DOE v. Pennsylvania Department of Corrections

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN DOE, No. 4:19-CV-01584

Plaintiff, (Chief Judge Brann)

v.

PENNSYLVANIA DEPARTMENT

OF CORRECTIONS, et al.,

Defendants.

MEMORANDUM OPINION

AUGUST 9, 2022

I. BACKGROUND

Plaintiff John Doe filed an eight-count complaint, alleging a hostile work

environment, constructive discharge, failure to accommodate, and retaliation. This

case is predicated on the Court’s federal question jurisdiction, as Doe brings claims

under the Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution and the Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 794.

Defendants include the Pennsylvania Department of Corrections, Superintendent

Thomas McGinley, Deputy Superintendent Edward Baumbach, Major Victor

Mirarchi, Sergeant Leonard, Lieutenant Peters, Sergeant Batiuk, Lieutenant

Procopio, and James Roe.

Instead of moving to dismiss, Defendants answered Doe’s Complaint. And

after discovery closed, Defendants moved for summary judgment in their favor.

This motion for summary judgment is now ripe for disposition. For the reasons

below, it is granted in part and denied in part.

II. STANDARD OF REVIEW

The Court begins its analysis of Defendants’ motion for summary judgment

with the standard of review. “One of the principal purposes of the summary

judgment rule is to isolate and dispose of factually unsupported claims or defenses.”1

The Supreme Court of the United States has advised that Federal Rule of Civil

Procedure 56 “should be interpreted in a way that allows it to accomplish this

purpose.”2 Summary judgment is appropriate where “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.”3

Material facts are those “that could alter the outcome” of the litigation, “and

disputes are ‘genuine’ if evidence exists from which a rational person could conclude

that the position of the person with the burden of proof on the disputed issue is

correct.”4 A defendant “meets this standard when there is an absence of evidence

that rationally supports the plaintiff’s case.”5 And a plaintiff must “point to

1 Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

2 Id. at 324.

3 Fed. R. Civ. P. 56(a).

4 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010) (quoting Clark v. Modern

Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993)).

admissible evidence that would be sufficient to show all elements of a prima facie

case under applicable substantive law.”6

A judge’s task when “ruling on a motion for summary judgment or for a

directed verdict necessarily implicates the substantive evidentiary standard of proof

that would apply at the trial on the merits.”7 Thus, if “the defendant in a run-of-the-

mill civil case moves for summary judgment or for a directed verdict based on the

lack of proof of a material fact, the judge must ask himself not whether he thinks the

evidence unmistakably favors one side or the other but whether a fair-minded jury

could return a verdict for the plaintiff on the evidence presented.”8

“The mere existence of a scintilla of evidence in support of the [nonmovant’s]

position will be insufficient; there must be evidence on which the jury could

reasonably find for the [nonmovant].”9 Part of the judge’s role at this stage is to ask

“whether there is [evidence] upon which a jury can properly proceed to find a verdict

for the party producing it, upon whom the onus of proof is imposed.”10 In answering

that question, the Court “must view the facts and evidence presented on the motion

6 Id.

7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

8 Id.

9 Daniels v. School Dist. of Philadelphia, 776 F.3d 181, 192 (3d Cir. 2015) (quoting Liberty

Lobby, 477 U.S. at 252 (alterations in original)).

10 Liberty Lobby, 477 U.S. at 252 (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S.

in the light most favorable to the nonmoving party.”11 The evidentiary record at trial

will typically never surpass what was compiled during discovery.

The party requesting summary judgment bears the initial burden of supporting

its motion with evidence from the record.12 For example, while “at the motion-to-

dismiss stage of proceedings a district court is obligated to accept the allegations in

a plaintiff’s complaint as true, it does not accept mere allegations as true at the

summary judgment stage.”13 The moving party must identify those portions of the

“pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, which it believes demonstrate the absence of a genuine

issue of material fact.”14 “Regardless of whether the moving party accompanies its

summary judgment motion with affidavits, the motion may, and should, be granted

so long as whatever is before the district court demonstrates that the standard for the

entry of summary judgment, as set forth in Rule 56(c), is satisfied.”15

For movants and nonmovants alike, the assertion “that a fact cannot be or is

genuinely disputed” must be supported by: (1) citations to particular parts of

materials in the record that go beyond mere allegations; (2) a showing that the

materials cited do not establish the absence or presence of a genuine dispute; or (3)

11 Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020).

