Stein v. Wilkinson

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JENNIFER STEIN, :

Plaintiff, : CIVIL ACTION NO. 3:21-cv-0272

v. : (JUDGE MANNION)

MERRICK GARLAND, :

Attorney General,

U.S. DEPARTMENT OF JUSTICE, :

Defendant. :

MEMORANDUM

I. BACKGROUND

Pending before the court is defendant’s motion for summary judgment

under Federal Rule of Civil Procedure 56(a). (Doc. 15). On February 15,

2021, plaintiff filed a complaint against the defendant alleging a hostile work

environment (Count I) and retaliation (Count II). (Doc. 1). Defendant

answered on April 29, 2021. (Doc. 7). Fact discovery was completed on

December 31, 2021. On January 31, 2022, Defendant moved for summary

judgment. (Doc. 15). The defendant filed a brief in support on February 14,

2022. (Doc. 16). The plaintiff filed a brief in opposition to the motion for

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summary judgment on April 5, 2022. (Doc. 21). Defendant then filed a reply

brief to plaintiff’s brief in opposition on April 19, 2022. (Doc. 24).

This case arises from the events of August 8, 2017 where an encounter

between Officer Stein and Officer Eisenmann occurred at USP Canaan in

the officer’s mailroom. Officer Stein and Officer Eisenmann had a brief

relationship prior to the August 8, 2017 incident. While discussing the return

of Officer Eisenmann’s furniture, Officer Eisenmann began screaming that

Officer Stein was a “whore.” Officer Stein immediately reported the actions

of Officer Eisenmann to Lieutenant Bodge.

Plaintiff was immediately allowed to leave work to file a Protection

From Abuse Petition (“PFA”) against Officer Eisenmann. Plaintiff returned a

copy of the emergency PFA to USP Canaan on the same day, but did not

return to work. Also on the same day, Warden Baltazar convened a Threat

Assessment Committee to investigate the verbal altercation and see what

other preventive measures were needed. On August 8, 2017, the Threat

Assessment Committee interviewed Officer Eisenmann. (Doc. 17 at ¶40). On

August 16, 2017, Officer Stein was interviewed by the Threat Assessment

Committee. The Committee put forth a Personal Protection Plan (“PPP”) on

August 30, 2017.

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Officer Eisenmann was assigned to the camp at USP Canaan, which

is located approximately one mile away from the penitentiary. He was

prohibited from entering the same building as Officer Stein without contacting

his captain and receiving an escort. Officer Eisenmann was also issued a

Cease and Desist Order directing him to not have any unprofessional contact

with Officer Stein. (Doc. 17 at ¶96-98).

Under the PPP, plaintiff kept her bidded post, would not attend training

with Officer Eisenmann, and was required to report any contact with Officer

Eisenmann made with her while she was performing her official duties. (Doc.

17 at ¶110-112).

While attending court appearances, Officer Stein used her annual and

sick leave. Officer Eisenmann applied for and was granted administrative

leave to attend court appearances on August 28, 2017 and August 29, 2017.

Officer Stein later requested undetermined administrative leave because she

believed she needed leave “until safe boundaries were in place.” (Doc. 20-4

at 4).

On September 15, 2017, Officer Stein requested leave through a union

representative, which was denied. (Doc. 20-4 at 4). The union representative

stated, “they had numerous female staff that were already on admin leave

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that the warden didn’t want another one on admin leave also.” (Doc. 17-1 at

62-63 (67:19-25; 68:1-2)). On September 26, 2017, Officer Stein requested

leave from Captain Hollingsworth and was denied. (Doc. 20-4 at 5). On

September 27, 2017, Officer Stein requested administrative leave from

human resources and was denied. Warden Baltazar explained that they felt

they would be able to keep Officer Stein and Officer Eisenmann separated

and keep Officer Stein safe while at work. (Doc. 17-1 at 196 (71:9-11)).

After administrative leave was denied, Officer Stein used her sick and

annual leave time. Once this time was depleted, Officer Stein was initially

marked AWOL, but the initial marking was subsequently corrected to leave

without pay. (Doc. 17-1 at 335-36).

Officer Stein then went on leave beginning on June 14, 2018 due to an

injury she sustained at work. On June 21, 2018, Officer Stein was informed

by Associate Warden Parr that Officer Eisenmann would be brought into the

penitentiary due to staffing shortages. Officer Stein returned to work on

February 25, 2019. Officer Eisenmann would exit the incoming staff

screening room where Plaintiff was placed on light duty, but the two would

not come into contact. (Doc. 20-4 at 8).

