful to her
supervisors as well as her co-workers.

After the second meeting, Keifer emailed plaintiff on April 26, 2019, to
memorialize the meeting and to detail the expectations Geisinger had with
respect to plaintiff’s future performance. (Doc. 34-1 at 147, Ex. H). In
particular, plaintiff was again told in the email to let her supervisors Cumbo
and Starbuck know if she had any appointments and if she had to be away
from the radiation clinic, and to respect her supervisors, including during

conversations and regarding her tone.
Unfortunately, plaintiff’s work conduct towards her supervisors did not
improve. For instance, on May 1, 2019, plaintiff approached Cumbo and told
her she wanted to revisit her discussion about Cumbo and Starbuck being

“caught with [their] pants down.” Plaintiff stated to Cumbo that she had the
definition and wanted to show it to Cumbo. However, Cumbo informed
plaintiff that the continued discussion of the matter was inappropriate and

viewed as insubordination. As indicated above, such conduct by the plaintiff
towards her supervisors was addressed in their April 25, 2019 meeting.
Later on the same day, plaintiff did not notify her supervisors that she
would be late after lunch in returning to her assigned work station which

resulted in a delay with patient care.
On May 9, 2019, there were a series of inappropriate incidents between
plaintiff and Cumbo at the work place, (see Doc. 34 at 12-14), which

culminated in Cumbo contacting HR to discuss them. HR advised Cumbo to
issue plaintiff a PIP regarding the May 1 and May 9, 2019 incidents. Plaintiff
was then issued a PIP on May 13, 2019, by Cumbo and Konopke. (Doc. 34-
1, Ex. I). Since the PIP is in the record, it speaks for itself and it is not
repeated herein.

As part of the PIP, plaintiff was issued an Action Plain with specific
goals listed. (Doc. 34-1, Ex. I). Since the Action Plan is in the record, it speaks
for itself and is not repeated herein. Suffice to say that plaintiff was directed
to avoid emotional outbursts in the workplace and to maintain proper

professional conduct pursuant to the Code of Conduct.
On May 31, 2019, plaintiff was overheard by another therapist in the
treatment hallway telling her doctor that no therapists would work with her on

the weekend. The therapist reported the incident to Cumbo and the therapist
explained that she found plaintiff’s comments to be offensive because she
was never asked by plaintiff to come in on the weekend to help her.
On June 4, 2019, several therapists reported to Cumbo that a new

volunteer came in to Geisinger and that when she met with plaintiff in the
treatment hallway along with several others, plaintiff commented, “you
wouldn’t make it working here, you think out of the box like me and that is

not allowed here.”
Consequently, on June 6, 2019, Cumbo, Keifer, and plaintiff met to
discuss the May and June incidents. As to the first incident, Cumbo reminded
plaintiff of Geisinger’s policy that any therapist on call who felt they needed
assistance when coming in on the weekend may call any other therapist in
with her for help. Cumbo and Keifer also asked plaintiff about the incident

with the volunteer, when plaintiff made comments about thinking outside the
box, and plaintiff responded by stating that there was free speech in the
country.
Plaintiff then began to leave the June 6th meeting to attend an

appointment, and Cumbo asked plaintiff if she could return to work after the
appointment to finish her shift, and plaintiff responded she may be able to
return. However, when plaintiff returned from her appointment, she went to

Starbuck, and stated, “I am leaving, I have had enough harassment for one
day.” Plaintiff then left and did not complete her work shift that day.
Due to plaintiff’s continued performance issues, discussed above,
Cumbo again spoke with the HR Department and Melissa Cuesta reviewed

all the information, and then recommended suspending plaintiff pending an
investigation.
On June 7, 2019, Cumbo spoke with plaintiff and advised her that she

was being suspended pending an HR investigation by Cuesta regarding the
June 6, 2019 incidents. Plaintiff testified that Cumbo told her that her
suspension would be without pay unless she used her vacation time. Plaintiff
opted to use her vacation time for her suspended days so she received pay
during her entire suspension. (Doc. 42 at 69).

Cumbo then brought the suspension PIP to plaintiff, but plaintiff refused
to sign the document, and told Cumbo, “you are ridiculous if you want an
unlawful termination lawsuit you will have it, you are a fool.” Plaintiff admitted
to making this comment to Cumbo, but testified that she told Geisinger her

suspension was “foolish.”
Following the HR Department’s investigation conducted by Cuesta,
Geisinger made the decision to terminate plaintiff’s employment on June 13,

2019. Since the termination PIP is in the record along with the specific
reasons for plaintiff’s termination, it speaks for itself and is not repeated
herein. (Doc. 34-1, Ex. L, June 13, 2019 PIP). In short, the PIP informed
plaintiff that she was being terminated by Geisinger due to her “continued

inappropriate and disrespectful behaviors exhibited in the workplace with
management and staff within patient care areas, leaving the workplace
without permission, creating a hostile work environment by not adhering to

the polices and procedures [of her] employment with Geisinger.”
The following facts relate to plaintiff’s retaliation claims and her
allegations that she was terminated by Geisinger for complaining about racial
discrimination towards patients in the Radiation Department.
Prior to her termination, on March 29, 2019, plaintiff reported alleged
discriminatory conduct by staff regarding patients in the Radiation

Department (the “Report”). Plaintiff specifically was told that she would be
protected against retaliation with respect to her Report. Based on the
plaintiff’s Report, Geisinger’s Senior Human Resource Generalist, Konopke,
conducted an investigation into the discrimination allegations. (Doc. 34-1, Ex.