12 Celotex, 477 U.S. at 323.

13 Wiest v. Tyco Electronics Corp., 812 F.3d 319, 330 (3d Cir. 2016).

14 Id. (internal quotations omitted).

a display that an adverse party cannot produce admissible evidence to support the

fact.16

Summary judgment is effectively “put up or shut up time” for the nonmoving

party.17 When the movant properly supports his motion, the nonmoving party must

show the need for a trial by setting forth “genuine factual issues that properly can be

resolved only by a finder of fact because they may reasonably be resolved in favor

of either party.”18 The nonmoving party will not withstand summary judgment if all

it has are “assertions, conclusory allegations, or mere suspicions.”19 Instead, it must

“identify those facts of record which would contradict the facts identified by the

movant.’”20 Moreover, “if a party fails to properly support an assertion of fact or

fails to properly address another party’s assertion of fact as required by Rule 56(c)”

the Court may “consider the fact undisputed for purposes of the motion.”21 On a

motion for summary judgment, “the court need consider only the cited materials, but

it may consider other materials in the record.”22

Finally, “at the summary judgment stage[,] the judge’s function is not himself

to weigh the evidence and determine the truth of the matter but to determine whether

16 Fed. R. Civ. P. 56(c)(1).

17 Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006) (Fisher, J.).

18 Liberty Lobby, 477 U.S. at 250.

19 Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010).

20 Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003).

21 Fed. R. Civ. P. 56(e)(2); see also Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613–14 (3d

Cir. 2018).

there is a genuine issue for trial.”23 “If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.”24

III. UNDISPUTED FACTS

With that standard outlining the framework for review, the Court now turns

to the undisputed facts.

In October 2013, Doe began working at The State Correctional Institution at

Coal Township (“SCI-Coal Township”).25 After completing his training, Doe

became a Corrections Officer I, which included assignments as a utility officer and

block officer.26 Doe described his job duties as follows:

I mean, there were multiple positions, multiple positions. Being

a utility officer, just maintaining care, custody and control of those that

I would be overseeing, whether it be in their rec yard or on a unit as a

relief of another officer. Just following whatever duties were assigned

to me that day.

Being a block officer would be the same thing, maintaining care,

custody and control, making sure that I’m completing my counts, my

rounds, accountability for the inmates on the housing unit that I was on

for that day, reporting to my immediate supervisor.27

Doe alleged that on December 8, 2016, “Sergeant Batiuk began accusatively

inquiring in an unprofessional and very rude tone about why specific inmates were

23 Liberty Lobby, 477 U.S. at 249.

24 Id. at 249–50 (internal citations omitted).

25 Doc. 47 at ¶ 1.

26 Id. at ¶ 3.

out of their cells.”28 Doe told Batiuk to stop harassing him.29 But Batiuk “snapped

back that it [wasn’t] called harassment.”30

Doe further alleged that on “that specific day, there was a female utility officer

that received the complete opposite treatment that [he] received.”31 This led Doe “to

feel as though [Batiuk was] discriminating against [him] for [his] gender identity,

orientation and/or race.”32 When Doe complained, Lieutenant Peters stated that Doe

was making “some very serious allegations” and “[t]hat [Peters] would take care of

it.”33

That month, Doe spoke to Superintendent Thomas McGinley about

transitioning to the male gender.34 Doe asked McGinley about policies for

transgender employees.35 Doe also informed McGinley that he had begun hormonal

treatments and was anticipating making some changes in his life.36

In response, McGinley patted Doe on the back and said that he would get back

to him.37 Then McGinley contacted Kristine Holt, a Field Human Resources Officer

at SCI–Coal Township, for guidance on how to appropriately handle Doe’s

28 Id. at 8.

29 Id.

30 Id.

31 Id. at 9.

32 Id. at 8.

33 Id. at 12.

34 Id. at 9.

35 Id. at 10.

36 Id.

transition.38 McGinley asked Holt if the DOC had “any policies in place regarding

how to address transgender employees and how they affect gender based posts.”39

In January 2017, Doe agreed to discuss his transition with Deputy

Superintendent Edward Baumbach in a separate conference room.40 When Doe

arrived, Baumbach, Holt, and Major Victor Mirarchi were present.41 Then Doe

received the DOC’s Gender Transition Guidelines.42

During this meeting, Doe announced that he was getting his first hormone

injections in March 2017, the effects of which would become noticeable about sixty

days later.43 Doe allowed the attendees to inform commissioned staff of his

transition.44 Doe further indicated that he wanted others to refer to him by a male

name going forward.45

After the January 2017 meeting, other meetings proceeded.46 During these

later meetings, attendees instructed Doe to voice any complaints regarding his

transition.47 Attendees also asked Doe if they could do anything to help him.48

38 Doc. 47 at ¶ 9.

39 Id. at ¶ 10.

40 Id. at ¶¶ 14–15.

41 Id. at ¶ 16.

42 Id. at ¶ 17.

43 Id. at ¶ 18.

44 Id. at ¶ 19.

45 Id.

46 Doc. 47-2 at 16.

47 Id.

In February 2017, Doe reported to Baumbach that an inmate had overheard

Peters, Lieutenant Rich, and Sergeant Green making derogatory comments about

Doe.49 The inmate “said that one of them had made the comment that [Doe] need[ed]