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During March of 2019, Officer Stein sent emails to USP Canaan’s new

administration to see if anything had changed. Plaintiff met with the new

warden, Eric Bradley. (Doc. 20-4 at 8).

On October 17, 2019, Officer Eisenmann voluntarily took an overtime

shift, which put him in plaintiff’s post at USP Canaan. (Doc. 21). Plaintiff’s

Lieutenants informed her to stay in the property room. On October 24, 2019,

Officer Eisenmann again voluntarily took a post that was directly assigned

with Officer Stein. (Doc. 21). On November 8, 2019, Officer Eisenmann sent

an email to Officer Stein through the work email system regarding an

inmate’s property stating that the inmate was “released from the SHU last

week I believe and said he did not receive his property. Can you please

check and see if he has any property at all in the property room. Thank you.”

(Doc. 25).

II. DISCUSSION1

a. Hostile Work Environment Claim

1 Since defendant and plaintiff state in their respective briefs the proper legal

standard for a motion for summary judgment under Rule 56, the court will

not repeat it herein. Suffice to say that in deciding a motion for summary

judgment, the court must consider all evidence and inferences drawn

therefrom in the light most favorable to the non-moving party. See Andreoli

v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).

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Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful for

“an employer … to discriminate against any individual with respect to [her]

compensation, terms, conditions, or privileges of employment … because of

such individual’s race, color, religion, or national origin.” 42 U.S.C. §2000e-

2(a)(1). Title VII also bars “a discriminatory hostile or abusive environment.”

In re: Tribune Media Company, 902 F.3d 384, 399 (3d Cir. 2018) (quoting

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). To evaluate whether a

workplace environment is hostile or abusive, the Supreme Court has

explained that a court should look to the entire circumstances and “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.” Id. (quoting

Harris, 510 U.S. at 23).

The Third Circuit has explained that a hostile work environment claim

requires a plaintiff to show: (1) the employee suffered intentional

discrimination because she is a member of a protected class; (2) the

discrimination was severe or pervasive; (3) the discrimination detrimentally

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

reasonable person in similar circumstances; and (5) the existence of

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respondeat superior liability. Castleberry v. STI Grp., 863 F.3d 259, 263 (3d

Cir. 2017) (citing Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d

Cir. 2013)).

The Supreme Court has written that “[t]he critical issue, Title VII’s text

indicates, is whether members of one sex are exposed to disadvantageous

terms or conditions of employment to which members of the other sex are

not exposed.” Connell v. Nicholson, 318 Fed. App'x 75, 77 (3d Cir. 2009)

(internal quotation marks omitted) (quoting Oncale v. Sundowner Offshore

Servs., Inc., 523 U.S. 75, 80 (1998)).

To understand the totality of the circumstances surrounding the August

8, 2017 incident, one must be aware of several actions that occurred as a

consequence of the incident. The state court granted Officer Stein an

emergency PFA. Additionally, the defendant took several steps to prevent

further incidents at work. A Threat Assessment Committee was convened

that interviewed Officer Eisenmann and later interviewed Officer Stein. The

Threat Assessment Committee issued a PPP that would ensure separation

between the officers. Defendant confirmed that Officer Stein would keep her

bidded post at USP Canaan. Going forward, Officer Eisenmann was

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reassigned to the camp at USP Canaan, which would keep them separated

while at work.

For conditions to satisfy the “severe or pervasive” standard, the

conduct must “alter the conditions of [the employee’s] employment and

create an abusive working environment.” Moody v. Atlantic City Board of

Education, 870 F.3d 206, 214-15 (quoting Meritor Sav. Bank, FSB v. Vinaon,

477 U.S. 57, 67). “[W]hether an environment is sufficiently hostile or abusive

must be judged by looking at all 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.” Clark Cty. Sch. Dist. v.

Breeden, 532 U.S. 268, 270-71 (2001) (citation and internal quotation marks

omitted).

While sorting out her PFA, Officer Stein took sick and annual leave.

Officer Stein alleges that she was denied administrative leave while Officer

Eisenmann was permitted to take administrative leave. The defendant, for

the purpose of this motion, does not contest that Officer Stein requested

leave. Officer Stein requested administrative leave through her union

representative, Captain Hollingsworth, and from human resources. Each

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request was denied. (Doc. 24). However, the reason for Officer Stein’s

requested leave differed from Officer Eisenmann’s request in that Officer

Stein requested administrative leave “until safe boundaries were in place.”