B, Konopke Affid. & Ex. M).
Konopke then conducted an investigation, which included interviewing
several employees, however, he did not inform any employee as to who

made the discrimination complaint. Also, during the investigation, Konopke
reminded each employee interviewed of Geisinger’s policy against
retaliation.
In the beginning of April 2019, Cumbo was advised that a complaint

was made about discriminatory conduct as to patients in the Radiation
Department, but she had no role in the investigation into the complaint.
Cumbo was then interviewed by Konopke during April 2019 as part of the

investigation, and at that time she was unaware that a Geisinger employee
made the Report. (Doc. 34-1 at 5).
At the completion of Konopke’s investigation, one employee, R.S., was
terminated by Geisinger for misconduct effective April 25, 2019. No other
employee was terminated or disciplined as a result of the investigation into
plaintiff’s Report.

There is no dispute that plaintiff’s Report of discrimination was made
two and one half months prior to her termination of employment with
Geisinger on June 13, 2019.
Plaintiff testified that on April 25, 2019, Cumbo called her into the office

and told her that she should not have spoken to employee Kerri Michalik
about racism in the Radiation Department, and that Cumbo told her to go
home. (Doc. 42 at 19-20).

III. DISCUSSION3
In Count I, plaintiff raises Title VII claims of retaliation and a retaliatory
hostile work environment as well as similar retaliation claims under the PHRA

3The court notes that since the parties state the correct legal standard
with respect to a motion for summary judgment under Fed.R.Civ.P. 56(c) in
their briefs, the court will not repeat it herein. Suffice to say that if the moving
party meets its burden by showing that “on all the essential elements of its
case on which it bears the burden of proof at trial, no reasonable jury could
find for the non-moving party”, In re Bressman, 327 F.3d 229, 238 (3d Cir.
2003), then the non-moving party “must do more than simply show that there
is some metaphysical doubt as to material facts,” but must show sufficient
evidence to support a jury verdict in its favor. Boyle v. County of Allegheny,
139 F.3d 386, 393 (3d Cir. 1998).
against Geisinger, and in Count III, she raises an aiding and abetting
retaliation claim against Cumbo under the PHRA.4

In Count I, plaintiff essentially alleges that Geisinger retaliated against
her due to her reporting discriminatory conduct on March 29, 2019.
Specifically, plaintiff alleges that she reported racism by Geisinger
employees against Black and Latinos, and discrimination against non-

English speaking patients, namely, by claiming that the therapists would
require minorities and non-English speaking patients to state their names
and birth dates in English before receiving treatment instead of providing an

interpreter. Plaintiff also reported that staff referred to minority patients using
derogatory terms.
In Count III, plaintiff alleges that Cumbo, as her supervisor, was aiding
and abetting Geisinger when it retaliated against her “for complaining about

4The court does not distinguish between the plaintiff’s Title VII and
PHRA claims against Geisinger in Count I, and will analyze these claims
together, because “the same standards govern each.” McNeill v. Greyhound
Lines, Inc., 628 F. App'x 101, 103 n. 1 (3d Cir. 2015) (citing Jones v. Sch.
Dist. of Phila., 198 F.3d 403, 409 (3d Cir. 1999)); see also Jones v. Se. Pa.
Transp. Auth., 796 F.3d 323, 327 (3d Cir. 2015); Fogleman v. Mercy Hosp.,
283 F.3d 561, 567 (3d Cir. 2002) (“The language of the PHRA is ...
substantially similar to [Title VII and other federal] anti-retaliation provisions,
and we have held that the PHRA is to be [ ] interpreted as identical to federal
anti-discrimination laws except where there is something specifically
different ....”).
racial, national origin discrimination/hostile work environment”, in violation of
the PHRA.

1. Title VII and PHRA Claims for Retaliation
The court will first address Count I, in which plaintiff raises essentially
two different claims for Title VII and PHRA violations against Geisinger,
namely, one for retaliation and one for retaliatory hostile work environment.

