M. Danner v. The Attorney General of the United States

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

THERESA ANN M. DANNER, No. 4:20-CV-00675

Plaintiff, (Chief Judge Brann)

v.

MERRICK GARLAND, ATTORNEY

GENERAL, et al.,

Defendants.

MEMORANDUM OPINION

MAY 19, 2023

Plaintiff Theresa Danner has sued her former employer, the Federal Bureau

of Prisons, as well as the Attorney General of the United States and the Department

of Justice, alleging sexual discrimination and retaliation. According to Danner, she

experienced harassment and a hostile work environment and then suffered reprisals

for reporting the offending conduct: a supervisor propositioned her via text

message on a work trip and she was then subjected to unwarranted investigations,

unjustly penalized in her performance evaluations, and ignored by various Human

Resources and psychology personnel. These allegations, if true, would be

distressing. But the evidence does not support Danner’s claims. Moreover, the suit

itself is untimely. Accordingly, the Court grants summary judgment in favor of the

Defendants.

I. BACKGROUND

A. Factual Background

From May 2010 until her retirement in October 2016, Danner worked for the

Federal Bureau of Prisons (“BOP”) as a GS-8, Special Investigative Services

Technician at the United States Penitentiary Lewisburg in Lewisburg,

Pennsylvania (“USP-Lewisburg”).1 Danner had several immediate supervisors,

including her Special Investigative Supervisor, Lieutenant Daniel Knapp.2 And

both Danner and Lt. Knapp reported directly to Special Investigative Agents

(“SIAs”) Suzanne Heath and James Fosnot.3

According to Danner, starting with an incident involving Lt. Knapp in

August 2015, she experienced discrimination, harassment, retaliation, and a hostile

work environment at the hands of USP-Lewisburg officials until she retired the

following October.4 A summary of the relevant events follows.

1. Incident in Las Vegas

In early August 2015, Danner and Lt. Knapp were in Las Vegas, Nevada for

a week-long, work-related training event.5 On the night of August 11, Lt. Knapp

1 Doc. 26-20 (T. Danner Affidavit by Interrogatory) at 22, 31.

2 Id. at 22.

3 Id.; see also Doc. 26-14 (May 17, 2016, S. Heath Interview Tr.) at 229:6–25; Doc. 26-15 (May

16, 2016, J. Fosnot Interview Tr.) at 268:1–15, 269:8–19.

4 See Doc. 29 (Danner Statement of Material Facts).

5 Doc. 26-8 (Mar. 23, 2016, T. Danner Interview Tr.) at 90:10–91:14.

sent Danner several suggestive text messages, asking her if she wanted to have a

“night cap.”6 Danner declined this offer.7

According to Danner, she considered the messages “hostile and abusive.”8

That said, she did not “inform or complain” to Lt. Knapp that she felt

uncomfortable and considered the messages “sexual harassment,” and likewise did

not immediately raise the issue with any other “management official” at

USP-Lewisburg.9

2. Investigations into Danner’s Workplace Conduct

Around the same time, BOP officials at USP-Lewisburg conducted two

separate investigations into Danner’s conduct at the prison.

First, Danner alleges that she was investigated for “having a sexual

relationship” with one of her co-workers.10 Specifically, while Danner was at the

training event in Las Vegas, BOP staff members went into Danner’s office to “look

for a video that [Danner] was supposed to have given” to either the legal

department or disciplinary hearing department at USP-Lewisburg “prior to her

leaving for [the] training.”11 The BOP employees searching for the video came

across a notebook in Danner’s office that included discussions “about having sex at

6 Id.; see also Doc. 26-9 (August 11, 2015, Danner-Knapp Text Exchange) at 115.

7 Id.

8 Doc. 30 (Danner Opp.) at 14.

9 Doc. 26-8 (Mar. 23, 2016, T. Danner Interview Tr.) at 91:4–20.

10 Doc. 26-7 (Sept. 11, 2015, T. Danner Letter to USP-Lewisburg Human Resources) at 40.

11 Doc. 26-26 (May 17, 2018, A. Hartman Interview Tr.) at 186:6–14.

work and giving oral sex.”12 The writing in the notebook was “in [Danner’s]

handwriting and somebody else’s”—whether “an inmate” or “a staff member,” it

“was not known.”13

Because the BOP employees’ supervisor was away from the prison

(incidentally, at the training in Las Vegas with Danner), they reported the notebook

to the Associate Warden at USP-Lewisburg.14 The Associate Warden directed the

BOP employees to report the notebook to their supervisor when he or she returned

from the Las Vegas training and, in the meantime, to “check some video footage”

at the prison from the weekend prior to the Las Vegas trip to determine why

Danner was at the facility those days.15 No further action was taken:

USP-Lewisburg staff did not conduct a formal investigation into, or make a referral

to the BOP’s Office of Internal Affairs or Office of the Inspector General

regarding, whether Danner engaged in a sexual relationship with a co-worker.16

12 Id. at 186:14–20.

13 Id. at 187:6–18.

14 Id. at 186:20–187:6.

15 Id. at 187:6–18; see also Doc. 26-22 (May 17, 2018, J. Fosnot Interview Tr.) at 100:7–102:4

(explaining how the Associate Warden “had given the [BOP employees] consent to—to see

why [Danner] was in the institution, what she was doing. So I came in to review the video

footage and that following Monday I asked [Danner] for a memo on why she was in this

institution because some of the exec[utive] staff wanted to know why my [supervisee] was in

the institution from 10:30 to 1:00”).

16 See Doc. 26-22 (May 17, 2018, J. Fosnot Interview Tr.) at 104:22–105:9 (explaining “there

was no investigation [into Danner] for having sex with a co-worker” and there was no “referral

for one”); see also Doc. 26-21 (D. Ebert Affidavit by Interrogatory) at 77 (“21. Did you refer

[Danner] for an internal investigation accusing her of having a sexual relationship with a co-

worker as alleged? A. No.”).

Second, USP-Lewisburg staff investigated allegations that Danner allowed

inmates who were forbidden by policy from interacting with each other to be in an

office together without any physical restraints.17 On September 3, 2015, after

learning about Danner’s alleged violation, the USP-Lewisburg Warden and

executive staff reassigned Danner to the facility’s Command Center.18 According

to SIA Fosnot—Danner’s supervisor at the time—the Warden and executive staff

“did not want [Danner] around inmates” until after an investigation was completed

and they “figure[d] out what was going on.”19 To that end, the Warden, David

Ebbert, referred Danner to the BOP’s Office of Inspector General for an internal

investigation.20

3. Initial Complaint of Harassment

On September 11, 2015, Danner sent a memorandum to USP-Lewisburg’s

Assistant Human Resources Manager, Regina Moscarello, titled

“Harassment/Hostile Work Environment.”21 In the memo, Danner reported

17 See Doc. 26-22 (May 17, 2018, J. Fosnot Interview Tr.) at 105:12–21 (“[Q.] Did you reassign

[Danner] to the Command Center on time out and deliberate idling on September 3, 2015, as

alleged? [A.] She was reassigned by the Warden and the executive staff, yes. [Q.] If so, why

was she reassigned? [A.] Until we—the investigation has happened, there was an alleged

involvement with inmates, and until we could figure out what was going on we did not want

her around inmates.”); see also Doc. 26-21 (D. Ebert Affidavit by Interrogatory) at 78 (“32.

When did you assign [Danner] to the Command Center and for how long? A. When it was

alleged she violated policy and allowed inmates from different Special Management Unit

(SMU) phases to interact. These inmates were allegedly unrestrained. That was September 3,

2015.”).