(Doc. 20-4 at 4). Officer Eisenmann’s requested leave was to attend the court

hearings related to the state court PFA matter. Warden Baltazar explained

that plaintiff’s leave was denied because “Ms. Stein was protected inside the

penitentiary because there was a screening site” and additional safety

measures in place. (Doc. 17-1 at 196 (71:9-11)). After the August 8, 2017

incident, Officer Stein and Officer Eisenmann did not have any further verbal

or physical incidents at work. (Doc. 17 at ¶¶71, 110-112, 122; Doc. 20 at

¶¶71 110-112, 122; Doc. 20-4 at 4-5)).

The Third Circuit has explained, “in considering the totality of the

circumstances, we filter out ‘simple teasing, offhand comments, and isolated

incidents.” Kokinchak v. Postmaster General of the Unites States, 677 F.

App’x 764, 767 (3d Cir. 2017). In Kokinchak, the court explained that the

mere presence of the harasser did not create a hostile work environment

stating, “[plaintiff] ‘does not allege that [her harasser] ever touched her

sexually, was physically threatening, made lewd or inappropriate comments,

or even that [her harasser] spoke to her at all.’” Id. The court reasoned that

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with occasional and sporadic presence near the plaintiff, it could hardly be

considered severe and with the claimed incidents spanning over a few years,

could hardly be considered pervasive. “While they may have been

subjectively unwelcomed by [plaintiff],” the court explained, “an objective

person could not conclude they altered the terms and conditions of her

workplace.” Id. at 677-78.

The two occasions where Officer Eisenmann was physically present at

the workplace and one email sent from him to the plaintiff do not give rise to

the severe or pervasive conditions necessarily to establish a hostile work

environment. First, over the course of over two years, plaintiff identifies two

occasions where she was on the same shift as Officer Eisenmann. During

these two shifts, plaintiff remained separated and without contact. (Doc. 20-

4 at 9). Next, plaintiff identifies an email that Officer Eisenmann sent to her

related to an inmate being “released from the SHU last week I believe and

said he did not receive his property. Can you please check and see if he has

any property at all in the property room. Thank you.” (Doc. 25). The

frequency of the incidents occurs over a period of over two years with three

incidents being identified. The severity of the incidents is minor at best. There

was no true contact between Officer Stein and Officer Eisenmann. Officer

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Eisenmann was merely present at the same workplace as Officer Stein on

two occasions. The only form of direct contact was an email sent from Officer

Eisenmann to Officer Stein, which is not enough to show some severity or

pervasiveness.

Next, plaintiff must prove the discrimination detrimentally affected her

through subjective perception that the work environment is offensive, hostile,

or abusive. Harris, 510 U.S. at 21.

Plaintiff alleges she was detrimentally affected through the actions of

Officer Eisenmann. She claims she had to take unpaid leave from work,

attain a PFA, was forced to work with Officer Eisenmann, was removed from

special assignments and denied promotions and awards.

Next, the plaintiff must demonstrate that a reasonable person would

find the environment offensive, hostile, or abusive. Id.

A reasonable person would not find the environment offensive, hostile

or abusive. As was previously explained, having plaintiff work in proximity of

Officer Eisenmann on the two identified occasions would not lead a

reasonable person to believe the environment is offensive, hostile, or

abusive. Kokinchak, 677 F. App’x at 767-68. Officer Eisenmann’s one email

related to an inmate’s property would not lead a reasonable person to find

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the environment to be offensive, hostile, or abusive. The three limited

occasions identified by plaintiff simply do not give rise to an offensive, hostile,

or abusive environment.

Plaintiff’s claim about being required to get a PFA stems from more

than just an interaction in the workplace. The PFA served to protect plaintiff

in both her time at work and outside of work. The actions that occurred on

August 8, 2017 are not the only actions that contributed to the PFA.

Additionally, the defendant did not require plaintiff to get a PFA. Defendant

excused Officer Stein from work in order for her to be able to get an

emergency PFA.

Plaintiff states she was denied promotions and awards, but does not

identify any specific promotions or awards in her brief or answer to

defendant’s statement of material facts. (Doc. 20 and Doc. 21). Plaintiff does

not cite to anywhere in the record to support this claim.

Plaintiff was originally marked AWOL for time she took off after

depleting her sick and annual leave time. However, plaintiff’s time was

corrected to leave without pay. (Doc 17-1 at 335-36). A reasonable person

would not find plaintiff being required to take unpaid leave from work after

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depleting her sick and annual leave to take care of private state court matters

as a hostile, offensive, or abusive environment.