In order to establish a retaliation claim in violation of Title VII, a plaintiff
must prove a prima facie case by providing facts showing that: (1) she was
engaged in a protected activity; (2) she has suffered an adverse employment

action based on exercise of the protected activity; and (3) there is a causal
link between the protected activity and the adverse employment action.
Hussein v. UPMC Mercy Hospital, 466 Fed. Appx. 108, 111-12 (3d Cir. 2012)
(citing Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006));

Farrell v. Planters Lifesavers Company, 206 F.3d 271, 279 (3d Cir. 2000).
Further, plaintiff must show a causal connection between her participation in
a protected activity and the adverse employment action. Thomas v. Pocono

Mtn. Sch. Dist., 2011 WL 2471532, *8 (M.D. Pa. June 21, 2011). “Causation
‘may be demonstrated by evidence of circumstances that justify an inference
of retaliatory motive, such as protected conduct closely followed by adverse
action.’” Id. (citation omitted).
As to the first element, Geisinger concedes, for present purposes, that
plaintiff engaged in protected activity when she complained on March 29,

2019 about discrimination by employees against patients. (Doc. 35 at 11).
Thus, the court finds that plaintiff has satisfied the first element of her
retaliation claim. See Mufti v. Aarsand & Co., Inc., 667 F.Supp.2d 535, 552
(W.D. Pa. 2009) (“A plaintiff must participate in a protected activity to

establish a retaliation claim”, and “[p]rotected activity includes formal charges
of discrimination.”). The court also finds that plaintiff has shown that she
opposed an employment practice made illegal by Title VII. “Title VII’s anti-

retaliation provisions [42 U.S.C. §2000e-3] protect employees who oppose
employment practices made illegal by Title VII.” Brangman v. AstraZeneca,
LP, 952 F.Supp.2d 710, 721 (E.D. Pa. 2013).
At issue is whether plaintiff has established the remaining two elements

of her Title VII retaliation claims. The court in Larochelle v. Wilmac Corp.,
210 F.Supp.3d 658, 698 (E.D. Pa. 2016), discussed the second element of
a retaliation claim. The court stated that “retaliation claims—unlike other Title

VII claims—do not limit adverse employment actions to those that ‘affect the
terms and conditions of employment.’” Id. (citing Moore, 461 F.3d at 341).
The court explained that “[w]hat is required is a showing that a reasonable
employee would have found the retaliatory actions ‘materially adverse,’
which means that they ‘well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.’” Id. (citations omitted).

To satisfy the third, “material adversity,” element of a retaliation claim,
plaintiff must prove that the action “well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Hare v. Potter,
220 Fed.Appx. 120, 128 (3d Cir. 2007) (citing Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2415, 165 L.Ed.2d 345 (2006)).
Thus, “[w]ith respect to the causation component, the court must consider
whether ‘a reasonable jury could link the employer’s conduct to the retaliatory

animus.’” Id. (citing Jensen v. Potter, 435 F.3d 444, 449 n. 2 (3d Cir. 2006)).
“To assess this, the court may consider the ‘temporal proximity’ between the
plaintiff’s protected activity and the employer’s allegedly retaliatory response,
and the ‘existence of a pattern of antagonism in the intervening period.’” Id.

(citation omitted).
Here, regarding the adverse employment actions by Geisinger, plaintiff
alleges that after she reported the alleged discriminatory conduct on March

29, 2019, she was retaliated against by being harassed, reprimanded,
disciplined, suspended without pay, and ultimately fired by Cumbo. In
particular, plaintiff alleges that on April 25, 2019, she was harassed by
Cumbo when she received a reprimand for pointing out that the racial
discrimination had occurred in their department. Plaintiff further alleges that
on May 1, 2019, she was “bullied” by Cumbo when Cumbo gestured her to

stop speaking to her and by refusing to listen to her concerns.
Additionally, plaintiff alleges that on May 5, 2019, she was put “on call”
for her birthday even though every other year therapists were off on their
birthdays. On May 9, 2019, plaintiff alleges that she was dismissed from work

by Cumbo in retaliation for her complaint about the racial discrimination.
At the end of May 2019, plaintiff claims that she was given a lower
performance review by Cumbo pointing out that she was cited for

“Opportunity for Improvement” even though she usually received better
evaluations.
On June 7, 2019, plaintiff states that she was suspended without pay.
Finally, on June 13, 2019, plaintiff alleges she was terminated “in

retaliation for having blown the whistle on the mistreatment of non-English
speaking patients, minorities and reporting racial discrimination.”
The court finds that although an unpaid suspension can qualify as an

adverse employment action for purposes of retaliation, see Friel v. Mnuchin,
474 F.Supp.3d 673, 690 (E.D. Pa. 2020), in this case when plaintiff was
suspended on June 7, 2019, it is undisputed that she used her vacation time
and was paid during her entire suspension. Here, the court finds that the
plaintiff’s loss of a few days of accrued vacation leave is not an adverse
employment action since she did not suffer any loss of pay. See Grooms v.

City of Philadelphia, 2018 WL 4698856, at *5 (E.D. Pa. Sept. 28, 2018)
(holding that the loss of annual leave “was not ‘serious and tangible’ enough
to constitute a material change to the terms of employment because there is
‘no permanent reduction in [plaintiff’s] compensation”) (citing Deans v.

Kennedy House, Inc., 998 F. Supp. 2d 393, 411 (E.D. Pa. 2014) (“Deans I”),
aff'd, 587 F.App’x 731 (3d Cir. 2014).
Plaintiff’s placement on a PIP, prior to her termination, was not an

adverse action since it was not accompanied by a decrease in pay, benefits
or her employment status. See Reynolds v. Dep’t of Army, 439 F.App’x 150,
153-54 (3d Cir. 2011). The reprimand plaintiff received on April 25, 2019,
was not a formal discipline and did not result in a suspension. See Friel v.