18 See Doc. 26-17 (Sept. 3, 2015, Notification of Change in Work Assignment).

19 Doc. 26-22 (May 17, 2018, J. Fosnot Interview Tr.) at 105:12–21.

20 Doc. 26-21 (D. Ebbert Affidavit by Interrogatory) at 80.

21 Doc. 26-7 (Sept. 11, 2015, T. Danner Letter to USP-Lewisburg Human Resources).

“in-house harassment she was being subjected to,”22 highlighting both the

investigation into her alleged sexual relationship with a co-worker and the

subsequent investigation into the incident with inmates who were prohibited from

interacting with one another.23 Danner noted “how ironic it was that in [her] first

[fifteen] years in the Bureau [she had] never been under investigation [and] now

there have been [two] in a few weeks of each other.”24 She described feeling

“railroaded.”25 She did not, however, mention anything about the unsolicited and

unwanted text messages from Lt. Knapp.26

4. Negative Performance Evaluations

The following week, on September 18, 2015, Danner received employee

performance ratings from SIA Heath.27 In addition to two “Successful” ratings and

one “Excellent” rating, Danner received three “Minimally Satisfactory” ratings

(the second lowest possible rating, above only “Unsatisfactory”).28 Danner’s

22 Doc. 1 (Compl.) ¶ 28; see also Doc. 29 (Danner Statement of Material Facts) ¶ 15 (“[Danner]

reported the in-house harassment and hostile work environment to Human Resources on

September 11, 2015.”).

23 Doc. 26-7 (Sept. 11, 2015, T. Danner Letter to USP-Lewisburg Human Resources).

24 Id. at 42–43.

25 Id. at 43.

26 See id.

27 See Doc. 26-11 (Sept. 18, 2015, T. Danner Employee Evaluation).

28 Id.; see also Doc. 26-12 (Oct. 3, 2014, T. Danner Annual Performance Review) (detailing the

“Element Rating Scale” for employee performance, which outlines five possible ratings:

(1) Outstanding, (2) Excellent, (3) Achieved Results, (4) Minimally Satisfactory, and

(5) Unsatisfactory).

employee performance evaluation form provides the following explanation for her

“Minimally Satisfactory” ratings:

On September 9, 2015, [SIA Heath] discovered you were

not placing Use of Force Videos and incident videos

(evidence) into an SIS safe or evidence vault as required

by P1380.05. This is a Vital function. Instead, these pieces

of evidence were found in your office not properly stored.

Furthermore, these videos did not have an evidence

recovery log loaded into TRUINTEL, also required. You

were responsible for ensuring this vital function was

completed.29

Danner asserts that she received the “Minimally Satisfactory” ratings

“because [she] complained about her office.”30 SIA Heath has disputed this.31

According to SIA Heath, when she issued Danner the “Minimally Satisfactory”

ratings for failing to store and log Use of Force and incident videos, she was not

aware of Danner’s September 11, 2015, memorandum to Human Resources.32

Instead, SIA Heath emphasized that she issued the “Minimally Satisfactory”

29 Doc. 26-11 (Sept. 18, 2015, T. Danner Employee Evaluation) at 148–50.

30 Doc. 29 (Danner Statement of Material Facts) ¶ 20.

31 See Doc. 26-14 (May 17, 2016, S. Heath Interview Tr.) at 237:19–25 (“[Q.] Do you agree or

disagree with [Danner’s] claim that she was discriminated against based on her sex (female)

and reprisal when on September 18, 2015, her quarterly evaluation was lowered because she

reported the harassment and hostile work environment to management? [A.] Absolutely not.”).

32 See id. at 236:24–237:13 (“[Q.] Did [Danner] inform you or complain to you that on September

11, 2015, she reported the harassment and hostile work environment to management? [A.] No.

[Q.] Did anyone in [Danner’s] work group or outside the work group inform you [Danner] felt

she was in a hostile work environment when she reported to management on September 11,

2015? [A.] No. [Q.] Okay. Was the Agency aware of [Danner’s] claim that she reported the

harassment and hostile work environment to management on September 11, 2015? [A.] I have

no idea what the date was.”).

ratings because Danner “flat out wasn’t doing her job that she’s required to do,”

describing Danner’s actions as an “egregious failure.”33

Danner offers no evidence establishing that SIA Heath was aware of the

September 11, 2015 memorandum when she issued the “Minimally Satisfactory”

ratings.34 She likewise has not refuted the substance of the criticism underlying the

poor performance evaluation.35

Moreover, there is no indication that the “Minimally Satisfactory” ratings

had any effect on her compensation or employment status. Indeed, despite the

negative performance reviews, Danner received an “Outstanding” rating—the

highest possible rating—for the full year 2015.36

5. Equal Employment Opportunity Complaint

On September 23, 2015, Danner filed a complaint with the BOP’s Equal

Employment Opportunity (“EEO”) Program, asserting “[r]eprisal for reporting

harassment / hostile work environment on September 11, 2015.”37 When asked to

“describe what happened,” Danner noted that “SIA Heath provided me with [three

‘Minimally Satisfactory’ ratings] for my quarterly evaluation.”38 Separately,

Danner wrote that “[o]n August 11, 2015, while on training I received sexually

33 Id. at 232:5–20, 237:17–18.

34 See Doc. 29 (Danner Statement of Material Facts).

35 Id.

36 See Doc. 26-16 (USP Lewisburg SIS Technician Ratings for 2015).

37 Doc. 26-6 (Sept. 23, 2015, T. Danner Request for EEO Counseling) at 25.

38 Id. at 26.

harassing texts from Lt. Daniel Knapp.”39 This was the first time that Danner

reported the incident involving Lt. Knapp to officials with the BOP.40

6. Alleged Retaliation

According to Danner, after she filed the EEO Complaint, various BOP

officials at USP-Lewisburg retaliated against her.

First, Danner asserts that the prison’s Human Resources staff refused to

respond to her September 11, 2015, memo, noting that “no one in Human

Resources would answer the phone from any of the extensions in the [C]ommand

[C]enter” and that they similarly “repeatedly ignore[d] [her] emails.”41 Regina

Moscarello, the Assistant Human Resource Manager at USP-Lewisburg who

received the September 11, 2015, memo, denied this allegation.42 According to

Ms. Moscarello, she and Danner had multiple conversations before Danner filed

the memo, including a discussion “about the claim [Danner] wanted to make and

on how to make it,” and that she informed Danner that “once [she] received

[Danner’s] official written information,” she would “have [the] claim[] reviewed,”

but that their “discussions would be limited.”43 That said, Ms. Moscarello stated

39 Id.

40 See Doc. 26-8 (Mar. 23, 2016, T. Danner Interview Tr.) at 95:7–10.

41 Doc. 26-20 (T. Danner Affidavit by Interrogatory) at 34; see also Doc. 29 (Danner Statement

of Material Facts) ¶ 26 (“[The] Assistant Human Resource Manager at USP Lewisburg, Regina

Moscarello, refused to assist [Danner] after becoming aware of [Danner’s] situation.”).

42 See Doc. 26-25 (R. Moscarello Affidavit by Interrogatory) at 156–58.

43 Id. at 157; see also Doc. 26-20 (T. Danner Affidavit by Interrogatory) at 34 (“But, after I sent

the [September 11, 2015] memorandum to [Ms. Moscarello] I tried contacting her again and

that she “later contacted [Danner] by phone” and “informed her that since she was

already removed from the individuals she made a claim against, and she had no

e-mail contact with [those] individuals, there was nothing else [USP-Lewisburg]

Management needed to do at the time.”44

Second, Danner claims that although she was referred to a BOP Chief

Psychologist through the Employee Assistance Program, the Chief Psychologist

“never contacted [her] or even approached [her] when, once a month, his team

would meet in the Command Center where [she] was assigned.”45 In an Affidavit

by Interrogatory addressing her concerns, Danner did not attribute the lack of

response to her initial complaint of harassment on August 11 or her September 23

EEO Complaint; instead, she stated, “I believe I was just not important enough for

him to deal with,” postulating that “[m]aybe [the Chief Psychologist] just didn’t

think a female needed the help.”46

Third, Danner contends that her new supervisor in the prison’s Command

Center, Emergency Preparedness Officer Lynn Hunter, gave her the “cold

all she would say was because of her position as the Human Resources Assistant Manager,

now that I have read the memo I cannot talk about it with you, you understand.”).

44 Doc. 26-25 (R. Moscarello Affidavit by Interrogatory) at 157.

45 Doc. 26-20 (T. Danner Affidavit by Interrogatory) at 36. In her EEO Complaint, Danner stated

that Emergency Preparedness Officer Lynn Hunter reached out to the Chief Psychologist on

September 11, 2015. Id. But in her Statement of Material Facts, Danner refers only to a

“referral by former Captain at USP Lewisburg, Brent Traggard[,] on September 3, 2015.” Doc.