to stop making things about his gender identity; that [Doe] wasn’t going to last long,

and they[] [would] see to it.”50 The inmate had also heard these corrections officers

saying that Doe had to “pull up” his gender identity every time something did not go

his way.51

Doe alleged mistreatment again in June 2017, submitting a written report to

Baumbach.52 But this report did not specify who had mistreated Doe.53 So

Baumbach was unable to investigate Doe’s allegations.54

In July 2017, Doe contacted Tiffany Epoca, Director at the Office of Equal

Employment Opportunity at the DOC, to make a complaint.55 Epoca told Doe that

DOC policy required him to specify a date at which he would begin presenting in

the male gender.56 Until then, Doe would have to “follow all the rules including and

not limited to dress codes and post assignments of the female gender.”57

49 Id. at 13.

50 Id.

51 Id.

52 Doc. 47 at ¶ 43.

53 Id. at ¶ 44.

54 Id. at ¶ 45.

55 Id. at ¶ 28.

56 Id. at ¶ 29.

Doe also asked to bring a prosthetic penis to work.58 Doe was “told that [he]

would have to fill out a gate clearance, which [he] was fine with.”59 But the

prosthetic had a “hollowed-out component . . . that could potentially be used as

smuggling device.”60 Doe believed that this component would have subjected him

to searches upon entering the prison facility, which he objected to.61 So Doe did not

bring the prosthetic into the facility.62

On November 17, 2017, Doe submitted a letter announcing his “intent to

resign from [his] current position as Correction Officer I at SCI Coal Township.”63

On November 19, 2017, Doe submitted another letter specifying November 19 as

his “last day of employment with SCI Coal Township” and stating that “situations

and circumstances beyond [his] control . . lead [sic] to this decision.”64 Doe signed

both letters using his female name.65

58 Doc. 47 at ¶ 31.

59 Id. at ¶ 32.

60 Id. at ¶ 33.

61 Id. at ¶¶ 34–35.

62 Id. at ¶ 35.

63 Id. at ¶ 46.

64 Id. at ¶ 48.

65 Id. at ¶ 49.

IV. ANALYSIS

A. James Roe Defendant

In his Complaint, Doe sues an anonymous James Roe defendant.66 But

discovery has closed, and Doe has yet to identify this James Roe defendant.67

Accordingly, James Roe is dismissed as a party.68

B. Counts I and II

1. Hostile Work Environment

First, Doe claims a hostile work environment based on sex/gender under the

Equal Protection Clause.

To succeed on a hostile work environment claim, the plaintiff must

establish that 1) the employee suffered intentional discrimination

because of his/her sex, 2) the discrimination was severe or pervasive,

3) the discrimination detrimentally affected the plaintiff, 4) the

discrimination would detrimentally affect a reasonable person in like

circumstances, and 5) the existence of respondeat superior liability.69

“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only

by looking at all the circumstances. These may include the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or

66 Doc. 1 at 1.

67 See Doc. 52-1.

68 See Blakeslee v. Clinton County., 336 F. App’x 248, 250 (3d Cir. 2009) (“If reasonable

discovery does not unveil the proper identities, however, the John Doe defendants must be

dismissed.”); see also Graham-Smith v. City of Wilkes-Barre, No. 3:17-CV-00239, 2020 WL

9607112, at *5 (M.D. Pa. Feb. 26, 2020) (“Thus, if a plaintiff fails to amend a complaint to

identify unnamed John Doe defendants, a court may sua sponte dismiss those defendants prior

to ruling on a summary judgment motion.”), report and recommendation adopted, No. 3:17-

CV-239, 2021 WL 2020591 (M.D. Pa. May 19, 2021).

humiliating, or a mere offensive utterance; and whether it unreasonably interferes

with an employee’s work performance.”70

Here, Doe testified that “[f]rom the moment that [he] had disclosed [his] intent

to transition until the day that [he] had left,” DOC staff and inmates “misgendered

[him] with female pronouns on an almost daily basis.”71 When Doe corrected a

fellow officer’s pronoun usage, the officer replied, “Well, you still have tits and a

twat, right?”72 Another officer told Doe, “You minorities get what you deserve.”73

When Doe reported harassment to his supervisors, “Baumbach . . . started

yelling at [him].”74 And after Doe reported a particular officer’s harassment, he “was

met outside by not only [the officer] himself, but also his brother, who was also an

officer, and a few other officers, outside, which made [Doe] feel very unsafe and

uncomfortable by the show of force of kind of, like, them versus [Doe].”75 From

this testimony about physical intimidation, discriminatory comments, and almost

daily misgendering, a reasonable juror could find a hostile work environment.

Defendants counter that none of these incidents were severe enough to

constitute a hostile work environment. But the Third Circuit has “precluded an

70 Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).