Mnuchin, 474 F.Supp.3d 673, 689 (E.D. Pa. 2020) (holding that “[n]either the
counseling memo nor the performance evaluation were adverse employment
actions” since “[t]he counseling memo was advisory” and “[] did not impose

any disciplinary consequences, and only warned of possible future action if
he engaged in similar behavior again.”) (citing Weston, 251 F.3d at 431
(finding no adverse employment action where plaintiff failed to show the
written reprimands caused a material change in the terms or conditions of
his employment).

Nor are the alleged “bullying” and dismissal from work by Cumbo
adverse actions. These actions are not sufficient to “dissuade[ ] a reasonable
worker from making or supporting a charge of discrimination.” Burlington N.
& Santa Fe Ry. Co., 548 U.S. at 68, 126 S.Ct. 2405. Additionally, these

actions did not change or affect plaintiff’s employment status and they were
not materially adverse in any other sense.
Further, plaintiff’s end of May 2019 performance review was not an

adverse employment action since she failed to demonstrate that the lower
review had any tangible consequences for her employment. See Friel, 474
F.Supp. 3d at 689 (citing Clark v. Phila. Hous. Auth., 701 F.App’x 113, 117
(3d Cir. 2017) (finding no adverse action for purposes of retaliation where

plaintiff did not show her negative performance review adversely affected the
terms or conditions of her employment); Barnett v. N.J. Transit Corp., 573
F.App’x 239, 244 (3d Cir. 2014) (finding no adverse action for purposes of

retaliation where plaintiff “failed to show, or even allege, that [the negative
performance review] had any effect on her employment status).
Moreover, it is significant that the alleged actions taken by Cumbo that
resulted in some type of discipline to plaintiff do not show retaliatory motive
since plaintiff admitted in her deposition that she engaged in the conduct that
lead to her discipline and her termination. (Doc. 34, SMF ¶¶34, 48-49, 52,

54, 63-64, 73, 89, 94).
Similarly, the other conduct plaintiff alleges was retaliatory, such as the
failure to be considered for the Daisy Award and the failure to be transferred,
do not show retaliatory motive since plaintiff admitted that the denial of these

benefits were due to her being placed on a PIP at the time.
Plaintiff being placed on-call for her birthday was not a change in her
schedule and did not constitute any material change in the terms or

conditions of her employment. Further, plaintiff was free to find a substitute
therapist to work for her on her birthday.
Additionally, several other supervisory personnel at Geisinger along
with Cumbo were involved in issuing all of the disciplinary measures on

plaintiff, including, Konopke, Keifer, and Cuesta. In fact, plaintiff was not
terminated until Cuesta conducted her independent investigation into
plaintiff’s misconduct and, there is no evidence that Cuesta was even aware

of plaintiff’s report of discrimination. As indicated, when Konopke conducted
his investigation into plaintiff’s report, he did not reveal the identity of the
complainant.
Thus, the court finds that none of the above stated incidents that
occurred after plaintiff’s report of racial discrimination and before her

termination are actionable adverse employment actions, or actions
attributable to Geisinger, under Title VII. See Atkinson v. N. Jersey
Developmental, 453 F.App’x 262, 263-64, 266 (3d Cir. 2011) (finding no
adverse employment events when supervisor gave the plaintiff a low

performance review, issued her a warning for arriving late, denied her
vacation request, adjusted her duties, and exchange heated words with her).
It is clear that the plaintiff’s June 13, 2019 termination constituted a

materially adverse change in her employment status, see Paradisis v.
Englewood Hosp. Med. Ctr., 680 F.App’x 131, 136 (3d Cir. 2017) (“An
actionable adverse employment action is a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant
change in benefits.”), and the court finds that this is the only adverse
employment action for purposes of analyzing plaintiff’s Title VII retaliation

claims against Geisinger.
Next, the court finds that even though plaintiff’s June 13, 2019
termination qualified as an adverse employment action, she has failed to
demonstrate that this action was causally connected to her protected activity
of reporting discrimination. Plaintiff’s termination occurred more than two
months after plaintiff’s reporting of discrimination on March 29, 2019. The

court finds that this timing does not suggest causation. See Clark Cty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273–74, 121 S.Ct. 1508, 149 L.Ed.2d 509
(2001) (“The cases that accept mere temporal proximity between an
employer’s knowledge of protected activity and an adverse employment

action as sufficient evidence of causality to establish a prima facie case
uniformly hold that the temporal proximity must be ‘very close’ ...”). The court
finds that the time gap in this case of over two months is too long to show an

inference of retaliation based on the temporal proximity between the
protected activity and adverse action. See Shinn v. FedEx Freight, Inc., 783
F.App’x 229, 233-34 (3d Cir. 2019) (termination two months after protected
activity “is too long to suggest a causal relationship”); Carvalho-Grevious v.

