# Irwin v. Fry Communications, Inc.

> District Court, M.D. Pennsylvania · February 13, 2023

URL: https://www.frixlaw.com/law-library/cases/10412807

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** February 13, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KATHRYN IRWIN, : Civil No. 1:21-CV-00186
:
Plaintiff, :
:
v. :
:
FRY COMMUNICATIONS, INC., :
:
Defendant. : Judge Jennifer P. Wilson
MEMORANDUM
Before the court is a motion for summary judgment filed by Defendant
seeking judgment in its favor on all three counts in Plaintiff’s complaint.
(Doc. 34.) Based on the undisputed facts, Plaintiff fails to bring prima facie
claims. For the reasons that follow, the court will grant the motion.
FACTUAL AND PROCEDURAL BACKGROUND1
Plaintiff, Kathryn Irwin (“Irwin”), has brought this suit against her former
employer, Defendant, Fry Communications, Inc. (“Fry”), raising claims of
discrimination against Fry under federal and state law. (Doc. 1.) Irwin worked for
Fry from December 14, 1999, until about October 2018. (Doc. 35, ¶ 4.) In 2018,
she worked as a Saddle Operator in Fry’s bindery department. (Id. ¶ 5.) Saddle

1 In considering the instant motion for summary judgment, the court relied on the uncontested
facts. Where facts were disputed, the court viewed the facts in the light most favorable to the
nonmoving party and has drawn all inferences in favor of the nonmovant, pursuant to the
relevant standard for deciding a motion for summary judgment. See Doe v. C.A.R.S. Protection
Plus, Inc., 527 F.3d 358, 362 (3d Cir. 2008).
Operators generally worked in Fry’s Building 4 but might also be assigned on a
given day to work on “co-mail” machines in Fry’s adjacent Building 5. (Id.)

On June 13, 2018, Irwin was assigned to her usual assignment—the M-8
Binder machine in Building 4. (Id. ¶ 6 & n.1.) That day, David King (“King”),
was assigned to assist Irwin in her responsibilities. (Id. ¶ 7.) King usually worked

in Building 5 as a co-mail assistant on a different schedule than Irwin. (Id. ¶ 8.)
King had trouble keeping up, which markedly slowed Irwin’s progress. (Id. ¶ 10;
Doc. 36-2, pp. 25–26.)2 King looked sick, had a bad attitude, and kept saying “this
is bullshit.” (Id.) Irwin, aware that management would not be happy about her

slow progress, twice notified Mike Vaughn (“Vaughn”), a day-shift floor
supervisor, of King’s pace. (Doc. 35, ¶¶ 5, 11; Doc. 36-2, p. 26.)
At Vaughn’s direction, Irwin told King to report to the supervisor’s office.

(Doc. 35, ¶¶ 12, 13.) Upon reporting to the supervisor’s office, King was told to
go home for the day. (Id. ¶ 14.) Returning from the supervisor’s office to his
workstation, King was very upset. He picked up bolts, small pieces of metal, and a
tape dispenser from the workstation and threw them in all directions. (Doc. 36-2,

pp. 27–28.) He even threw his lunchbox and drink. (Id. at 27.) Before leaving,
King threatened to punch Irwin in the face and twice told her to “suck his dick.”
(Id.) After the incident, Irwin finished her shift. (Doc. 35, ¶ 16.) Later that day,

2 For ease of reference, the court utilizes the page numbers from the CM/ECF header.
Irwin told Vaughn about the incident. (Doc. 36-2, p. 29.) Vaughn relayed the
incident to the other day-shift floor supervisor, Jeff Langland (“Langland”), and

the department manager, Mick Hutchinson (“Hutchinson”). (Doc. 35, ¶¶ 5, 17.)
The next day, Irwin, to ensure she did not get into trouble for her low
numbers the day before, told Langland about the incident with King. (Doc. 36-2,

p. 30.) When Langland inquired, Irwin told him that she did not want to get King
in trouble. (Doc. 35, ¶ 18.) But she stated that she did not want to work with King
anymore. (Id. ¶ 19.) Irwin also told Hutchinson about the incident and that she did
not want to work with King again. (Id. ¶¶ 20–21.)3 Hutchinson asked Irwin if she

wanted to submit a complaint. (Id. ¶ 22.) Irwin replied that she did not—that,
years before, she had filed a complaint “and nothing came out of it.” (Doc. 36-2,
p. 32.)4 Irwin also told Hutchinson that she did not want to get King, or anybody,

in trouble.
After Irwin’s incident with King, she was never scheduled to work with him
again. (Doc. 35, ¶ 24.) But on October 22, 2018, when Irwin clocked in and
checked the schedule, she saw she was assigned to a co-mail machine in