71 Doc. 47-2 at 40.

72 Id. at 30.

73 Id. at 33.

74 Id. at 16.

individualized, incident-by-incident approach.”76 “Because a hostile work

environment claim is a single cause of action, rather than a sum of discrete claims,

each to be judged independently, the focus is the work atmosphere as a whole.”77

Viewing the totality of the circumstances and Doe’s work atmosphere as a whole, a

reasonable juror could find a hostile work environment.

2. Constructive Discharge

Next, Doe claims constructive discharge based on sex/gender under the Equal

Protection Clause. “A hostile-environment constructive discharge claim entails

something more: working conditions so intolerable that a reasonable person would

have felt compelled to resign.”78 “In determining whether an employee was forced

to resign, we consider a number of factors, including whether the employee was

threatened with discharge, encouraged to resign, demoted, subject to reduced pay or

benefits, involuntarily transferred to a less desirable position, subject to altered job

responsibilities, or given unsatisfactory job evaluations.”79

Defendants argue that Doe’s constructive discharge claim based on

sex/gender under the Equal Protection Clause fails for the “same reasons” as his

hostile work environment claim.80 But as the Court explained above, Doe has

76 West v. Philadelphia Elec. Co., 45 F.3d 744, 756 (3d Cir. 1995) (reversing judgment in

defendant-employer’s favor on hostile work environment claim).

77 Id.

78 Pennsylvania State Police v. Suders, 542 U.S. 129, 131 (2004).

79 Mandel, 706 F.3d at 169–70.

adequately shown a hostile work environment based on sex/gender under the Equal

Protection Clause at this stage. So Doe’s constructive discharge claim does not fail

either.

Defendants counter that none of the six factors indicative of constructive

discharge are present here. “However, it is important to note that we have never

made the . . . factors an absolute requirement for recovery. . . . The absence of the

factors . . . is not necessarily dispositive.”81 Accordingly, Doe’s constructive

discharge claim based on sex/gender under the Equal Protection Clause survives

summary judgment.

3. Personal Involvement

The Court “must next determine which individual Defendants were personally

involved in creating the hostile work environment.”82 “Personal involvement exists

where the defendant engaged in the purposeful discriminatory conduct himself or

knowingly acquiesced to it.”83 The Court analyzes the individual defendants’

involvement as follows.

81 Duffy v. Paper Magic Grp., Inc., 265 F.3d 163, 168 (3d Cir. 2001).

82 McCowan v. City of Philadelphia, No. CV 19-3326-KSM, 2022 WL 742687, at *31 (E.D. Pa.

Mar. 10, 2022).

83 A. F. by & through Fultz v. Ambridge Area Sch. Dist., No. 2:21-CV-1051, 2021 WL 3855900,

a. McGinley, Leonard, Peters, and Procopio

In his brief opposing summary judgment, Doe never mentions Superintendent

McGinley, Sergeant Leonard, Lieutenant Peters, or Lieutenant Procopio.84 Nor does

Doe’s brief explain these individual defendants’ personal involvement.85

Accordingly, Doe has not met his summary judgment burden to show these

defendants’ personal involvement.86 Defendants’ motion for summary judgment is

granted as to the claims against McGinley, Leonard, Peters, and Procopio in Counts

I and II of Doe’s Complaint.

b. Baumbach

In his deposition, Doe testified that Deputy Superintendent Edward

Baumbach “got quite heated” and “started yelling at [him]” after he reported

harassment.87 Such evidence “is sufficient to raise a genuine issue of material fact

as to whether [Baumbach] was personally involved in violating [Doe’s] right to

equal protection.”88 Accordingly, Defendants’ motion for summary judgment is

denied as to Doe’s claims against Baumbach in Counts I and II of the Complaint.

84 Doc. 52-1.

85 Id.

86 See Perkins v. City of Elizabeth, 412 F. App’x 554, 555 (3d Cir. 2011) (“We emphasize, as did

the District Court, that a court is not obliged to scour the record to find evidence that will

support a party’s claims. When parties fail to support their claims with adequate citations to

the record, they risk having those claims rejected, as was rightly done here.”) (citation omitted).

87 Doc. 47-2 at 16.

88 Ivan v. Cnty. of Middlesex, 595 F. Supp. 2d 425, 480 (D.N.J. 2009) (denying summary

judgment because “Plaintiffs also produced evidence that after Jazikoff met with the County’s

personnel department to report the various incidents of sexual harassment, Undersheriff

c. Batiuk

In his deposition, Doe testified that Sergeant Batiuk “would mimic [him],”

and “cussed and swore at and to [him] aggressively in front of numerous inmates,

belittling [his work.”89 Doe also testified that Batiuk threw Doe’s phone on the

desk.90 Doe further testified that he had “never . . . seen or heard of Sergeant Batiuk

mistreating anyone to this extent . . .”91 Viewing this testimony in the light most

favorable to Doe, a reasonable juror could find that Batiuk was personally involved

in a hostile work environment.92

Defendants counter that though Batiuk was unprofessional, Doe has not

shown discriminatory intent. But “the advent of more sophisticated and subtle forms

of discrimination requires that we analyze the aggregate effect of all evidence and

reasonable inferences therefrom, including those concerning incidents of facially

neutral mistreatment, in evaluating a hostile work environment claim.”93 So a “jury

could determine that this hostile work environment stemmed from” Batiuk’s

“facially neutral mistreatment . . . .”94 Defendants’ motion for summary judgment

is denied as to Doe’s claims against Batiuk in Counts I and II of the Complaint.