Delaware State Univ., 851 F.3d 249, 261 n.8 (3d Cir. 2017) (2-month gap
between protected activity and adverse employment action does not raise an
inference of causation); Ward v. Ingersoll-Rand Co., 688 F.App’x 104, 110-

11 (3d Cir. 2017) (adverse action two months after protected activity “does
not support a casual inference.”); Williams v. Phila. Hous. Auth. Police Dep’t,
380 F.3d 751, 760 (3d Cir. 2004) (2-month gap between protected activity
and adverse action not suggestive of retaliation).
Plaintiff filed a notice of supplemental authority citing Kengerski v.
Harper, 6 F.4th 531, 541 n. 9 (3d Cir. 2021), as support for her contention that

she has shown a prima facie case of causation between her Report and her
termination. (Doc. 45). In Kengerski, id., the Third Circuit essentially noted
temporal proximity was not the only way to decide whether plaintiff has
provided “sufficient [evidence] to raise the inference that [her] protected

activity was the likely reason for the adverse [employment] action”, and that
“[w]hile a very long delay may suggest[ ], by itself, no causality at all, “[i]n the
absence of ... temporal proximity, we consider the circumstances as a whole,

including any intervening antagonism by the employer, inconsistencies in the
reasons the employer gives for its adverse action, and any other evidence
suggesting that the employer had a retaliatory animus when taking the
adverse action.” (internal quotations and citations omitted).

No doubt that “[t]he proffered evidence, looked at as a whole, may
suffice to raise the inference [of causation], and that it is a “highly context-
specific” inquiry in determining whether such an inference has been

established. Carvalho-Grevious, 851 F.3d at 260.
As discussed above, in addition to finding that the over 2-month gap
between the plaintiff’s Report and her termination does not raise an inference
of causation, the court has considered the circumstances as a whole in
finding that plaintiff has failed to establish a prima facie case of causation.
The court has found that plaintiff failed to present sufficient evidence

suggesting that Geisinger had a retaliatory animus nor that there were
inconsistencies in the reasons Geisinger gave for her termination. Rather,
there was an abundance of evidence in the record, detailed above, to show
that it was plaintiff’s own repeated misconduct in the workplace, both before

her report and after it, that caused her termination. The court has also found
that there is no evidence that the decision to terminate plaintiff was motivated
in any way by retaliatory animus, and that based on plaintiff’s history with

Geisinger and her violations of its Code of Conduct, “a reasonable jury could
[not] link [Geisinger’s] conduct to [any] retaliatory animus.” Jensen v. Potter,
435 F.3d 444, 449 n. 2 (3d Cir. 2006).
Plaintiff repeatedly points to her testimony during her successful appeal

for Pennsylvania unemployment compensation benefits in which she stated
that she never violated Geisinger’s Code of Conduct. (See Doc. 38, Ex. A,
CD containing the audio transcript of plaintiff’s unemployment compensation

hearing). Plaintiff’s offers the audio transcript to support her contention that
she did not violate Geisinger’s Code. Plaintiff also points out that at the
unemployment compensation hearing, Konopke admitted that her
discriminatory complaints about patient treatment at Geisinger were
substantiated.

“Under Pennsylvania law, discharge ... for willful misconduct connected
with ... work disqualifies an employee from unemployment compensation. 43
Pa. Cons. Stat. Ann. §802(e).” Gilson v. Pa. State Police, 157 F.Supp.3d
528, 564-65 (W.D. Pa. 2016) (internal quotations and citations omitted). “The

Pennsylvania Supreme Court has defined ‘willful misconduct’ to mean
wanton or willful disregard of the employer’s interest, a deliberate violation of
the employer’s rules, a disregard of standards of behavior which the

employer has a right to expect of an employee, or negligence indicating an
intentional disregard of the employer’s interest or of the employee’s duties
and obligations to the employer.” Id. (internal quotations and citations
omitted).

Plaintiff basically contends that there is a genuine issue of material fact
concerning whether she violated Geisinger’s Code and engaged in “willful
misconduct” since she applied for and was awarded, on appeal,

unemployment compensation benefits after her termination. Since plaintiff
prevailed in her appeal, it appears that plaintiff’s conduct was found not to
constitute “willful misconduct” within the meaning of Pennsylvania’s
unemployment compensation statute.
However, “[u]nder Pennsylvania law, factual findings in an
unemployment compensation administrative proceeding are given no

preclusive effect in subsequent civil litigation.” Id. at 566 n. 31 (citing 43 Pa.
Stat. Ann. §829 (West) (“[n]o finding of fact or law, judgment, conclusion or
final order made with respect to a claim for unemployment compensation
under this act may be deemed to be conclusive or binding in any separate or

subsequent action or proceeding in another forum.”); Mathis v. Christian
Heating and Air Conditioning, Inc., 91 F.Supp.3d 651, 657–58 (E.D. Pa.
2015); Training Associates Corp. v. Unemployment Comp. Bd. of Review,

101 A.3d 1225, 1234 (Pa. Commw.Ct. 2014)). Further, “[u]nder 28 U.S.C.
§1738, because Pennsylvania courts do not give preclusive effect to
decisions made with respect to a claim for unemployment compensation,
there is no legal basis upon which a federal court can do so.” Williams v.