29 (Danner Statement of Material Facts) ¶ 28 (citing Doc. 26-18 (Sept. 3, 2015, B. Taggart

Referral to EAP for T. Danner)).

46 Doc. 26-20 (T. Danner Affidavit by Interrogatory) at 36.

shoulder” and “refused to speak to [her].”47 According to Danner, this began “not

long after [a BOP official] came . . . to interview [her] in regards to the sexual

harassment [she] had filed on Lieutenant Knapp.”48 In her Affidavit by

Interrogatory, Danner explained that she “strongly [felt] after [Officer Hunter]

heard [she] filed Sexual Harassment against Lieutenant Knapp he was either

warned or chose to on his own have limited contact with [her],” to ensure that

Danner “couldn’t turn around and file it on him also.”49 For his part, Officer

Hunter expressed confusion about the allegation, stating that he “talked to

[Danner] every day” when opening and closing the Command Center, and that to

the extent those conversations were limited, it was because his office was located

in a different part of the prison complex.50

47 Doc. 26-20 (T. Danner Affidavit by Interrogatory) at 42; see also Doc. 29 (Danner Statement

of Material Facts) ¶ 30 (“Mr. Hunter purposely ignored her at work, and gave her the ‘cold

shoulder’ for [four] months.”).

48 Doc. 26-20 (T. Danner Affidavit by Interrogatory) at 42.

49 Id.

50 Doc. 26-24 (May 16, 2018, L. Hunter Interview Tr.) 144:5–23 (“[Q.] Issue 7, her supervisor

giving her the cold shoulder and refusing to speak to her for four months. Did you give her the

cold shoulder and refuse to speak to [Danner] for four months as alleged? [A.] She’s talking

about me? [Q.] Yes, sir. [A.] I talked to her every day. I left [sic] her in, I left [sic] her out, I

spoke to her, I said good morning to her, said goodbye to her every afternoon, and that’s all—

all I’ve really talked to her. I don’t work at the Command Center. I went in there in the morning

and opened it up, let her in there, and I have an outside office there that I don’t really go into,

and then I come into the institution, I spend the day there, I left and came out at 2:30, let her

out, locked the door because she didn’t have a key, and I came back inside and finished my

day, so I don’t know how I would give her the cold shoulder when I don’t even work there.

My office is inside.”).

Fourth, Danner asserts that in June 2016, SIA Heath refused to provide her

with, and allow her to sign, her 2016 annual evaluation.51 Asked why she

considered this action “discrimination and harassment based on [her] sex and

reprisal,” Danner responded, “Because they knew by this point in time they had no

case on me. No one wanted to come face to face with me. . . . Everyone was trying

to make things as difficult for me as possible to make me quit so they wouldn’t

have to say they were wrong.”52

Similar to Officer Hunter with the third complaint, SIA Heath seemed

confused by the allegation. When asked whether she refused to “show [Danner] her

2016 annual evaluation or give her a chance to sign it as alleged,” SIA Heath

responded, “I was in charge of doing her evaluations during this time period. Her

yearly evaluation would’ve been due in April of 2017 and I was retired in

January.”53 SIA Heath stated that to the extent Danner was referring to her

quarterly evaluations, “[E]very quarter I would go out to the Command Center

where [Danner] was temporarily reassigned and show [Danner] her quarterly

evaluation and ask her if she wanted to sign it, and she would refuse every time.”54

51 Doc. 26-20 (T. Danner Affidavit by Interrogatory) at 46; see also Doc. 29 (Danner Statement

of Material Facts) ¶ 33 (“[Danner’s] supervisor, Susan Heath, refused to allow her to see or

sign her June 2016 evaluation.”).

52 Doc. 26-20 (T. Danner Affidavit by Interrogatory) at 46.

53 Doc. 26-23 (May 18, 2018, S. Heath Interview Tr.) at 127:11–17.

54 Id. at 127:18–128:2.

And fifth, Danner alleges that in October 2016, during her last full week at

work, she overheard various male colleagues “being extremely crude in their

language” and making sexual remarks that she believes were directed at her.55

Danner acknowledges that she did not report these remarks to USP-Lewisburg

management.56 According to Danner, “there was no one to report this to[]” because

“[t]here were Lieutenants in the room . . . and the responsibility should have fallen

on them to correct the actions and words of the team members under their

command.”57

7. Investigation Results and Recommendation

During this period, the BOP’s Office of Inspector General completed its

investigation into the allegations that Danner violated BOP policy by allowing

inmates prohibited from interacting with one another to be together in a room

without restraints.58 According to the USP-Lewisburg Warden, David Ebbert, the

Office of Inspector General ultimately sustained the charges and recommended

Danner’s termination, but Danner “accepted a disability retirement prior to [that]

decision.”59

55 Doc. 26-20 (T. Danner Affidavit by Interrogatory) at 44–45; see also Doc. 29 (Danner

Statement of Material Facts) ¶ 31.

56 Doc. 26-20 (T. Danner Affidavit by Interrogatory) at 45.

57 Id.

58 Doc. 26-21 (D. Ebbert Affidavit by Interrogatory) at 80.

59 Id.

For her part, Danner states only that “doctors pulled [her] out on October 31,

2016,” because her “blood pressure was extremely high and [she] was also

experiencing suicidal ideations.”60 She claims that “had [she] not been pulled out”

by her doctors, she is “sure [she] would still be sitting there waiting on the

outcome and [the] Warden’s decision.”61 She has not, however, offered evidence

refuting Warden Ebbert’s assertion that the Office of Inspector General sustained

the allegations against her and issued a proposal for removal.

B. Procedural History

After receiving Danner’s EEO Complaint, the Equal Employment

Opportunity Commission (“EEOC”) opened an investigation into the matter.62

Ultimately, the EEOC determined that Danner “failed to set forth the intentional

discrimination required to make a finding of discrimination in this case.”63 On

October 11, 2019, the Department of Justice’s Complaint Adjudication Officer

accepted the EEOC’s decision,64 and then sent Danner and her attorney notice of

her right to sue in federal court.65 Specifically, a copy of the decision and so-called

60 Doc. 26-20 (T. Danner Affidavit by Interrogatory) at 31.

61 Id.

62 See Doc. 26-2 (Oct. 11, 2019, Right-to-Sue Letter) at 9–15 (EEOC Decision).

63 Id. at 15 (EEOC Decision).

64 Id. at 6–7 (Dept. of Justice Memo Explaining the Final Order).

65 See id. at 1–2.

“right-to-sue” letter was emailed to both Danner and her attorney, and a physical

copy was mailed to Danner.66

On April 20, 2020, Danner initiated the instant action.67 Her Complaint

presents two causes of action: sexual discrimination (Count I) and retaliation

(Count II).68

The Defendants filed a motion for summary judgment on November 30,

2022.69 That motion has been fully briefed and is now ripe for disposition.70

II. LAW

Under Federal Rule of Civil Procedure 56, 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.”71 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.”72 A defendant

“meets this standard when there is an absence of evidence that rationally supports

66 See Doc. 26-3 (Oct. 11, 2019, EEOC Email) (sent to Danner at “tadanner@gmail.com” and

her attorney, Christian Lovecchio at “christine@rcrglaw.com”); Doc. 26-4 (USPS Certified

Mail Receipt – Oct. 11, 2019, delivery to T. Danner).