89 Doc. 47-2 at 8.

90 Id.

91 Id.

92 Brown-Baumbach v. B&B Auto., Inc., 437 F. App’x 129, 132–34 (3d Cir. 2011) (reversing

summary judgment in defendant-employer’s favor when plaintiff-employee’s co-worker

“would throw [plaintiff’s] paperwork on the floor” and did not treat other co-workers “in a

similarly rude, disrespectful, or hostile manner”).

93 Cardenas v. Massey, 269 F.3d 251, 261–62 (3d Cir. 2001) (reversing summary judgment in

defendant-employer’s favor on hostile work environment claim).

d. Mirarchi

In his deposition, Doe testified that his “allegations about Victor Mirarchi’s

conduct” involved “[j]ust the mis-enforcement of the gender confirmation.”95 And

in his brief opposing summary judgment, Doe claims that he “was provided the

Confirmation of Gender Presentation Date Form by . . . Mr. Mirarchi . . . .”96 In

other words, Doe claims that Mirarchi contributed to a hostile work environment by

denying Doe’s accommodation request to use male sanitary facilities until Doe

provided a gender-presentation date.

But the United States District Court for the Western District of Pennsylvania

has held that “the mere denial of a requested accommodation, with nothing more,

will not rise to the level of a hostile work environment.”97 And the United States

District Court for the District of Delaware has held that “the unreasonableness of the

accommodations . . . does not establish a hostile work environment.”98 Following

this persuasive authority, Mirarchi did not become personally involved in a hostile

work environment just by denying Doe’s accommodation request to use male

sanitary facilities until Doe provided a gender-presentation date.

95 Doc. 47-2 at 41.

96 Doc. 52-1 at 13.

97 Busch v. Oswayo Valley Sch. Dist., No. 1:15-CV-239, 2016 WL 5394085, at *9 (W.D. Pa.

Sept. 27, 2016) (citation omitted).

Besides the gender-presentation date, Doe’s brief opposing summary

judgment does not mention Mirarchi anywhere else.99 Accordingly, Doe has not met

his summary-judgment burden to show Mirarchi’s personal involvement in a hostile

work environment or constructive discharge. Defendants’ motion for summary

judgment is granted as to Doe’s claims against Mirarchi in Counts I and II of his

Complaint.

C. Counts III and IV

Doe also claims a hostile work environment and constructive discharge based

on disability under the Equal Protection Clause. Defendants argue that these claims

are not cognizable because “disabled individuals” are not “protected classes of

individuals” under the Equal Protection Clause.100 Indeed, various federal courts

have held that Equal Protection claims for hostile work environment and

constructive discharge based on disability are “not actionable under § 1983.”101

Regardless, Doe does not respond to Defendants’ argument about these

claims’ viability.102 Nor does Doe address whether the Equal Protection Clause

99 Doc. 52-1.

100 Douglas v. Kustenbauder, No. 1:18-CV-00252, 2021 WL 1087666, at *6 (M.D. Pa. Mar. 22,

2021).

101 Fierro v. New York City Dep’t of Educ., 994 F. Supp. 2d 581, 590 (S.D.N.Y. 2014); see also

Principe v. Vill. of Melrose Park, No. 20 CV 1545, 2022 WL 488937, at *11 n.27 (N.D. Ill.

Feb. 17, 2022) (“While the ADA prohibits employers from harassing employees on the basis

of disability, plaintiff hasn’t shown that the right to be free from such harassment is also

protected by the Fourteenth Amendment.”) (internal citation omitted); Weinstein v. New York

City Dep’t of Educ., No. 16CV3118ILGRER, 2017 WL 2345640, at *4 (E.D.N.Y. May 30,

2017) (“Plaintiff’s claims of disability discrimination, including hostile work environment, are

not actionable under § 1983. Defendants’ motion to dismiss those claims is GRANTED.”).

permits hostile work environment and constructive discharge claims based on

disability.103 Accordingly, Doe has waived or abandoned his Equal Protection

claims for hostile work environment and constructive discharge based on

disability.104 Defendants’ motion for summary judgment is granted as to these

claims.