Temple Univ. Hosp., Inc., 345 F.Supp.3d 590, 595 (E.D. Pa. 2018) (string
citations omitted).
In any event, although plaintiff was successful with her appeal of

unemployment compensation benefits and plaintiff was found not to have
committed “willful” and “gross” misconduct as defined by Pennsylvania’s
unemployment compensation statute, this is not determinative of whether
Geisinger found that she violated its Code of Conduct especially since
plaintiff admitted in her deposition that she engaged in the conduct that lead
to her termination. (Doc. 34, SMF ¶¶34, 48-49, 52, 54, 63-64, 73, 89, 94).

Nor is plaintiff’s award of unemployment compensation benefits
determinative of whether there was a causal link between plaintiff’s report
and her termination with respect to her Title VII retaliation claims against
Geisinger. See id. at 595-96 (holding that a proceeding regarding whether a

claim for unemployment benefits was wrongfully denied are “conducted
without discovery, and presided over by referees in the first instance”, and
“[they] are hardly an appropriate forum for vindicating important rights

protected by federal law.”). Thus, as the court in Williams, id. at 596, found,
“[the court] conclude[s] that the unemployment compensation proceedings
lack preclusive effect [in federal employment discrimination action].”
The court has also found that the alleged antagonizing actions

occurring after her report, including unfriendly treatment and harassment by
co-workers, were not materially adverse actions and that they were not
attributable to Geisinger. In fact, there is no credible evidence that any of

these actions were approved by Cumbo or any other supervisor, and plaintiff
fails to show respondeat superior liability. “When a hostile work environment
is created by an individual’s co-workers, rather than his supervisors, the
employer is not automatically liable.” Tarr v. FedEx Ground, 398 Fed.Appx.
815, 819 (3rd Cir. 2010) (citation omitted).

Thus, the court finds that plaintiff has failed to make out a prima facie
case of retaliation under Title VII through direct evidence against Geisinger,
and a reasonable jury could not find that plaintiff was terminated in retaliation
for reporting protected activity under Title VII.

Moreover, even if the plaintiff seeks to establish a prima facie case of
retaliation through indirect evidence, she fails when applying the McDonnell
Douglas burden-shifting framework. See Daniels v. Sch. Dist. of Phila., 776

F.3d 181, 198-99 (3d Cir. 2015) (Court held that a plaintiff who seeks to prove
his Title VII retaliation claim through indirect evidence, can do it by utilizing
the McDonnell Douglas burden-shifting framework.). Even applying the
burden-shifting framework, as discussed, plaintiff has clearly not met her

burden by showing “by a preponderance of the evidence that there is a ‘but-
for’ causal connection between the adverse employment action and
retaliatory animus.” Carvalho-Grevious v. Delaware State Univ., 851 F.3d

249, 258 (3d Cir. 2017) (holding that “the Supreme Court has made clear
that ‘Title VII retaliation claims must be proved according to traditional
principles of but-for causation.’”) (citation omitted).
Also, insofar as plaintiff is deemed to be proceeding under a pretext
theory, she has failed to submit evidence to “convince the factfinder that

[Geisinger’s] proffered non-retaliatory explanation [i.e., its supervisors and
its HR personnel were not satisfied with plaintiff’s work conduct and her
insubordination] was false, and that retaliatory animus was the ‘real reason
for the adverse employment action.’”). Id. (emphasis original) (citation

omitted). Further, Geisinger has articulated legitimate, non-retaliatory
reasons for plaintiff’s suspension and her termination that plaintiff has failed
to present evidence of pretext for retaliatory animus. Geisinger has provided

an abundance of evidence that plaintiff was suspended and then terminated
for making several unprofessional, inappropriate and rude comments to her
co-worker therapists (some in front of patients) and to her supervisors
Cumbo and Starbuck, as well as insubordination. In fact, as mentioned,

plaintiff did not dispute that the incidents detailed above occurred while she
was working at Geisinger and that frequently patients could hear her
unprofessional remarks. Further, Geisinger found that plaintiff’s conduct

violated its Code of Conduct, and she was repeatedly reminded this by
Cumbo as well as members of the HR Department, including Keifer and
Cuesta. It is of no moment that plaintiff challenges the credibility of Geisinger
and its supervisors and testified why she thought Cumbo erroneously cited
her for Code violations and insubordination since to discredit Geisinger’s
non-retaliatory reasons for her termination, plaintiff “cannot simply show that

[Geisinger’s] decision was wrong or mistaken, since the factual dispute at
issue is whether [retaliatory] animus motivated [Geisinger], not whether
[Geisinger was] wise, shrewd, prudent, or competent.” Fuentes v. Perskie,
32 F.3d 759, 765 (3d Cir. 1994).

Nor is there any merit to plaintiff’s pretext conspiracy theory since the
undisputed facts show that several other Geisinger employees, in addition to
Cumbo, were involved in plaintiff’s counseling, discipline, and termination. In

fact, the record reflects that Cumbo alone did not issue any of the discipline
upon which plaintiff relies. As detailed above, personnel of the HR
Department as well as other department personnel were involved with all of
the plaintiff’s counseling, formal discipline, and termination.

Thus, the court finds there is not sufficient evidence in the record to
show that the decisions by Geisinger, Cumbo, Keifer, and Cuesta were in
any way motivated by plaintiff’s reporting of discrimination by employees.