3 Irwin states that Hutchinson told her that she would not have to work with King again.
(Doc. 36-2, p. 33.) Hutchinson testified that he agreed to do what he could, but, without an
official investigation, he could not guarantee that she would not have to work with King.
(Doc. 36-4, p. 21.)

4 According to Irwin’s deposition, this relates to a 2002 or 2003 incident. (Doc. 36-2, p. 32.)
There is no indication that this complaint pertained to King.
Building 5. (Id. ¶ 26.) On seeing that she was assigned to work in Building 5,
Irwin spoke with Vaughn to see if there had been any changes in the schedule. (Id.

¶ 29; Doc. 36-2, p. 37.) Vaughn told Irwin she was assigned to Building 5 and,
Irwin testified, she told Vaughn there was an agreement that she would not have to
work near King. (Doc. 36-2, p. 37.) Irwin testified that she did not mention King

further but repeatedly asked Vaughn if she could work in Building 4 instead;
Vaughn directed her to report to Building 5. (Doc. 36-2, p. 37; Doc. 35, ¶ 29.)
Instead, Irwin clocked out and left without telling anyone or getting her timecard
signed. (Doc. 35, ¶ 32.) King was not scheduled to work on October 22, 2018,

and he was not on the premises. (Id. ¶ 27.) Irwin admits she did not check the
schedule to see if King was working that day. (Id. ¶ 28.) She alleges that she left
without getting approval, notifying her supervisor, or getting her timecard signed

because she began having a panic attack at the prospect of working with King.
(See id. ¶ 32.)5
The next day, Hutchinson asked Irwin why she had left work the day before
without telling anyone. (Doc. 35, ¶ 33.) According to Irwin, she reminded

Hutchinson that he had promised she would not have to work with King.
(Doc. 36-2, p. 40.) At this time, Irwin appeared not to have told Hutchinson, or

5 In apparent conflict, Irwin’s testimony suggests that her panic attack began only after she had
clocked out without gaining approval or providing notice. (See Doc. 36-2, p. 38.)
anyone else, about her panic attack. At no time had she expressed any remorse for
her leaving work at the beginning of her shift without notifying anyone. (Doc. 35,

¶ 39.) Hutchinson informed Irwin that she was not to return to work pending an
investigation of her conduct the day before. (Id. 35; Doc. 37-2, ¶ 35.)
On October 24, 2018, Fry’s Human Relations Manager, Kim Boylan

(“Boylan”), spoke with Irwin by phone. (Doc. 35, ¶ 5; Doc. 36-3, p. 6.) Irwin told
Boylan she had left work on the date in question due to an anxiety attack. (Doc.
36-3, p. 6.) When asked why she had consulted neither the schedule nor
Hutchinson, who made the schedules, to see if King was working, Irwin replied

that she did not know. (Id.) A few days later, Fry terminated Irwin’s employment.
(Doc. 35, ¶ 4; Doc. 36-2, p. 40.)
Irwin filed the three-count complaint bringing this action on February 3,

2021. (Doc. 1.) First, the complaint raises a claim for retaliation in violation of 42
U.S.C. § 2000e, et seq., “Title VII” (Count I). (Id. ¶¶ 30–37.) Next, it raises a
claim for disparate treatment under Title VII, alleging that Fry, by firing Irwin,
treated Irwin differently than other employees on account of her sex (Count II).