D. Counts V and VI

Next, Doe claims a hostile work environment and constructive discharge

based on disability under the RA. Defendants argue that these claims fail for the

“same reasons” Doe’s Equal Protection claims for a hostile work environment and

constructive discharge fail.105 But as the Court explained above, Doe’s Equal

Protection claims for a hostile work environment and constructive discharge based

on sex/gender survive against several defendants. So Defendants’ motion for

summary judgment is denied as to Doe’s hostile work environment and constructive

discharge claims under the RA.

103 Id.

104 See Nissan World, LLC v. Mkt. Scan Info. Sys., Inc., No. CIV. 05-2839 MAH, 2014 WL

1716451, at *10 (D.N.J. Apr. 30, 2014) (“Failing to raise an argument in opposition to a motion

for summary judgment constitutes a waiver of that argument.”); Mills v. City of Harrisburg,

589 F. Supp. 2d 544, 558 (M.D. Pa. 2008), aff’d, 350 F. App’x 770 (3d Cir. 2009) (“Mills’s

counsel has failed to respond to arguments that defendants raised against these claims. As such,

Mills has abandoned them, and summary judgment will be granted in defendants’ favor.”);

Smith v. Lucas, No. CIV. 4:05-CV-1747, 2007 WL 1575231, at *10 (M.D. Pa. May 31, 2007)

(“Moreover, based on Plaintiff’s failure to even mention this claim in his opposing brief, it

appears that he has abandoned the pursuit of said allegations. Thus, Defendants’ unopposed

argument requesting entry of summary judgment with respect to Plaintiff’s conditions of

confinement claims will be granted.”).

E. Count VII

Doe also claims that the DOC violated the RA by failing to accommodate his

gender dysphoria. In his Complaint, Doe alleged that the DOC required him to list

his prosthetic penis on a gate clearance form, prevented him from conducting pat

searches on other officers, and prevented him from using a male locker room and

bathrooms.106 Doe also alleged that SCI-Coal Township’s staff and inmates

misgendered him with female pronouns.107 But Doe’s brief opposing summary

judgment does not mention the prosthetic penis or pat searches.108 So Doe has

narrowed his failure-to-accommodate claim to the sanitary facility and pronoun

issues only.109 The Court addresses each issue in turn.

1. Male Facilities

Doe claims that the DOC failed to accommodate his requests to use a male

locker room and bathrooms. “Whether suit is filed under the Rehabilitation Act or

under the Disabilities Act, the substantive standards for determining liability are the

same.”110 To demonstrate a failure to accommodate, Doe must demonstrate that 1)

the DOC knew about his gender dysphoria, 2) Doe requested accommodations or

assistance for his gender dysphoria, 3) the DOC did not make a good-faith effort to

106 Doc. 1 at ¶ 70.

107 Id.

108 Doc. 52-1.

109 See Olivares v. United States, 447 F. App’x 347, 350 (3d Cir. 2011) (“Through counsel,

Olivares opposed summary judgment; however, he did so on narrower grounds than those

advanced in his original complaint . . . .”).

assist Doe in seeking accommodations; and 4) Doe could have been reasonably

accommodated but for the DOC’s lack of good faith.111

“The interactive process does not dictate that any particular concession must

be made by the employer . . . . All the interactive process requires is that employers

make a good-faith effort to seek accommodations.”112 “Employers can show their

good faith in a number of ways, such as taking steps like the following: meet with

the employee who requests an accommodation, request information about the

condition and what limitations the employee has, ask the employee what he or she

specifically wants, show some sign of having considered employee’s request, and

offer and discuss available alternatives when the request is too burdensome.”113

Here, the DOC made a good-faith effort to assist Doe in seeking

accommodations. In January 2017, Deputy Superintendent Baumbach, Major

Mirarchi, and Field Human Resources Officer Holt met with Doe to discuss his

transition.114 They provided Doe with “some policies for transgender staff and . . .

discussed what [Doe’s] plan was, asked some questions.”115 These policies covered

“lavatory facilities” and included a “gender confirmation letter” requiring Doe to

specify a presentation date.116 The meeting’s participants clarified that “there would

111 See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 320 (3d Cir. 1999).

112 Id. at 317.

113 Id.

114 Doc. 47-2 at 11.

115 Id.

be an open line of communication between [them]” and that “there would be an

actual presentation date . . . .”117 Doe felt that the meeting was “supportive” and that

he “might have had some people on [his] side.”118

After the January 2017 meeting, the DOC held monthly meetings with Doe.119

During these later meetings, attendees instructed Doe to voice any complaints

regarding his transition.120 Attendees also asked Doe if they could do anything to

help him.121

At the March 2017 meeting, Doe asked to use a male locker room and

bathroom.122 DOC officials responded that Doe “could use the male facilities if [he]

signed the gender confirmation letter.”123 Doe confirmed that he could “use the male

facilities if [he] provided a gender confirmation date in writing.”124

In a private meeting with Major Mirarchi, Doe again asked “if there was any

progress on [his] being able to utilize the male facilities.”125 Mirarchi responded that