67 See Doc. 1 (Compl.).

68 Id. at ¶¶ 41–48 (Count I), 49–59 (Count II).

69 Doc. 19 (Defs’ MSJ).

70 See Doc. 24 (Defs’ Br.); Doc. 30 (Danner Opp.); Doc. 31 (Defs’ Reply).

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

72 EBC, Inc. v. Clark Building Systems, Inc., 618 F.3d 253, 262 (3d Cir. 2010) (citing Clark v.

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

the plaintiff’s case.”73 Conversely, to survive summary judgment, a plaintiff must

“point to admissible evidence that would be sufficient to show all elements of a

prima facie case under applicable substantive law.”74

The party requesting summary judgment bears the initial burden of

supporting its motion with evidence from the record.75 When the movant properly

supports its motion, the nonmoving party must then 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.”76 The

nonmoving party will not withstand summary judgment if all it has are “assertions,

conclusory allegations, or mere suspicions.”77 Instead, it must “identify those facts

of record which would contradict the facts identified by the movant.”78

In assessing “whether there is evidence upon which a jury can properly

proceed to find a verdict for the [nonmoving] party,”79 the Court “must view the

facts and evidence presented on the motion in the light most favorable to the

nonmoving party.”80 Moreover, “[i]f a party fails to properly support an assertion

of fact or fails to properly address another party’s assertion of fact as required by

73 Clark, 9 F.3d at 326.

74 Id.

75 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

76 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

77 Betts v. New Castle Youth Development Center, 621 F.3d 249, 252 (3d Cir. 2010).

78 Port Authority of N.Y. and N.J. v. Affiliated FM Insurance Co., 311 F.3d 226, 233 (3d Cir.

2002) (citation omitted).

79 Liberty Lobby, 477 U.S. at 252 (internal quotation marks, citation, and brackets omitted).

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

Rule 56(c),” the Court may “consider the fact undisputed for purposes of the

motion.”81 Finally, although “the court need consider only the cited materials, . . . it

may consider other materials in the record.”82

III. ANALYSIS

The Defendants, in the instant motion, argue that summary judgment is

proper because Danner’s claims are both untimely and without merit. For the

reasons provided below, the Court agrees.

A. Statute of Limitations

Under Title VII, an individual seeking renumeration for alleged employment

discrimination must exhaust her claims before the Equal Employment Opportunity

Commission (“EEOC”) prior to filing suit in federal court.83 To that end, if the

complainant files a discrimination claim with the EEOC but the EEOC declines to

pursue it, the EEOC must notify the complainant, which it typically does by

issuing a “right-to-sue” letter.84 After receiving the right-to-sue letter, the

complainant has ninety (90) days to bring her civil suit in federal court.85 The

ninety-day period for filing the civil action is treated as a statute of limitations,

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

Cir. 2018).

82 Fed. R. Civ. P. 56(c)(3).

83 See 42 U.S.C. § 2000e-5(f)(1); see also Burgh v. Borough Council of Borough of Montrose,

251 F.3d 465, 469 (3d Cir. 2001) (noting that Title VII “establish[es] administrative remedies

and procedures that claimants must exhaust prior to bringing a civil action in court”).

84 Burgh, 251 F.3d at 470.

85 See McGovern v. City of Philadelphia, 554 F.3d 114, 115 n.1 (3d Cir. 2009) (“A claimant is

required to file a Title VII suit within 90 days of receiving a Right to Sue Letter.”).

which the Third Circuit has “strictly construed,” meaning that “in the absence of

some equitable basis for tolling, a civil suit filed even one day late is time-barred

and may be dismissed.”86

Under this administrative regime, “the date on which [a claimant] receive[s]

the [right-to-sue] letter becomes critical.”87 The Third Circuit instructs that unless

evidence shows differently, “courts will presume that a plaintiff received her

right-to-sue letter three days after the EEOC mailed it.”88

Here, the EEOC issued a written decision concluding that the administrative

record did not support a finding of discrimination or harassment against Danner on

the basis of her sex or EEO activity,89 which the Department of Justice’s

Complaint Adjudication Officer accepted on October 11, 2019.90 That same day,

the Complaint Adjudication Office sent Danner and her attorney the decision and

right-to-sue letter via email,91 and also mailed the documents to Danner via United

States Postal Service certified mail.92

86 Burgh, 251 F.3d at 470.

87 Seitzinger v. Reading Hospital and Medical Center, 165 F.3d 236, 239 (3d Cir. 1999).

88 Id.

89 See Doc. 26-2 (Oct. 11, 2019, Right-to-Sue Letter) at 9–15 (the EEOC’s decision finding that

Danner “failed to show that the alleged harassment was sufficiently severe and/or pervasive to

alter the conditions of employment and create an abusive atmosphere and/or that the alleged

harassment based on her protected class,” and further, the BOP “articulated legitimate, non-

discriminatory reasons for the employment actions” that Danner “failed to refute”).

90 Id. at 5.

91 See Doc. 26-3 (Oct. 11, 2019, EEOC Email) (sent to Danner at “tadanner@gmail.com” and

her attorney, Christian Lovecchio at “christine@rcrglaw.com”).

92 See Doc. 26-4 (USPS Certified Mail Receipt – Oct. 11, 2019, delivery to T. Danner).

Because the parties have produced no evidence to the contrary, the Court

presumes that Danner received her right-to-sue letter no later than October 14,

2019.93 Accordingly, Danner had until January 13, 2020, to bring this suit. But she

did not file her Complaint until April 20, 2020—189 days after receiving the

right-to-sue letter.94 That means her suit is 99 days late.

Curiously, although she filed a 21-page opposition brief and therein

acknowledges the Defendants’ argument that her claims should be dismissed as

untimely, she offers no response.95 No explanation for the delay. No argument for

equitable tolling. Nothing. Like a sailor fighting to plug a hole in her boat while

ignoring a rapidly approaching 100-foot wave, Danner contests the Defendants’

substantive arguments but leaves unanswered the dispositive question about the

timeliness of her Complaint.

Because Danner failed to initiate this suit within the ninety-day filing period,

her claims cannot proceed. Summary judgment is appropriate on this basis alone.

B. Substantive Claims

Even if Danner’s claims were timely, summary judgment would still be

appropriate, as the claims are without merit.

93 See Seitzinger, 165 F.3d at 239.

94 See Doc. 1 (Compl.).

95 See Doc. 30 (Danner Opp.) at 1 (noting the Defendants’ “QUESTIONS PRESENTED,” which

includes the following: “Whether the Court should grant summary judgment because the

Complaint was filed beyond the statute of limitations set forth in 42 U.S.C. 2000e-5(f)(1)?”),

10–20 (Danner’s “LEGAL ARGUMENT” section, silent on the timeliness issue).

In her Complaint, Danner advances two separate causes of action: sexual

discrimination (Count I) and retaliation (Count II).96 Although the Complaint

details a series of events from August 2015 to October 2016 that serve as the

factual predicates for Danner’s claims, it is unclear from the Complaint which

events pertain to each count and, for Count I, what theory of discrimination they

purportedly support.97 Danner’s Opposition Brief likewise provides little clarity—

she organizes the case into four separate theories of liability without reference to

either count.98

As best as the Court can tell, Count I rests on three distinct theories of

liability: (a) disparate treatment, based on Danner’s transfer to the Command

Center following the inmate incident; (b) quid pro quo sexual harassment, based on

the text messages she received from Lt. Knapp while at the training in Las Vegas;

and (c) hostile work environment, based on various alleged events considered in

conjunction with one another.99 Separately, Count II asserts retaliation related to

96 See Doc. 1 (Compl.) ¶¶ 41–48 (Count I: alleging that the Defendants “discriminated against

[her] in the terms, conditions, and privileges of employment in various ways in substantial part

because of her sex and reporting of illegal harassment and discrimination related thereto,” and

that this “sex discrimination created an intimidating, oppressive and hostile and offensive work

environment”), 49–59 (Count II: alleging that the Defendants “retaliated against [her] by . . .

subject[ing] [her] to unjust scrutiny, false allegations of misconduct, and unwelcomed and

discriminatory comments solely because [she] reported as required to do so the illegal and

improper activities of a Complex Supervisor”).

97 See id. ¶¶ 4–40.

98 See Doc. 30 (Danner Opp.) at 10–20.

99 Id. at 10–12, 14–17.

Danner’s September 2015 EEO Complaint.100 The Court addresses each theory of

liability in turn.