(Id. ¶¶ 38–42.) Finally, it raises these same claims under the Pennsylvania Human
Relations Act, “PHRA” (Count III). (Id. ¶¶ 43–48.)
On March 9, 2021, Fry filed a motion to dismiss, which the court denied on

November 11, 2021. (Docs. 8, 24.) Fact discovery closed on May 31, 2022, and
on June 30, 2022, Fry filed this motion for summary judgment. (Docs. 31, 34.)
The motion has been briefed and is ripe. (Docs. 35, 36, 37, 38.) On August 10,

2022, the court stayed all trial-related case management deadlines pending the
resolution of this motion. (Doc. 39.)
JURISDICTION
Because this case raises a question under federal law through Title VII, the

court has original jurisdiction over this case under 28 U.S.C. § 1331. The court has
supplemental jurisdiction over the state law claim under 28 U.S.C. § 1367, and
venue is appropriate under 28 U.S.C. § 1391.

STANDARD OF REVIEW
A court may grant a motion for summary judgment when “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is material if resolution of

the dispute “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is
not precluded by “[f]actual disputes that are irrelevant or unnecessary.” Id. “‘A

dispute is genuine if a reasonable trier-of-fact could find in favor of the
nonmovant’ and ‘material if it could affect the outcome of the case.” Thomas v.
Tice, 948 F.3d 133, 138 (3d Cir. 2020) (citation omitted).
In reviewing a motion for summary judgment, the court must view the facts
in the light most favorable to the non-moving party and draw all reasonable

inferences in that party’s favor. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288
(3d Cir. 2018) (citing Scheidemantle v. Slippery Rock Univ. State Sys. of Higher
Educ., 470 F.3d 535, 538 (3d Cir. 2006)). The court may not “weigh the evidence”

or “determine the truth of the matter.” Anderson, 477 U.S. at 249. Instead, the
court’s role in reviewing the facts of the case is “to determine whether there is a
genuine issue for trial.” Id.
The party moving for summary judgment “bears the initial responsibility of

informing the district court of the basis for its motion, and identifying 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.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The non-moving party must then
oppose the motion, and in doing so “‘may not rest upon the mere allegations or
denials of [its] pleadings’ but, instead, ‘must set forth specific facts showing that

there is a genuine issue for trial. Bare assertions, conclusory allegations, or
suspicions will not suffice.’” Jutrowski, 904 F.3d at 288–89 (quoting D.E. v. Cent.
Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir. 2014)).
Summary judgment is appropriate where the non-moving party “fails to
make a showing sufficient to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. “The mere existence of a scintilla of evidence in support
of the plaintiff’s position will be insufficient; there must be evidence on which the

jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “Where
the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

DISCUSSION
Fry argues that Irwin has failed to establish prima facie claims for disparate
treatment and retaliation. It argues that the former fails for lack of direct or
indirect evidence of discrimination and the latter for lack of the requisite protected

conduct. (Doc. 36, pp. 13–17, 19–24.) In the alternative, Fry argues that Irwin’s
prima facie claims fail because she cannot show that Fry’s legitimate non-
discriminatory reason for terminating her employment was pretextual. (Id. at 17–

19, 25–26.)
A. Irwin’s allegations do not raise a prima facie claim for disparate
treatment.6
As Fry notes in its brief, 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,
sex, or national origin.” (Id. at 13 (quoting 42 U.S.C. § 2000e-2(a)(1)).) Under
Third Circuit precedent, a plaintiff bringing a claim under the burden-shifting
framework of Title VII may “present either direct or indirect evidence to prove that

she was subjected to unlawful discrimination.” Pivirotto v. Innovative Sys., Inc.,
191 F.3d 344, 342 n.4 (3d Cir. 1999) (citation omitted).
Absent direct evidence of discrimination, Irwin must show what the court in

Pivirotto called “indirect evidence” and what the court in Jones, 198 F.3d at 413,
called “circumstantial evidence” of discrimination. Claims supported by
circumstantial evidence are governed by the McDonnell Douglas burden-shifting
framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The

McDonnell Douglas analysis follows three stages. First, the plaintiff must
establish a prima facie claim. Jones, 198 F.3d at 410. Second, if the plaintiff
establishes a prima facie claim, the burden shifts to the defendant “to articulate