Further, at the summary judgment stage, it is not the court’s role “to
decide whether Defendant’s proffered legitimate, non-discriminatory reason
for Plaintiff’s termination was ‘warranted’ (i.e. that [Cumbo, Keifer, Starbuck,
and Cuesta’s] assessment of Plaintiff’s performance was accurate), but
instead decide whether Plaintiff has shown that reason was likely a pretext
for discriminatory animus.” Teubert v. SRA Internat’l, Inc., 192 F.Supp.3d

569, 576 (D. N.J. 2016). Here, as mentioned, plaintiff has not shown that
Geisinger’s proffered reasons for her termination were likely a pretext for
discriminatory animus.
In short, plaintiff has not met her burden of establishing a causal link

between her protected activity and the adverse employment actions by
showing a pattern of antagonism as well as temporal proximity “unusually
suggestive of retaliatory motive.” See Shaner v. Synthes, 204 F.3d 494, 505

(3d Cir. 2000). Thus, a reasonable jury could not link Geisinger’s conduct
after plaintiff reported the discrimination, through its decision makers,
including Cumbo, Keifer, and Cuesta, to any retaliatory animus.
As such, since plaintiff has failed to meet her ultimate burden of

showing that retaliatory animus was the “but-for” cause of the adverse
employment action (i.e., her termination), defendants’ motion for summary
judgment with respect to plaintiff’s claims of retaliation under Title VII and the

PHRA against Geisinger, Count I, will be granted.5 See Washington v.

5Since Geisinger is entitled to summary judgment on plaintiff’s Title VII
retaliation claim, it is likewise entitled to summary judgment on her PHRA
SEPTA, 2021 WL 2649146, *27 (E.D. Pa. June 28, 2021) (“At the summary
judgment stage, an employer can prevail by showing that the trier of fact

could not conclude, as a matter of law, (1) retaliatory animus played a role in
the employer’s decision making process, and (2) that it had a determinative
effect on the outcome of that process.”) (internal citation and quotations
omitted).

2. Hostile Work Environment Claim
In Count I, plaintiff also asserts a retaliation hostile work environment
claim against Geisinger. The usual discriminatory hostile work environment

framework applies equally to claims of retaliatory hostile work environment.
Komis v. Sec’y of United States Dep’t of Lab., 918 F.3d 289, 293 (3d Cir.
2019).
“To succeed on a hostile work environment claim [against the

employer], the plaintiff must establish that 1) the employee suffered
intentional discrimination because of [her protected activity], 2) the
discrimination was severe or pervasive, 3) the discrimination detrimentally

affected the plaintiff, 4) the discrimination would detrimentally affect a

retaliation claim. See Brugh v. Mt. Aloysius College, 432 F.Supp.3d 566, 578
(W.D. Pa. 2020).
reasonable person in like circumstances, and 5) the existence of respondeat
superior liability.” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d

Cir. 2013) (citation omitted).
“When a workplace is so permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of [a] victim’s employment and create an abusive working

environment, Title VII is violated.” Oncale v. Sundowner Offshore Srvs., Inc.,
523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).
“To establish that a supervisor’s harassment culminated in a tangible

employment action, ‘a plaintiff must show that the tangible employment
action was related to, or caused by, the alleged unlawful harassment or
retaliation.’” Bumbarger v. New Enterprise Stone and Lime Co., Inc., 170
F.Supp.3d 801, 841 (W.D. Pa. 2016) (citation omitted). “The Supreme Court

has clarified that an individual qualifies as a supervisor in harassment actions
‘only when the employer has empowered that employee to take tangible
employment actions against the victim, i.e., to effect a significant change in

employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a significant
change in benefits.’” Id. at 837-38.
“[A] court’s hostile work environment analysis ‘must concentrate not on
individual incidents, but on the overall scenario’ because it is often difficult to

determine the motivation behind allegedly discriminatory actions.” Syed v.
YWCA of Hanover, 906 F.Supp.2d 345, 355 (M.D. Pa. 2012) (citation
omitted). “In assessing the evidence presented, [the court] must consider the
totality of the circumstances, including ‘the frequency of the 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. The effect on the employee’s psychological

well-being is ... relevant.... but while psychological harm ... may be taken into
account, no single factor is required.’” Miller v. Thomas Jefferson Hosp., 565
Fed.App’x 88, 93 (3d Cir. 2014) (citation omitted).
Here, plaintiff’s retaliatory hostile work environment claim fails since

the court has found that she has not produced sufficient evidence to show
she suffered intentional retaliation because of her protected activity. Komis,
918 F.3d at 299 (even if plaintiff alleges several incidents of hostility

regarding a retaliatory hostile work environment claim, plaintiff still has the
“burden to show the allegedly hostile work environment was motivated by
retaliatory animus.”).
As discussed at length above, the court has found that plaintiff has
failed to produce sufficient evidence causally linking the alleged retaliatory

actions in the workplace with her report of discrimination. The court has also
found that while her termination was an adverse employment action, plaintiff
failed to show that it was causally connected to her protected activity.
Further, the court has found that plaintiff had work performance and conduct

issues prior to her report, and there is no dispute that she engaged in the
conduct that resulted in the disciplinary actions taken against her after her
Report and that resulted in her termination. No doubt that if the alleged

adverse employment actions pre-date the protected activity, then the
employee cannot show that they were causally connected to the protected
activity, she cannot satisfy the third element of a retaliation claim based upon
them. See Friel, 474 F.Supp.3d at 689.