1. Sexual Discrimination (Count I)

a. Disparate Treatment

When analyzing disparate treatment sex discrimination claims under

Title VII, courts apply the burden-shifting analysis outlined by the Supreme Court

of the United States in McDonnell Douglas Corp. v. Green.101 Under this analysis,

the plaintiff “bears the initial burden of establishing a prima facie case by a

preponderance of the evidence.”102 To satisfy this burden, the plaintiff must show

the following: (1) she was a member of a protected class; (2) she was performing

her job satisfactorily; (3) she suffered an adverse employment action; and

(4) similarly situated employees of the opposite sex were treated more favorably.103

If the plaintiff makes a prima facie case, the burden then shifts to the

employer to “articulate some legitimate, nondiscriminatory reason for the [adverse

employment action].”104 Specifically, the employer must “clearly set forth, through

the introduction of admissible evidence, reasons for its actions which, if believed

100 Id. at 13.

101 411 U.S. 792, 802 (1973).

102 Sarullo v. U.S. Postal Service, 352 F.3d 789, 797 (3d Cir. 2003) (citing St. Mary’s Honor

Center v. Hicks, 509 U.S. 502, 506 (1993)).

103 See Summy-Long v. Pennsylvania State University, 226 F. Supp. 3d 371, 395 (M.D. Pa. 2016),

aff’d, 715 F. App’x 179 (3d Cir. 2017).

104 Sarullo, 352 F.3d 797 (citing McDonnell Douglas, 411 U.S. at 802).

by the trier of fact, would support a finding that unlawful discrimination was not

the cause of the employment action.”105

If the defendant meets this burden, “the presumption of discriminatory

action raised by the prima facie case is rebutted” and the burden shifts back to the

plaintiff.106 To sustain the claim, “[t]he plaintiff then must establish by a

preponderance of the evidence that the employer’s proffered reasons were merely a

pretext for discrimination, and not the real motivation for the unfavorable job

action.”107 Specifically, the plaintiff must “provid[e] evidence that would allow a

fact finder reasonably to (1) disbelieve the employer’s articulated legitimate

reasons; or (2) believe that an invidious discriminatory reason was more likely than

not the motivating or determinative cause of the employer’s action.”108

Here, Danner asserts that “management at USP-Lewisburg treated her

differently” than similarly situated male colleagues when it opened “an

administrative case investigation” based on “an incident in which inmates were

uncuffed and mingled with other inmates from other ‘phases.’”109 According to

Danner, “[t]wo male officers”—a corrections officer named Justin Romig and a

counselor named Matt Edinger—“were present during the incident”; Counselor

105 St. Mary’s Honor Center, 509 U.S. at 507 (internal quotation marks and emphasis omitted).

106 Sarullo, 352 F.3d at 797 (citing Texas Department of Community Affairs v. Burdine, 450 U.S.

248, 255 (1981)).

107 Id.

108 Id. at 800 (internal quotation marks and citation omitted).

109 Doc. 30 (Danner Opp.) at 10–11.

Edinger purportedly “admitted to uncuffing the inmates” before “he and Officer

Romig left the room,” while Danner “remained in the room for precautionary

reasons.”110 Danner asserts that neither Counselor Edinger nor Officer Romig were

investigated, whereas she “was questioned by [Office of Inspector General] agents

and remained under investigation for [fourteen] months and placed on ‘time out,’”

before ultimately being “recommended for termination.”111

But Danner fails to establish a prima facie case for two reasons, both related

to the final element (i.e., similarly situated employees treated more favorably).112

First, she provides no factual support for her account of events. Danner’s

Statement of Material Facts makes no mention of either Counselor Edinger or

Officer Romig and contains no description of the incident at issue.113 And the

documentary evidence the parties cite when discussing the incident and subsequent

investigation likewise contains no information on the specifics of the incident or

those involved.114 Indeed, Counselor Edinger and Officer Romig appear only in

Danner’s Opposition Brief.

110 Id. (citing Doc. 29 (Danner’s Statement of Material Facts) ¶ 26).

111 Id.

112 For purposes of their motion, the Defendants “assum[e] . . . that the investigation and

reassignment are adverse employment actions.” Doc. 24 (Defs’ Br.) at 13. The Court does the

same.

113 See Doc. 30 (Danner Statement of Material Facts).

114 See Doc. 26-17 (Sept. 3, 2015, Notification of Change in Work Assignment); Doc. 26-20

(T. Danner Affidavit by Interrogatory); Doc. 26-21 (D. Ebert Affidavit by Interrogatory).

Second, even if the Court did credit Danner’s account of events, it’s not

clear that Counselor Edinger and Officer Romig are appropriate comparators. The

men both held different positions than Danner (she was a Special Investigative

Services Technician, whereas Edinger was a counselor and Romig a line officer)

and correspondingly different roles in the incident (Danner “allowed inmates from

different . . . phases to interact,”115 whereas, according to the Defendants,

Counselor Edinger and Officer Romig simply “escorted the inmates”).116

As discussed, at the prima facie stage of the analysis, Danner “bears the

initial burden” of establishing “by a preponderance of the evidence” that similarly

situated employees of the opposite sex were treated more favorably.117 Because she

has not presented any evidence substantiating her account of the event at issue, she

has failed to meet her burden.

Moreover, even if Danner had established the prima facie case, that creates

only a “presumption of discriminatory action.”118 The Defendants can rebut that

presumption by articulating a “legitimate, nondiscriminatory reason” for the

investigation and reassignment.119 Here, they have done so: the Warden at

USP-Lewisburg referred Danner to the BOP’s Office of Inspector General based

115 Doc. 26-21 (D. Ebert Affidavit by Interrogatory) at 78.

116 Doc. 31 (Defs’ Reply) at 5.

117 Sarullo, 352 F.3d at 797.

118 Id.

119 Id.

on allegations that Danner “violated policy and allowed inmates from different . . .

phases to interact” without restraints, and reassigned Danner to the Command

Center, away from inmates until that investigation was complete.120

The burden, then, shifts back to Danner to “establish by a preponderance of

the evidence that [the Defendants’] proffered reasons were merely a pretext for

discrimination, and not the real motivation for the unfavorable job action.”121 On

this, Danner again fails to meet her burden. She does not deny that the incident

occurred or that she was involved; instead, she claims that she “was NOT the

ranking officer” and that she “remained in the room [with the unrestrained

inmates] for precautionary reasons.”122 But she offers no factual support for either

point.

Separately, she points to the timing of various events as proof of pretext:

“[t]he fact that most actions taken against Danner occurred after her complaint in

September 2015 suggests that Danner’s theory is sufficient as a matter of law to

establish discrimination.”123 That’s incorrect. Danner was reassigned to the

Command Center and referred to the Office of Inspector General for investigation

120 Doc. 26-21 (D. Ebert Affidavit by Interrogatory) at 78–81; see also Doc. 26-22 (May 17, 2018,

J. Fosnot Interview Tr.) at 105:12–21 (“[Q.] Did you reassign [Danner] to the Command Center

on time out and deliberate idling on September 3, 2015, as alleged? [A.] She was reassigned

by the Warden and the executive staff, yes. [Q.] If so, why was she reassigned? [A.] Until we—

the investigation has happened, there was an alleged involvement with inmates, and until we

could figure out what was going on we did not want her around inmates.”).

121 Sarullo, 352 F.3d at 797.

122 Doc. 30 (Danner Opp.) at 11.

123 Id.

on September 3, 2015;124 she filed her initial complaint with Human Resources on

September 11, 2015,125 and her EEO Complaint on September 23, 2015.126 The

relevant employment actions for this theory of liability thus occurred before her

complaints of discrimination. The timing of those complaints and whatever events

followed do not, as Danner asserts, ipso facto prove pretext for prior employment

actions.