An employer is liable for a harassing employee when they are

negligent in controlling working conditions. Vance v. Ball State University,

570 U.S. 421, 424 (2013). Under this negligence standard, “if a plaintiff

proves that management-level employees had actual or constructive

knowledge about the existence of a sexually hostile work environment and

failed to take prompt and adequate remedial action,” then the employer is

liable for failure to adequately respond to harassment. Knabe v. Boury Corp.,

114 F.3d 407, 411 (3d Cir. 1997).

Here, on the same day that the August 8, 2017 incident took place,

Warden Baltazar convened a Threat Assessment Committee, interviewed

Officer Eisenmann within hours of the incident, and the committee later

interviewed Officer Stein. The PPP for Officer Stein took prompt and

remedial action to separate both Officer Stein and Officer Eisenmann by

placing them at different work sites and not allowing communication from

Officer Eisenmann to Officer Stein. After the PFA was modified to allow

Officer Eisenmann to work at the same site as Officer Stein, the two would

not work the same shift at the same location until February of 2019. Officer

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Eisenmann would exit the incoming employee screening room where Officer

Stein was located, but there was no contact between them. In October of

2019, Officer Eisenmann voluntarily took two shifts at USP Canaan with

Officer Stein. The two October 2019 shifts included nothing more than glares

or crossed arms. The defendant kept the two parties separate and explicitly

told Officer Stein to remain in the property room to ensure separation. The

defendant promptly and adequately addressed the situation to the point

where Officer Stein and Officer Eisenmann did not have any verbal or

physical altercations following her return to work from her injury. (Doc. 20-4

at 1-23).

b. Retaliation Claim

Title VII prohibits an employer from discriminating “against any of his

employees … because he has opposed any practice made an unlawful

employment practice by this subchapter, or because he has made a charge,

testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under this subchapter.” 42 U.S.C. §2000e-3(a). A

Title VII retaliation claims must be analyzed under the shifting framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

A plaintiff must first establish a prima facie case of retaliation, which requires

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evidence that: “(1) she engaged in activity protected by Title VII; (2) the

employer took an adverse employment action against her; and (3) there was

a causal connection between her participation in the protected activity and

the adverse employment action.” Moore v. City of Philadelphia, 461 F.3d

331, 340-41 (3d Cir. 2006) (quoting Nelson v. Upsala Coll., 51 F.3d 383, 386

(3d Cir. 1995)). Once the plaintiff establishes a prima facie case of retaliation,

the burden then shifts back onto the defendant to provide a legitimate, non-

discriminatory reason for a plaintiff’s adverse employment action. The final

step of the McDonnell-Douglas framework requires the burden then shift

back to the plaintiff “to convince the factfinder both that the employer’s

proffered explanation was false [that is pretext], and that the retaliation was

the real reason for the adverse employment action. Carvalho-Grevious v.

Delaware State University, 851 F.3d 249, 257 (3d Cir. 2017) (alteration in

original) (quoting Moore, 461 F.3d at 342)).

Here, defendant does not dispute that plaintiff engaged in protected

activity in 2014. The defendant disputes the second and third factor that

plaintiff suffered a materially adverse employment action and that there was

a causal connection between her participation in the protected activity and

the adverse employment action. First, plaintiff argues that she was denied

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administrative leave wrongfully. Plaintiff identifies language from the union

representative stating because one female was already out on paid leave

that she would be denied administrative leave. Second, plaintiff alleges she

was marked AWOL to make it appear that she did not show up for her post

and therefore generate animosity amongst her coworkers as they would

need to pick up the shift. Third, plaintiff alleges she was passed up for awards

and positions in relation to her 2014 activity. Lastly, plaintiff contends the

defendant intentionally scheduled her with Officer Eisenmann to intimidate

her and prevent her from working. Each of plaintiff’s arguments will be

addressed in turn.

Plaintiff asserts protected activity stemming from her 2014 EEO activity

and EEO activity related to the August 8, 2017 incident. The 2014 EEO

activity is too far removed from any actions in this case for there to be a

causal connection. From the 2014 incident, the three years that passed are

not “unusually suggestive of retaliatory motive.” Petti v. Ocean Cnty. Bd. of

Health, 831 F. App'x 59, 64 (3d Cir. 2020) (citing Williams v. Phila. Hous.

Auth. Police Dep't, 380 F.3d 751, 760 (3d Cir. 2004) (concluding that a gap

of over two months, taken alone, is insufficient to be “unduly suggestive” of

retaliation), superseded by statute on other grounds as stated in Robinson

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v. First State Cmty. Action Agency, 920 F.3d 182, 187-89 & n.30 (3d Cir.