“we gotta get that gender confirmation letter, is what I’m being told.”126 Tiffany

117 Id. at 12.

118 Id.

119 Id. at 16, 19.

120 Id. at 16.

121 Id.

122 Id. at 19.

123 Id. at 20.

124 Id. at 24.

125 Id. at 27.

Epoca, Director at the DOC’s Office of Equal Employment Opportunity, also

counseled Doe about the “written presentation date.”127

Until Doe provided a gender-presentation date, the DOC offered Doe the

alternative of using a unisex visitors’ bathroom.128 And Doe accepted that

alternative “[f]or a period of time . . . .”129 But Doe chose “not to provide a date of

confirmation until [he had] reached a greater level of masculinity.”130

Such evidence demonstrates the DOC’s good faith. By repeatedly meeting

with Doe about his transition and requests to use male facilities, allowing Doe to use

male facilities if he provided a gender-presentation date, counseling Doe about the

gender-presentation date, and offering the unisex bathroom as an alternative until

Doe provided a gender-presentation date, the DOC made a good-faith effort to

accommodate Doe.131

127 Doc. 47-9 at 6.

128 Doc. 47-2 at 24.

129 Id.

130 Id. at 20.

131 See Soutner v. Penn State Health, 841 F. App’x 409, 415 (3d Cir. 2021) (“Soutner has failed

to show that the Hospital did not make a good-faith effort to accommodate her. Cutman

consistently met with Soutner about her absences, explained to her the Hospital’s call-off

procedures, and encouraged Soutner to apply for FMLA leave and report the absences as

FMLA. Soutner also spoke with FMLASource representatives who counseled her on the

policies and how to report her absences as FMLA.”); Petti v. Ocean Cnty. Bd. of Health, 831

F. App’x 59, 63 (3d Cir. 2020) (“In this case, assuming without deciding that Petti can make

out the first two elements of a prima facie case, the record reflects OCHD’s consistent good

faith efforts to respond to Petti’s requests regarding the safety of her workplace, given the

medical conditions she represented she had.”); Sessoms v. Trustees of Univ. of Pennsylvania,

739 F. App’x 84, 88 (3d Cir. 2018) (“Penn demonstrated good faith in its negotiations with

Sessoms. It is undisputed that her supervisors met with her, considered her requests, and

offered several accommodations, including a part-time work schedule.”); Stadtmiller v. UPMC

Health Plan, Inc., 491 F. App’x 334, 337 (3d Cir. 2012) (“In particular, upon learning of

Doe counters that requiring a gender-presentation date was unreasonable and

unduly burdensome. “The Court disagrees. The request for information itself was

part of the interactive process.”132 “After receiving a request for an accommodation,

an employer has the right and obligation to request additional information the

employer believes it needs.”133 Indeed, “[j]udgment as a matter of law in favor of

the employer has been granted in numerous decisions in which the employee failed

to respond to the employer’s requests for information.”134

The DOC believed it needed a gender-presentation date to comply with

regulations about cross-gender viewing and searches.135 It “cannot be faulted if after

conferring with the employee to find possible accommodations, the employee then

fail[ed] to supply” a gender-presentation date.136 Accordingly, the gender-

quickly responded to his requests, ensured that his requests had been fulfilled, and detailed

what he needed to do to improve his performance to meet the standard of his department.

Therefore, we agree that Stadtmiller failed to raise a material question of fact regarding

UPMC’s good faith participation in the accommodation process and that it is entitled to

judgment as a matter of law.”).

132 Hemby-Grubb v. Indiana Univ. of Pennsylvania, No. 2:06CV1307, 2008 WL 4372937, at *12

(W.D. Pa. Sept. 22, 2008) (granting summary judgment in defendant-employer’s favor).

133 Tatum v. Hosp. of Univ. of Pennsylvania, 57 F. Supp. 2d 145, 149 (E.D. Pa. 1999) (granting

summary judgment in defendant-employer’s favor), aff’d, 216 F.3d 1077 (3d Cir. 2000); see

also Taylor, 184 F.3d at 315 (“Once the employer knows of the disability and the employee’s

desire for accommodations, it makes sense to place the burden on the employer to request

additional information that the employer believes it needs.”).

134 Doyle v. Senneca Holdings, Inc., No. CV 20-1293, 2022 WL 1239501, at *5 (W.D. Pa. Apr.

27, 2022) (granting summary judgment in defendant-employer’s favor).

135 Docs. 47-7 at 7, 47-8 at 5, 47-9 at 7.

presentation date does not create a genuine dispute of material fact about the DOC’s

good-faith efforts.137

2. Male Pronouns

Doe also claims that the DOC did not accommodate his requests to use male

pronouns.138 But Doe does not adduce evidence that the DOC denied his requests to

use male pronouns.139 Instead, Doe asserts that staff and inmates misgendered him

with female pronouns.140

The Third Circuit addressed accommodation requests involving fellow

employees’ conduct in Tourtellotte v. Eli Lilly & Company.141 There, plaintiff

Tourtellotte “request[ed] to not come in contact with” a supervisor whose

inappropriate comments had caused her “extreme stress and anxiety.”142 “Lilly did

not ignore Tourtellotte’s request and did not effectively force her to return to work

137 See Doyle, 2022 WL 1239501, at *8 (“Under these circumstances, no reasonable jury could

find that Senneca was responsible for the breakdown of the interactive process or that Senneca

acted in bad faith. Senneca engaged in the good faith steps identified in Taylor. Doyle’s failure

to provide the requested medical information about his condition and his subsequent silence

caused the breakdown in the interactive process.”) (internal citation omitted); Hamza v. United

Cont’l Holdings, LLC, No. CV 19-8971 (FLW), 2021 WL 3206814, at *15 (D.N.J. July 29,

2021) (“The facts alleged in the SAC demonstrate that Defendant engaged in an interactive

process with Plaintiff and requested information it needed to process his request for disability

leave, and that Plaintiff failed to comply with those requests. Accordingly, Plaintiff has failed

to state a claim for failure to accommodate under the ADA.”).

138 See Doc. 52-1 at 13 (“According to Defendants’ own policies, no documentation is necessary

for Plaintiff’s requests for gender-appropriate name and pronoun usage to be honored. See

DOE v. PA DOC – P000025. Defendants did not accommodate Plaintiff in this respect.”).

139 See Docs. 47-2, 52-1, 52-2, 52-3, 52-4.

140 Doc. 47-2 at 30, 40.

141 636 F. App’x 831 (3d Cir. 2016).

without any accommodation.”143 “Lilly told Tourtellotte that it could not guarantee

that she would never come in contact with Rowland, and Tourtellotte has not

presented any evidence indicating that this response to Tourtellotte’s request was not

made in good faith.”144 So the Third Circuit affirmed “the finding of the District

Court granting summary judgment against Tourtellotte on this claim.”145

Here, Tiffany Epoca, Director at the Office of Equal Employment

Opportunity at the DOC, told Doe that “if the conversations elevate to the use of

derogatory terms or speech, please report this to Ms. Holt or myself.”146 And when

Doe reported that a fellow corrections officer had misgendered him, Doe’s superiors

stated that “it was [his] responsibility to redirect the officers at a minimum of twice;

and had there been a third occurrence, that [he] was to share it with Baumbach,

Mirarchi, or whomever [his] supervisor was for that day if they weren’t present, and

that they would handle the situation accordingly.”147 Doe’s superiors also assured

him that “upon the third time, it would then be taken of by – through corrective

action, if need be.”148

Such responses demonstrate that the DOC “did not ignore [Doe’s] request[s]”

to use male pronouns.149 And Doe “has not presented any evidence indicating that

143 Id. at 850.

144 Id.

145 Id.

146 Doc. 47-2 at 30.

147 Id.

148 Id.

this response to [his] request[s] was not made in good faith.”150 In the absence of

evidence to the contrary, there is no genuine dispute of material fact that the DOC

made a good-faith effort to accommodate Doe’s requests to use male pronouns.

Accordingly, Defendants’ motion for summary judgment is granted as to Doe’s

failure-to-accommodate claim.

F. Count VIII

Finally, Doe claims retaliation under the Rehabilitation Act. In RA retaliation

claims, “plaintiffs must show (1) that they engaged in a protected activity, (2) that

defendants’ retaliatory action was sufficient to deter a person of ordinary firmness

from exercising his or her rights, and (3) that there was a causal connection between

the protected activity and the retaliatory action.”151

Here, Doe does not brief the retaliation issue or respond to Defendants’

arguments against his retaliation claim.152 In the absence of evidence or arguments

to the contrary, Doe has not shown a genuine dispute of material fact regarding

retaliation.153 Accordingly, Defendants’ motion for summary judgment is granted

as to Doe’s retaliation claim.

150 Id.

151 Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).

152 Docs. 52-1, 52-2.

153 See Perkins, 412 F. App’x at 555 (“We emphasize, as did the District Court, that a court is not

obliged to scour the record to find evidence that will support a party’s claims. When parties

fail to support their claims with adequate citations to the record, they risk having those claims

rejected, as was rightly done here.”) (citation omitted); see also Diodato v. Wells Fargo Ins.

Servs., USA, Inc., 44 F. Supp. 3d 541, 556 (M.D. Pa. 2014) (“Courts within the Third Circuit

have routinely held that a non-movant’s failure to offer any response to an opposing party’s

V. CONCLUSION

James Roe is dismissed as a party. Defendants’ motion for summary

judgment is granted in part and denied in part. An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

Diodato’s breach of contract claim, as articulated in his complaint, fails to survive summary