Accordingly, Danner has failed to offer evidence substantiating her disparate

treatment theory for sexual discrimination. Count I cannot proceed on this basis.

b. Quid Pro Quo Harassment

Claims of quid pro quo sexual harassment follow the same

McDonnell Douglas burden-shifting framework as disparate treatment claims, but

the test for establishing a prima facie case differs.127 As the United States Court of

Appeals for the Third Circuit explained in Farrell v. Planters Lifesavers Co., “a

plaintiff may prove a claim of quid pro quo sexual harassment by showing that his

or her response to unwelcome advances was subsequently used as a basis for a

124 Doc. 26-21 (D. Ebert Affidavit by Interrogatory) at 78–81.

125 Doc. 26-7 (Sept. 11, 2015, T. Danner Letter to USP-Lewisburg Human Resources).

126 Doc. 26-6 (Sept. 23, 2015, T. Danner Request for EEO Counseling).

127 See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281–86 (3d Cir. 2000) (detailing

analytical framework for quid pro quo sexual harassment claims); see also Desouza v. Office

of Children and Family Services, 2019 WL 2477796, at *4 (E.D.N.Y. June 12, 2019) (“Though

claims challenging disparate treatment, quid pro quo sexual harassment, and hostile work

environment are all claims of gender discrimination, they are distinct causes of action governed

by different analytical standards.”).

decision about compensation, terms, conditions, or privileges or employment.”128

Although the plaintiff “need not show that the submission was linked to

compensation, etc., at or before the time when the advances occurred,” she must

establish that “her response was in fact used thereafter as a basis for a decision

affecting . . . her compensation.”129

Here, Danner identifies the text messages from Lt. Knapp as the

“unwelcome advances” underlying this theory of liability.130 But she does not

argue, either explicitly or implicitly, that her “response to” Lt. Knapp’s messages

(i.e., declining the offered “night cap”) was “subsequently used as a basis for a

decision about compensation, terms, conditions, or privileges or employment.”131

To be sure, Danner asserts that this message contributed to a “hostile work

environment” and that she “suffer[ed] reprisals” for reporting Lt. Knapp’s

conduct,132 but those arguments go to different, “distinct causes of action”—

namely, gender discrimination based on hostile work environment as well as

retaliation.133 They do not demonstrate that Danner suffered an adverse

employment action because she rejected Lt. Knapp’s advances.

128 206 F.3d at 281–82 (internal quotation marks, brackets, and citation omitted).

129 Id. at 282 (internal quotation marks and citation omitted).

130 See Doc. 30 (Danner Opp.) at 15 (“[T]he alleged sexual harassment by Mr. Knapp . . . affected

a term, condition, or privilege of employment.”).

131 Farrell, 206 F.3d 281–82.

132 Doc. 30 (Danner Opp.) at 13–16.

133 Desouza, 2019 WL 2477796 at *4.

Moreover, even if Danner did advance that argument, she has not presented

evidence establishing that any of the alleged adverse “decision[s] about [her]

compensation, terms, conditions, or privileges [of] employment” were, in fact,

based on her rejection of Lt. Knapp’s advances.134 As the Court sees it, there are

three alleged employment actions relevant to this inquiry: (1) Danner’s relocation

to the Command Center; (2) the investigation into the incident involving

unrestrained inmates; and (3) the negative employee evaluations on September 18,

2015.135 There is no indication, however, that Lt. Knapp was involved in any of

those employment actions. And Danner has not presented any evidence that the

individuals who were involved in those decisions (for the relocation and

investigation, “the Warden and the executive staff”;136 for the negative evaluations,

SIA Heath137) even knew about the incident between Danner and Lt. Knapp when

they made the decisions. By all accounts, they did not.138

134 Farrell, 206 F.3d 281–82.

135 To be clear, the Court is not ruling that these three actions are, in fact, the type of “decision[s]

about compensation, terms, conditions, or privileges” that give rise to a quid pro quo sexual

harassment claim. Id. Indeed, the Court is skeptical that all three would qualify as such. For

example, although Danner received three “Minimally Satisfactory” ratings in September 2015,

she received an “Outstanding” rating for the full year 2015. See Doc. 26-16 (USP Lewisburg

SIS Technician Ratings for 2015). There is no evidence that she suffered any material adverse

consequence—to her compensation or any other aspect of her employment—due to the

“Minimally Satisfactory” ratings.

136 Doc. 26-22 (May 17, 2018, J. Fosnot Interview Tr.) at 105:12–21.

137 Doc. 26-11 (Sept. 18, 2015, T. Danner Employee Evaluation).

138 See, e.g., Doc. 26-14 (May 17, 2016, S. Heath Interview Tr.) at 236:24–237:18 (asserting that

she was not involved in remediating Danner’s complaints about Lt. Knapp and that she didn’t

“know the dates on that”).

Absent any indication that the relevant decisionmakers were even aware of

the alleged “unwelcome advances,” Danner cannot show that her response to those

advances was “used as a basis of” the adverse employment actions at issue.139 As

such, Danner has not established a prima facie case of quid pro quo sexual

harassment.

Further, even if Danner had made a prima facie case, this theory of liability

would still fail as a predicate for Count I because the Defendants have provided

“legitimate, nondiscriminatory reason[s]” for the employment actions, which

Danner has not rebutted.140 As discussed, the investigation into Danner and her

corresponding reassignment to the Command Center was based on allegations

(which the BOP’s Office of Inspector General later substantiated) that Danner

allowed inmates to interact without restraints despite policy prohibiting them from

doing so.141 As for the negative performance evaluations, SIA Heath stated that she

issued the “Minimally Satisfactory” ratings because Danner failed to store and log

Use of Force and incident videos.142 Indeed, SIA Heath was blunt, stating that

Danner received the ratings because she “flat out wasn’t doing her job that she’s

required to do.”143 Danner has not refuted SIA Heath’s criticism.144

139 Farrell, 206 F.3d at 281–82.

140 Sarullo, 352 F.3d at 797.

141 See Doc. 26-21 (D. Ebert Affidavit by Interrogatory) at 78–81; see also Doc. 26-22 (May 17,

2018, J. Fosnot Interview Tr.) at 105:12–21.

142 See Doc. 26-14 (May 17, 2016, S. Heath Interview Tr.) at 236:24–237:25.

143 Id. at 237:17–18.

144 See Doc. 29 (Danner Statement of Material Facts).

Therefore, as with disparate treatment, Danner has not established quid pro

quo sexual harassment as a viable predicate for Count I.

c. Hostile Work Environment

To succeed on a hostile work environment claim, an employee must show

(1) she suffered intentional discrimination because of her sex, (2) the

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

affected her, (4) the discrimination would detrimentally affect a reasonable person

in like circumstances, and (5) the existence of respondeat superior liability.145

Courts presented with such claims must be mindful of the Third Circuit’s

admonition that “Title VII does not create ‘a general civility code for the American

workplace.’”146 Accordingly, when “assessing whether conduct is severe or

pervasive, courts 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 the employee’s work performance.’”147 And to that

end, the Third Circuit instructs courts to “filter out ‘simple teasing, offhand

comments, and isolated incidents.’”148

145 Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013).

146 Kokinchak v. Postmaster General of the United States, 677 F. App’x 764, 768 (quoting Oncale

v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998)).

147 Id. at 767 (quoting Harris v. Forklift Systems, 510 U.S. 17, 23 (1993)).

148 Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).

Here, Danner argues that she “clearly perceived the text messages on the trip

to Las Vegas to be hostile and abusive,” and that those messages, “along with other

incidents that occurred at the institution”—specifically, her reassignment to the

Command Center, the allegedly “unwarranted investigations” into her workplace

conduct, the negative performance evaluation she received, the unwillingness to

provide her with psychological assistance, and the “inappropriate sexual remarks”

she overheard during her final work week—were “severe enough to create an

environment of harassment.”149 Danner contends that she “has provided evidence

beyond subjective opinion that management officials took the accepted issue

actions based upon the fact that (1) she is a female and (2) . . . she had made an

EEO complaint.”150 The Court disagrees.

To start, most of the “incidents that occurred at the institute” do not qualify

as acts of intentional discrimination. First, we have Danner’s reassignment to the

Command Center, the investigations into the inmate incident, and the negative

performance evaluations. As discussed, the evidence presented indicates that there

were legitimate, non-discriminatory reasons for those actions—reasons Danner has

not refuted as pretextual.151 Moreover, there is no indication that the actions were

149 Doc. 30 (Danner Opp.) at 14.

150 Id.

151 See supra at 25–26, 29–30.

in any way related to one another or that the individuals responsible were aware of

the incident involving Lt. Knapp when the actions occurred.152

Second, there is the investigation into a possible sexual relationship between

Danner and a co-worker. Danner’s protestations notwithstanding, the evidence

establishes that the alleged investigative steps taken—BOP employees went into

Danner’s office to look for a video Danner purportedly should have given to the

USP-Lewisburg legal department before leaving for the training the Las Vegas,

and, after coming across a notebook containing descriptions of sexual acts, they

were directed by the Associate Warden to review video footage from the prison

and see why Danner was at the facility the previous weekend153—were justified.