In fact, plaintiff’s evidence largely reflects unfriendly co-workers who at
times would not speak to her and would throw out the things she gave them,
and this is not materially adverse conduct. Nor is this conduct sufficient to

show intentional retaliation since it has not been shown that this conduct was
any way related to plaintiff’s report of discrimination. In fact, the issues
between plaintiff and some of her co-workers dated back before she ever
complained of discrimination. “In determining whether harassment is
sufficiently severe or pervasive to create a hostile work environment, we
consider the totality of the circumstances, including ‘the frequency of the

discriminatory conduct; its severity; whether it is physically threatening ... or
a mere offensive utterance; and whether it reasonably interferes with an
employee's work performance.’” Friel, 474 F.Supp.3d at 692 (quoting
Mandel, 706 F.3d at 168). Further, “[i]t is not enough that ‘the employee

subjectively perceives [the environment] as abusive or hostile[.]’” Id. (quoting
Ullrich v. U.S. Sec’y of Veterans Affairs, 457 F. App'x 132, 140 (3d Cir.
2012)). Rather, “[t]he environment must also be ‘objectively hostile or

abusive,’ one ‘a reasonable person would find hostile or abusive.’” Id.
As the court in Friel, 474 F.Supp.3d at 692, explained:
Not all workplace harassment violates Title VII. Title VII “does not set
forth ‘a general civility code for the American workplace.’” Burlington N.
& Santa Fe Ry. Co., 548 U.S. at 68, 126 S.Ct. 2405 (quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140
L.Ed.2d 201 (1998)). It does not prohibit “all verbal or physical
harassment in the workplace[.]” Id. Only harassment motivated by a
discriminatory animus is prohibited. Abramson v. William Paterson
Coll. of N.J., 260 F.3d 265, 278 (3d Cir. 2001) (citing Spain v. Gallegos,
26 F.3d 439, 447–48 (3d Cir. 1994)).

Based on the foregoing, the court will grant defendants’ summary
judgment motion with respect to plaintiff’s Title VII and PHRA hostile work
environment claim against Geisinger in Count I.
3. Aiding and Abetting Under the PHRA
Finally, in Count III, plaintiff claims that Cumbo aided and abetted

Geisinger when it retaliated against her for complaining about racial
discrimination in violation of the PHRA. However, since the court has found
that Geisinger is not liable on plaintiff’s claims of retaliation under Title VII,
as well as under the PHRA, the court will grant defendants’ motion for

summary judgment regarding the plaintiff’s claim for individual liability
against her supervisor Cumbo for aiding and abetting under the PHRA.
As the court in Washington v. SEPTA, 2021 WL 2649146, *27 n. 53

(E.D. Pa. June 28, 2021), noted, “[t]he individual Defendant[] cannot be liable
for retaliation under the PHRA because [she] can only be held liable for
aiding and abetting under the PHRA, codified in 43 P.S. §955(e), “which
forbids, ‘any person, employer, employment agency, labor organization or

employee, to aid, abet, incite, compel or coerce the doing of any act declared
by this section to be an unlawful discriminatory practice....’” (quoting
Brzozowski v. Pa. Tpk. Comm’n, 165 F. Supp. 3d 251, 262-63 (E.D. Pa.

2016), aff’d as modified, 738 F.App’x 731 (3d Cir. 2018)). Thus, “[Cumbo]
can be held liable under the PHRA for aiding and abetting [Geisinger’s]
retaliation, but [she] cannot be held liable for the retaliation itself.” Id.
However, “[t]here is no violation, and thus no liability, under Section 955(e)
when there is no corresponding [PHRA] violation by an employer to aid and
abet.” Id. at *32 (internal quotations and citation omitted). As such, plaintiff’s

Section 955(e) claim against Cumbo fails because her retaliation claim
against Geisinger under PHRA §955(d) failed, and “plaintiff has alleged no []
retaliation for [Cumbo] to aid and abet.” Id. (citations omitted).
Thus, the court will grant defendants’ summary judgment motion with

respect to plaintiff’s aiding and abetting claim under PHRA §955(e) raised
against Cumbo in Count III of her amended complaint.

IV. CONCLUSION
The defendants’ motion for summary judgment, (Doc. 33), will be
GRANTED IN ITS ENTIRETY with respect to the plaintiff’s remaining Title
VII and PHRA claims against Geisinger in Count I and, with respect to her

PHRA aiding and abetting claim against Cumbo in Count III of her amended
complaint, (Doc. 11). Further, JUDGMENT will be entered in favor of the
defendants and against the plaintiff. An appropriate order will issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge

DATE: March 31, 2022

20-45-02

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10411559. Public record. Not legal advice.