2019).

This leaves the 2017 EEO activity as the sole ground to base retaliatory

activity upon. When the decision-makers are unaware of plaintiff’s protected

activity, then there can be no causal connection between the protected

activity and the resulting adverse employment action. Jones v. School Dist.

Of Phila., 198 F.3d 403, 414 (1999). Warden Baltazar and Captain

Hollingsworth were unaware of Officer Stein’s EEO activity when deciding

upon her administrative leave request. Captain Hollingsworth learned of

Officer Stein’s 2017 EEO activity on October 12, 2017 when an EEO

counselor contacted him. (Doc. 17 at ¶157; Doc. 20 at ¶157). Warden

Baltazar learned of Officer Stein’s 2017 EEO activity on October 18, 2017

when the EEO counselor contacted him. (Doc. 17 at ¶153; Doc. 20 at ¶153).

As plaintiff indicated, she requested leave from Captain Hollingsworth on

September 26, 2017, (Doc. 20-4 at 5), and requested leave from human

resources on September 27, 2017, (Doc. 20-4 at 5). Without knowledge of

the protected activity, defendant could not have retaliated against the

plaintiff. See Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir. 2002)

(explaining that “[i]t is only intuitive that for protected conduct to be a

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substantial or motiving factor in a decision, the decisionmakers must be

aware of the protected conduct”).

Plaintiff then argues that she was marked AWOL to cause discord with

her co-workers. The Supreme Court has defined adverse employment

actions as actions that “inflict[] direct economic harm.” Burlington Industries

Inc. v. Ellerth, 524 U.S. 742, 762 (1998). The Third Circuit has further defined

an adverse employment action as “serious and tangible enough to alter an

employee’s compensation, terms, conditions, or privileges of employment.”

Storey v. Bums Int’l Servs., 390 F.3d 760, 764 (3d Cir. 2004) (citations

omitted).

In this matter, there is no “direct economic harm” suffered by plaintiff.

Unhappy co-workers may not be a pleasant experience, but does not rise to

the level an adverse employment action. Additionally, plaintiff’s time was

corrected to leave without pay. (Doc 17-1 at 335-36). If the complained-of

inconvenience has been completely remedied and the correction would not

dissuade a reasonable employee from complaining about the incident, then

there is no claim of retaliation. Ponton v. AFSCME, 395 F. App’x 867, 874

(3d Cir. 2010) (finding no retaliation when employee received the requested

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route sheet and would not have been dissuaded by the incident from

complaining about unlawful conduct).

Plaintiff then asserts a vague argument that the defendant prevented

her from achieving promotions or receiving awards. Plaintiff does not indicate

in the record where or when these denials occurred. Plaintiff simply puts forth

a blanket assertion lacking support within the record. Beyond plaintiff’s mere

allegations, she offers no specific evidence of positions or awards she was

passed up for due to her protected activity. Rowan v. City of Bayonne, 474

F. App'x 875, 878 (3d Cir. 2012) (explaining that without identifying any

instances of failure to promote, the claim must fail); see also Walton v.

Harker, 33 F.4th 165, 176 (4th Cir. 2022) (explaining that plaintiff’s allegation

were not sufficient because they did not “specify any promotion for which she

applied and was denied, proffer any comparators that were given promotions

for which she was more qualified, articulate the qualifications for the position

and why she met them”). Plaintiff had ample opportunity during discover to

provide specific evidence of her claims, but plaintiff’s failure now proves fatal.

Lastly, plaintiff alleges the defendant intentionally scheduled her with

Officer Eisenmann in order to retaliate against her for her protected activity.

Plaintiff acknowledges that the defendant did not assign or schedule Officer

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Eisenmann for the October 17, 2019 shift or the October 24, 2019 shift, but

rather, Officer Eisenmann volunteered to cover these shifts. (Doc. 24). Even

had Officer Eisenmann glared at her or crossed his arms on one of these

occasions, these actions are far from being “serious and tangible enough to

alter an employee’s compensation, terms, conditions, or privileges of

employment.” Storey, 390 F.3d at 764.

Plaintiff has failed to establish a prima facie case of retaliation by the

defendant.

III. CONCLUSION

For the foregoing reasons, defendant’s motion for summary judgment,

(Doc. 15), is GRANTED.

An appropriate order follows.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATED: September 29, 2022

21-cv-272-01

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