Danner has not presented evidence refuting the Defendants’ explanations for why

BOP officials were in her office and why they were instructed to review the video

footage.154 Instead, the summary judgment record substantiates the Defendants’

account: it appears that the videos Danner failed to provide to the prison’s legal

department were Use of Force and incident videos; her failure to properly store

those videos resulted in the three “Minimally Satisfactory” ratings Danner received

on September 18, 2015.155

152 Id.

153 See Doc. 26-26 (May 17, 2018, A. Hartman Interview Tr.) at 186:6–187:18.

154 See Doc. 29 (Danner Statement of Material Facts) ¶¶ 22–23.

155 See Doc. 26-11 (Sept. 18, 2015, T. Danner Employee Evaluation); Doc. 26-14 (May 17, 2016,

S. Heath Interview Tr.) at 236:24–237:25.

Further, there was no formal investigation into the matter or consequence

stemming therefrom.156 After BOP employees reviewed the video footage, the

matter was dropped.157 Accordingly, even if Danner could show that there had

been an investigation, she has not established that it detrimentally affected her.158

Third, there is the matter concerning the BOP Chief Psychologist.159 But for

this, Danner has not presented any evidence establishing that she was denied

services because of either her sex or the EEO Complaint. Instead, Danner cites

only an affidavit she prepared for the EEO during its investigation into her

complaint, in which she wrote the following: “I believe I was just not important

enough for [the Chief Psychologist] to deal with,” and “[m]aybe [he] just didn’t

think a female needed the help.”160 At the summary judgment stage, however, such

musings about what another individual may have felt are not enough to sustain a

claim, as plaintiffs “cannot rely on unsupported assertions, speculation, or

conclusory allegations to avoid the entry of summary judgment.”161

156 See Doc. 26-22 (May 17, 2018, J. Fosnot Interview Tr.) at 104:22–105:9 (explaining “there

was no investigation [into Danner] for having sex with a co-worker” and there was no “referral

for one”); see also Doc. 26-21 (D. Ebert Affidavit by Interrogatory) at 77 (“21. Did you refer

[Danner] for an internal investigation accusing her of having a sexual relationship with a co-

worker as alleged? A. No.”).

157 Id.

158 See Rosati v. Colello, 94 F. Supp. 3d 704, 714 (E.D. Pa. 2015) (“Without negative

consequences, [an] investigation alone is not an adverse employment action”).

159 See Doc. 30 (Danner Opp.) at 14.

160 Doc. 26-20 (T. Danner Affidavit by Interrogatory) at 36.

161 Rosati, 94 F. Supp. 3d at 714–15 (declining to credit the plaintiff’s claim “that she alone

received certain extra assignments” and that this was “because of her sex,” as she “provides

only her deposition testimony to support this claim, and her deposition testimony relies on

hearsay”).

Apart from those incidents, Danner has presented only two other potential

“issue actions”: her text exchange with Lt. Knapp, and the sexual remarks she

overheard on her final workday.162 For the text exchange, the Court agrees with the

Defendants that this was an “isolated, one-time occurrence” that does not, by itself,

satisfy the “severe or pervasive” element of a hostile work environment claim.163

The message from Lt. Knapp, though unsolicited and unwanted, does not qualify

as “severe”: Lt. Knapp asked Danner if she wanted a “night cap,” Danner

responded that she wasn’t interested, and then the conversation ended.164 Danner

may well have considered the text messages “hostile and abusive,”165 but the Court

finds that a reasonable person in Danner’s position would not have. Indeed, district

courts in this circuit have found far more egregious conduct insufficiently severe or

pervasive to establish a hostile work environment.166

For the sexual remarks Danner allegedly overheard during her last week on

the job, Danner’s account of the incident lacks corroboration. Danner asserts that

“she overheard several staff, some of whom worked in different prisons in the

region, in a room adjacent to hers make inappropriate sexual remarks and that she

162 See Doc. 30 (Danner Opp.) at 14.

163 Doc. 31 (Defs’ Reply) at 10.

164 Doc. 26-9 (August 11, 2015, Danner-Knapp Text Exchange) at 115.

165 Doc. 30 (Danner Opp.) at 14.

166 See, e.g., Saidu-Kamara v. Parkway Corp., 155 F. Supp. 2d 436, 439–40 (E.D. Pa. 2001)

(finding that four separate incidents—involving “suggestive comments,” sexual propositions,

and unwanted touching—were not so severe and pervasive to create a hostile work

environment, explaining that although the supervisor’s “purported behavior is loathsome and

inappropriate,” the incidents were “sporadic and isolated,” spread out over eighteen months).

believed the comments pertained to her.”167 But as proof, she again cites only her

EEO affidavit, in which she wrote that the BOP employees speaking “knew I could

hear everything they were doing and vice versa,” and “[b]eing the only female in

the building I knew they were talking about me.”168 The Court is “not required to

take into account” such “unsupported assertions, speculation, [and] conclusory

allegations.”169

Moreover, even presuming the validity of Danner’s account, she has not

proved that the event amounted to anything more than “a mere offensive

utterance.”170 There is no evidence demonstrating that this type of sexualized

commentary about Danner occurred regularly—indeed, based the facts presented,

it appears this was the only such incident.171 And there is nothing in the summary

judgment record connecting this incident to any of the other issue actions alleged.

For example, it occurred fourteen months after the text exchange with Lt. Knapp

and the inquiry into Danner’s possible affair with a co-worker, and there is no

indication that Lt. Knapp or anyone involved in the inquiry was among the group

of men participating in the crude conversation.172 Put simply, whether considered

167 Doc. 29 (Danner Statement of Material Facts) ¶ 31.

168 Doc. 26-20 (T. Danner Affidavit by Interrogatory) at 44.

169 Rosati, 94 F. Supp. 3d at 714–15.

170 Kokinchak, 677 F. App’x at 767.

171 See id. at 44–45; see also Doc. 29 (Danner Statement of Material Facts) ¶¶ 31–32.

172 See Doc. 26-20 (T. Danner Affidavit by Interrogatory).

in isolation or alongside the other alleged incidents, the “inappropriate sexual

remarks” do not constitute severe or pervasive discrimination.173

In sum, the summary judgment record does not support a claim for hostile

work environment. Most of the incidents alleged were not discriminatory: some

were based on legitimate reasons, unrelated to Danner’s sex, whereas others simply

lack any factual nexus to Danner’s sex or EEO Complaint. And the remaining

events are the type of “isolated incidents” the Third Circuit has instructed courts to

“filter out.”174 Therefore, Count I cannot proceed on this basis.

2. Retaliation (Count II)

To prevail on a claim for retaliation under Title VII, an employee must

prove that “(1) he was engaged in protected activity; (2) he was subject to an

adverse job action subsequent to or contemporaneous with such activity; and

(3) there is a causal link between the protected activity and the subsequent adverse

job action.”175 As with claims of illegal discrimination under Title VII, if an

employer articulates a legitimate reason for the adverse employment action, the

173 See, e.g., Rosati, 94 F. Supp. 3d at 716 (finding that three isolated incidents involving offensive

(though not physically threatening or humiliating) comments over a four-month period did not

“rise to the level of severe and pervasive discrimination” to establish “a prima facie case of a

hostile work environment”); Funayama v. Nichia America Corp., 2011 WL 1399844, at *13

(E.D. Pa. Apr. 13, 2011) (granting summary judgment on the plaintiff’s hostile work

environment claim, explaining that the four harassing incidents—the plaintiff’s supervisor

allegedly kissed her against her will, suggested they share a hotel room, and asked her out on

dates—which occurred over a four-year period, were not “sufficiently severe or sufficiently

pervasive” to sustain the claim).