6 The standard for disparate treatment and retaliation claims are the same under Title VII and the
PHRA. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 409 (3d Cir. 1999). Therefore, although
Irwin’s claims span three counts in her complaint, the court treats them as two claims—one for
disparate treatment and one for retaliation.
some legitimate, nondiscriminatory reason for the employee’s rejection.” Id.
Third, and finally, if the defendant provides such reason, the plaintiff must prove

by a preponderance of the evidence that the defendant’s legitimate and
nondiscriminatory reason is a pretext for discrimination. Id.
To establish a prima facie case of sex discrimination at the first step of the

McDonnell Douglas framework, a plaintiff must show four elements: “(1) she is a
member of a protected class; (2) she was qualified for the position in question; (3)
she suffered an adverse employment action; and (4) that adverse employment
action gives rise to an inference of unlawful discrimination.” Tourtellotte v. Eli

Lilly & Co., 636 F. App’x 831, 842 (3d Cir. 2016) (citing Jones, 198 F.3d at
410−11). A plaintiff may satisfy the fourth element by providing “comparator
evidence showing that similarly situated individuals who are not members of the

protected class were treated more favorably.” Loving v. FedEx Freight, Inc., No.
3:18-CV-508, 2020 WL 2306901, at *8 (M.D. Pa. May 8, 2020) (citing Durst v.
City of Phila., 798 F. App’x 710, 713 (3d Cir. 2020)). Such similarly situated
comparators “must be similarly situated in all relevant respects.” Id. (quoting

Wilcher v. Postmaster Gen., 441 F. App’x 879, 881–82 (3d Cir. 2011)).
In addressing Irwin’s prima facie claim, the parties’ dispute is limited to the
fourth element. Fry argues that there is no direct or circumstantial evidence to

suggest that Irwin’s firing gives rise to an inference of discrimination. (Doc. 36,
pp. 13–17.) Specifically, it argues that Irwin has failed to identify any appropriate
comparators—employees who engaged in similar conduct but were treated

differently—from which to infer disparate treatment. (Id. at 14–17.)
Fry points out that, to be a similarly situated comparator, a person “must
have dealt with the same supervisor, have been subject to the same standards and

have engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of
them for it.” (Id. at 15 (quoting Ogden v. Keystone Resid., 226 F. Supp. 2d 588,
603 (M.D. Pa. 2002)).) Here, Fry asserts that Irwin’s firing resulted from

insubordinate conduct so brazen that no other employees had done the same. (Id.;
Doc. 35, ¶ 54; Doc. 36-4, p. 23.) Fry also submits that other employees who had
left their shift early, at the very least notified their supervisors of their departure.

(Doc. 35, ¶ 55; Doc. 36-4, p. 23–24.) In every instance, Fry asserts, and its
department manager has testified, these employees have expressed remorse and,
because of their conduct, were issued a written warning, suspended, or suspended
pending termination. (Doc. 35, ¶ 56; Doc. 36-4, p. 24.)

In her brief, Irwin asserts that she observed male co-workers “walk off the
job without permission [and] not be terminated despite conducting the same
‘offense.’” (Doc. 37-3, p 9.) To support this, Irwin points to five comparators.

She concedes that four of the five were dissimilar insofar as they had a different
supervisor, different level of experience or seniority, or engaged in different
conduct. (Doc. 37-2, ¶¶ 48–50, 53; Doc. 36-2, pp. 44–45.) But Irwin alleges that

the remaining one, Myers, walked off the job without being terminated.
(Doc. 37-2, ¶¶ 52.)
Irwin’s allegations about Myers are not supported by evidence. During her

testimony, Irwin admitted that she did not know whether he had permission to
leave work early. (Doc. 36-2, p. 45.) Nor did she know whether he told his
supervisor when he left early. (Id.) Her only basis for alleging that Myers engaged
in similar conduct was that she witnessed him leave early and did not get his

timecard signed. (Id.)
While an affidavit based on personal knowledge setting forth “specific facts
that reveal a genuine issue of material fact” is sufficient to defeat summary

judgment, “conclusory, self-serving affidavits are insufficient to withstand a
motion for summary judgment.” Paladino v. Newsome, 885 F.3d 203, 208 (3d Cir.
2018) (quoting Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161
(3d Cir. 2009)). Irwin’s testimony is the latter, and she has failed to set forth

sufficient facts to support her allegations.
Because Irwin has not provided any evidence of similarly situated
individuals who received disparate treatment, she has failed to establish an

inference of unlawful discrimination. Failing to establish this fourth element, she
does not raise a prima facie claim of disparate treatment. Therefore, Fry is entitled
to summary judgment for this cause of action.

B. Irwin’s allegations do not raise a prima facie claim of retaliation.
Raising a prima facie case for retaliation requires a plaintiff to show three
elements: (1) she engaged in protected activity, (2) the defendant took an adverse
action against the plaintiff, and (3) there was a causal connection between the

protected activity and the adverse action. Moody v. Atl. City Bd. of Educ., 870 F.3d
206, 220 (3d Cir. 2017).
To engage in a protected activity, that is to establish the first element, the

plaintiff must “hold an objectively reasonable belief, in good faith, that the activity
they oppose is unlawful under Title VII.” Moore v. City of Phila., 461 F.3d 331,
341 (3d Cir. 2006). In interpreting the statute, the Supreme Court instructs that
Title VII is not meant to be a “general civility code.” Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998) (citation omitted). It does not ban all physical or
verbal harassment at work, but instead only prohibits discrimination on the basis of
sex. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998). The Court has

not held that harassment, even between different sexes, is automatically workplace
discrimination simply because the words “have sexual content or connotations.”
Id. Instead, the “critical issue” 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.” Id. (citation omitted). In other words, “[v]erbal and
physical harassment, no matter how unpleasant and ill-willed, is simply not

prohibited by Title VII if not motivated by the plaintiff's gender . . . .” Shramban
v. Aetna, 262 F. Supp. 2d 531, 536 (E.D. Pa. 2003) (citation omitted), aff’d 115 F.
App’x 578 (3d Cir. 2004).

Other jurisdictions have concluded that, to satisfy the first element of a
retaliation claim, a plaintiff must allege more than sexually explicit remarks.
Rather, the remarks must support a reasonable inference that they “were directed at
[the plaintiff] on account of [her] gender. Although explicit sexual content or

vulgarity may often take a factfinder a long way toward concluding that harassing
comments were in fact based on gender . . . this need not necessarily be the case.”
Johnson v. Hondo, Inc., 125 F.3d 408, 412 (7th Cir. 1997) (citation omitted).

Courts have noted that at the summary judgment stage, vulgar outbursts where an
employee tells another to “suck my dick” may be viewed as “expressions of
animosity” instead of sexual harassment if there are no additional facts to suggest
that the comment was motivated by the plaintiff’s gender or sex. Id.; see also

Farra v. Gen. Motors Corp., 163 F. Supp. 2d 894, 908 (S.D. Ohio 2001).
In the present case, Irwin contends that her incident with King was sexual
harassment and that her reporting it to her managers and supervisors constitutes a
protected activity. (Doc. 37-3, p. 13.) Irwin’s assertions are conclusory. They do
not rely on legal support either for underlying principles or factual similarities.7

Viewing the undisputed facts in the light most favorable to the nonmoving
party, the court concludes that Irwin has failed to show that she was engaged in an
activity protected by Title VII. She alleges that King made two sexually explicit

remarks. But, from the record, there is insufficient evidence for a jury to
reasonably conclude that Irwin held a reasonable good faith belief that King’s
inappropriate outburst resulted from her sex. Instead, the evidence clearly shows
that King’s actions arose from animus toward Irwin because she reported him to a

supervisor. Regarding Irwin’s retaliation claim, there is no genuine issue of
material fact and Fry is entitled to judgment as a matter of law.
CONCLUSION
For the reasons stated herein, the court will grant Defendant’s motion for

summary judgment on all counts. An appropriate order will issue.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Court Judge
Middle District of Pennsylvania

Dated: February 13, 2023

7 Irwin, in passing, asserts other conclusions of fact and legal theories, but they are equally
unsupported by fact and law. (See Doc. 37-3, pp. 11, 13–14.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10412807. Public record. Not legal advice.