174 Kokinchak, 677 F. App’x at 767.

175 Sarullo, 352 F.3d at 800 (internal brackets omitted).

plaintiff “must [then] produce sufficient evidence to allow a reasonable fact finder

to conclude that the proffered reasons for [the action] are a pretext.”176

For the first prong, Danner points to her filing of the EEO Complaint as the

protected activity at issue.177 Such filings do, in fact, constitute protected activity

under Title VII.178 Accordingly, Danner has established this prong of the retaliation

test.

For the second prong, Danner does not specify which of the alleged

incidents she considers the “adverse actions” at issue in this claim.179 To ascertain

which incidents could apply, the Court separates the prong into its two component

parts: timing and action.

As to timing, the alleged adverse actions must have occurred “subsequent to

or contemporaneous with” the protected activity.180 Because Danner filed her EEO

Complaint on September 23, 2015, all incidents that occurred before September 23

cannot serve as a basis for this claim. That eliminates several alleged incidents: the

inquiry into Danner’s possible sexual relationship with a co-worker (early August

176 Id. at 799.

177 See Doc. 30 (Danner’s Opp.) at 13 (arguing that “within days of making her EEO complaint,

[she] began to suffer reprisals”).

178 See Sarullo, 352 F.3d at 800 (holding that a plaintiff, by “having filed an EEOC complaint

against [his employer] . . . can establish the first prong of [the retaliation] test because he

engaged in protected activity”).

179 See Doc. 30 (Danner’s Opp.) at 13.

180 Sarullo, 352 F.3d at 800.

2015);181 Danner’s reassignment to the Command Center and the concomitant

referral for investigation based on a prohibited inmate interaction (September 3,

2015);182 and the negative performance evaluations from SIA Heath (September

18, 2015).183

As to action, the Third Circuit has “defined ‘an adverse employment action’

under Title VII as an action by an employer that is ‘serious and tangible enough to

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

employment.’”184 Accordingly, to establish this second prong, a plaintiff must

present evidence of a “refusal to hire [or] termination,” a “change [in]

compensation,” or some other “‘serious and tangible’ alteration of the ‘terms,

conditions, or privileges of employment.’”185 To that end, courts have found that

negative performance reviews, workplace shunning, rude behavior, and

“unnecessary derogatory comments,” standing alone, “do not rise to the level of

adverse employment action.”186

181 See Doc. 26-7 (Sept. 11, 2015, T. Danner Letter to USP-Lewisburg Human Resources) at 40;

Doc. 26-26 (May 17, 2018, A. Hartman Interview Tr.) at 186:6–187:18.

182 See Doc. 26-17 (Sept. 3, 2015, Notification of Change in Work Assignment); Doc. 26-22 (May

17, 2018, J. Fosnot Interview Tr.) at 105:12–21; Doc. 26-21 (D. Ebbert Affidavit by

Interrogatory) at 80.

183 See Doc. 26-11 (Sept. 18, 2015, T. Danner Employee Evaluation).

184 Storey v. Burns International Security Services, 390 F.3d 760, 764 (3d Cir. 2004) (citation

omitted).

185 Jones v. Southeastern Pennsylvania Transportation Authority, 796 F.3d 323, 326 (3d Cir.

2015) (citation omitted).

186 Holt v. Pennsylvania, 683 F. App’x 151, 158 (3d Cir. 2017); see also Cherkasky v. Boyertown

Area School Dist., 2022 WL 612070, at *6–7 (E.D. Pa. Mar. 2, 2022) (finding that neither a

“negative performance review” nor an employer’s “cold behavior”—without an indication that

it prevented the plaintiff “from attending substantive work-related events” or “prevented her

This component of the second prong renders inadequate the remaining

potential factual predicates for Danner’s retaliation claim. For example, Danner

alleges that she received the “cold shoulder” from her supervisor in the Command

Center and later overheard co-workers making sexual remarks about her.187 Even

accepting Danner’s account of these events,188 neither constitutes an adverse

employment event, as workplace shunning and “unnecessary derogatory

comments,” without more, do not suffice.

Similarly, Danner’s allegations about the Human Resources staff declining

to assist her, the prison’s Chief Psychologist ignoring her referral, and SIA Heath’s

refusal to provide her 2016 evaluation, even if accepted as true, “do not rise to the

level of adverse employment action.”189 Danner has not presented any argument

about what the prison’s Human Resources staff or Chief Psychologist were

required to do for her and why failing to provide that assistance constituted a

“serious and tangible alteration of the terms, conditions, or privileges of [her]

employment.”190 She likewise offers no explanation of how, if at all, she was

professional advancement”—qualify as an “adverse employment action”); Grady v. Cracker

Barrel Old Country Store, Inc., 2007 WL 1959298, at *11 (July 2, 2007) (Jones, J.) (“Title VII

is not intended to cure a cold shoulder or ostracism by co-workers.”) (internal quotation marks

and citation omitted).

187 Doc. 26-20 (T. Danner Affidavit by Interrogatory) at 42, 44–45.

188 Officer Hunter, Danner’s supervisor at the Command Center, denies ever ignoring or

ostracizing Danner. See Doc. 26-24 (May 16, 2018, L. Hunter Interview Tr.) 144:5–23. And,

as discussed, Danner account of the incident with her co-workers lacks corroboration. See infra

at 35.

189 Holt, 683 F. App’x at 158.

190 Jones, 796 F.3d at 326 (internal quotation marks and citations omitted).

affected by purportedly being denied the opportunity to review her annual

evaluation.191

Further, if the Court could treat these final three incidents as adverse

employment actions, it would still be of no moment: Danner fails on the third

prong of the retaliation test, as she has not established a causal link between those

incidents and her EEO Complaint. For the Human Resources staff, the summary

judgment record demonstrates that Regina Moscarello, the Assistant Human

Resources Manager at USP-Lewisburg, informed Danner that “once [she] received

[Danner’s] official written information,” their “discussions would be limited”—the

two could no longer discuss any “personal issues” because of Danner’s active

complaint “about work related concerns.”192 Danner has not denied, or offered any

evidence repudiating, Ms. Moscarello’s explanation.193 Indeed, there is nothing in

the summary judgment record indicating that Ms. Moscarello’s actions were

instead motivated by or attributable to Danner’s subsequent decision to file the

EEO Complaint.

For the Chief Psychologist, as discussed, aside from the unsupported

assertions and speculation contained in her own EEO affidavit, Danner offers no

191 See Doc. 26-20 (T. Danner Affidavit by Interrogatory) at 46.

192 Doc. 26-25 (R. Moscarello Affidavit by Interrogatory) at 157; see also Doc. 26-20 (T. Danner

Affidavit by Interrogatory) at 34 (“But, after I sent the [September 11, 2015] memorandum to

[Ms. Moscarello] I tried contacting her again and all she would say was because of her position

as the Human Resources Assistant Manager, now that I have read the memo I cannot talk about

it with you, you understand.”).

193 See Doc. 29 (Danner Statement of Material Facts) ¶ 26.

evidence about why the prison’s Chief Psychologist did not act on Danner’s

referral.194 The record reveals no causal link between the Chief Psychologist’s

inaction and Danner’s EEO Complaint.

And, finally, for SIA Heath’s purported refusal to provide Danner with her

2016 employee evaluation, Danner does not even attempt to establish causation. In

her Opposition Brief and Statement of Material Facts, Danner simply asserts that

SIA Heath “refused to allow [Danner] to see or sign her June 2016 evaluation.”195

Danner makes no factual representation or argument about why this allegedly

occurred or how it relates her EEO Complaint.196

Accordingly, Danner has not made the preliminary showing required to

sustain a retaliation claim. Count II does not survive summary judgment.

194 See supra at 33–34.

195 Doc. 29 (Danner Statement of Material Facts) ¶ 33; Doc. 30 (Danner Opp.) at 19 (same).

196 See Doc. 29 (Danner Statement of Material Facts) ¶¶ 33 –34; Doc. 30 (Danner Opp.) at 11,

19–20.

IV. CONCLUSION

To sustain a claim in federal court for sex discrimination under Title VII, a

plaintiff must first file a timely suit after exhausting her administrative remedies

and then, after discovery, present evidence from which a trier of fact could find in

her favor. Danner has done neither. As such, the Defendants’ motion for summary

judgment is granted.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge