Doe v. The Pennsylvania State University

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JANE DOE, No. 4:21-CV-01862

Plaintiff, (Chief Judge Brann)

v.

THE PENNSYLVANIA STATE

UNIVERSITY,

Defendant.

MEMORANDUM OPINION

NOVEMBER 3, 2023

Plaintiff Jane Doe claims that she was sexually assaulted by a coworker, became

pregnant as a result, and then was the victim of ongoing harassment at work when she

refused to terminate the pregnancy. Doe’s employer, The Pennsylvania State

University, moves for summary judgment, arguing that Doe is not credible, and has

failed to offer evidence in support of her claims. Though the Court agrees with Penn

State as to the latter with respect to three of Doe’s five claims, it may not make

credibility determinations on a motion for summary judgment. Therefore, the Court will

grant Penn State’s motion in part, and deny it in part.

I. BACKGROUND

A. Undisputed Facts

On April 29, 2019, Doe began working as a part-time “overnight cleaner” at the

Nittany Lion Inn (“NLI”), an on-campus hotel owned by The Pennsylvania State

University.1 At her request, Doe was transferred to a daytime dishwashing shift at the

NLI by Jamison Steffen, a sous chef and Doe’s supervisor, in September 2019.2 One of

Doe’s coworkers at the NLI was Trea Vanburen, a full-time dishwasher who also

worked as a Team Lead dishwasher.3 Between November 6, 2019 and December 6,

2019, while Vanburen’s wife was visiting family in China, Vanburen and Doe had sex

and conceived a child.4 Doe informed Vanburen of the pregnancy on January 7, 2020.5

Vanburen, scared about the pregnancy and its potential impact on his marriage,

asked Doe to have an abortion.6 Eventually, after receiving several text messages from

Doe and her fiancée, Ms. Kasha Perry, Vanburen told his wife about the pregnancy.7

Concurrent with this dialogue between Doe, Perry, and Vanburen, Doe asked Steffen if

she could be scheduled to work different shifts than Vanburen.8 Though Steffen was

able to reduce the number of shifts that Doe and Vanburen worked together, he was

unable to completely accommodate her request.9

On February 7, 2020, less than an hour into a shift that Doe and Vanburen were

working together, Doe left the NLI for the last time.10 After walking out, Doe sent a

1 Statement of Material Facts (“SMF”), Doc. 31 ¶¶ 17, 22; Response to Statement of Material

Facts (“RSMF”), Doc. 40-1 ¶¶ 17, 22.

2 SMF ¶¶ 33, 44; RSMF ¶¶ 33, 44.

3 SMF ¶¶ 57, 62; RSMF ¶ 57.

4 SMF ¶¶ 74-76; RSMF ¶¶ 74-76.

5 SMF ¶ 77; RSMF ¶ 77.

6 SMF ¶¶ 101, 103; RSMF ¶¶ 101, 103.

7 SMF ¶¶ 105-109; RSMF ¶¶ 105-109.

8 SMF ¶¶ 119-20; RSMF ¶¶ 119-20.

9 SMF ¶¶ 122-23; RSMF ¶¶ 122-23.

10 SMF ¶ 140; RSMF ¶ 140.

text message to Steffen stating that she felt she was “being pushed out the door.”11 On

February 10, 2020, Doe sent an email to Penn State Human Resources Consultant Carol

Eicher.12 During discussions with Eicher, Doe complained that Vanburen had been

harassing her at work and that Steffen had been unable to adequately remedy the

situation.13 Eicher and Jackie Weyer, Manager of the NLI Housekeeping Department,

reached out to Doe regarding a transfer to housekeeping; however Doe never

responded.14 In early March, 2020, Eicher assumed that Doe’s silence meant Doe was

no longer interested in working at the NLI.15 Doe never returned to work for Penn

State.16

Doe gave birth to hers and Vanburen’s child on August 11, 2020.17 In late

October or early November 2020, Vanburen filed a request for a paternity test.18 On

November 4, 2020, Doe filed a petition to obtain a Sexual Violence Protection Order

(“SVPO”) against Vanburen, claiming that their child was the product of a sexual

assault.19 Coworkers of Doe and Vanburen testified during the SVPO proceedings.20

Doe’s request for a SVPO was subsequently denied.21

11 SMF ¶ 141; RSMF ¶ 141.

12 SMF ¶ 155; RSMF ¶ 155.

13 SMF ¶¶ 160-170; RSMF ¶ 160-170.

14 SMF ¶¶ 210, 216; RSMF ¶¶ 210, 216.

15 SMF ¶ 216; RSMF ¶ 216.

16 SMF ¶ 242; RSMF ¶ 242.

17 SMF ¶ 244; RSMF ¶ 244.

18 SMF ¶ 246; RSMF ¶ 246.

19 SMF ¶ 248; RSMF ¶ 248.

20 SMF Section M; RSMF Section M.

21 SMF ¶ 266; RSMF ¶ 266.

B. Procedural History

Doe initiated this suit on November 1, 2021, alleging violations of Title VII of

the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972.22 Penn

State timely Answered on December 30, 2021.23 The parties engaged in discovery, and

Penn State filed a Motion for Summary Judgment on May 31, 2023.24 Penn State’s

Motion is fully briefed and ripe for disposition.25

II. LAW

Under Federal Rule of Civil Procedure 56(a), 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 a judgment as a matter of law.” As expressed by the Supreme

Court of the United States in Celotex Corp. v. Catrett, summary judgment is required

where a party “fails to make a showing sufficient to establish the existence of an element

essential to that party’s case” on an issue that the “party will bear the burden of proof

at trial.”26 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.”27

22 Compl., Doc. 1.

23 Ans., Doc. 6.

24 Mot. Summ. J. (“MSJ”), Doc. 30.

25 MSJ Br., Doc. 35; MSJ Opp., Doc. 40; MSJ Reply, Doc. 44; MSJ Sur-Reply, Doc. 51.

26 477 U.S. 317, 322 (1986).

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

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

The party requesting summary judgment bears the initial burden of supporting

its motion with evidence from the record.28 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 by only a finder of fact because

they may reasonably be resolved in favor of either party.”29 The United States Court of

Appeals for the Third Circuit explains that the nonmoving party will not withstand

summary judgment if all it has are “assertions, conclusory allegations, or mere

suspicions.”30 Instead, it must “identify those facts of record which would contradict

the facts identified by the movant.”31

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

to find a verdict for the [nonmoving] party,”32 the Court “must view the facts and

evidence presented on the motion in the light most favorable to the nonmoving party.”33

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 Rule 56(c),” the Court may

“consider the fact undisputed for purposes of the motion.”34 Finally, although “the court

28 Celotex, 477 U.S. at 323.

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

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

31 Port Auth. Of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002) (quoting

Childers v. Joseph, 842 F.2d 689, 694-95 (3d Cir. 1988)).

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

422, 448 (1871)).

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

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

Cir. 2018).

need consider only the cited materials, . . . it may consider other materials in the

record.”35

III. ANALYSIS

A. Evidentiary Issues

Before turning to the merits, the Court first addresses global evidentiary issues

presented by Penn State’s Motion for Summary Judgment and the parties’ papers.

1. Motion to Strike

After Doe left the NLI for the last time on February 7, 2020, she contacted Penn

State Human Resources Consultant Carol Eicher to discuss the alleged harassment she

had experienced. Penn State’s, and therefore Eicher’s response to Doe’s complaint is

an issue central to Doe’s claims. During discovery, Penn State produced Eicher’s

handwritten notes36—written in Gregg shorthand37—as well as Eicher’s typed

transcription of those notes.38 During her deposition, Eicher testified that she could not

recall when she transcribed the notes39 and that, though she intended for her typed notes

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

36 Def. Ex. H, Doc. 32-10 (“Eicher Dep. Exs.”) at 114-118.

37 Gregg shorthand is a system of pen stenography that gained popularity in the early twentieth

century. It would fall out of favor with the invention of mechanical stenography, the

Dictaphone, and eventually the arrival of the personal computer. In recent years, the use of

Gregg shorthand has been primarily restricted to that of hobbyists or as a personal tool. See

Dennis Hollier, How to Write 225 Words Per Minute With a Pen, THE ATLANTIC (June 24,

2014) available at https://www.theatlantic.com/technology/archive/2014/06/yeah-i-still-use-

shorthand-and-a-smartpen/373281/; GREGG SHORTHAND, https://gregg-shorthand.com/ (last

visited Oct. 27, 2023).

38 Eicher Dep. Exs. at 119-120.

39 Def. Ex. H, Doc. 32-9 (“Eicher Dep. Tr.”) at 130:1-8.

to be a word-for-word transcription,40 there were certain discrepancies between her

handwritten notes and her transcription.41

Doe asserts that the discrepancies involve key issues regarding Penn State’s

response to Doe’s complaint.42 In support, Doe filed with her opposition to summary

judgment a declaration of Claire Szostak.43 Szostak, a paralegal at a law firm with no

other involvement in this case, declares that she studied Gregg shorthand in high school

from 1968-1970 and that she used Gregg shorthand as a stenographer for the FBI from

1970-72 and then for some time after transitioning to the private sector.44 She further

notes that, while she “ha[s] not used Gregg Shorthand in a business setting for about

twenty years [she] continue[s] to use Gregg Shorthand for [her] own personal use on a

limited basis. For example, if [she is] doing research and making notes, about half of

[her] notes will be in Gregg shorthand.”45

Penn State has moved to strike Szostak’s declaration,46 arguing that Doe failed

to disclose Szostak as a fact witness as required by Rule 26 or, to the extent she is

offered as an expert witness, her opinion is inadmissible under Daubert.47 Doe counters

40 Id. at 114:10-15.

41 Id. at 114:5-16.

42 MSJ Opp. Section II. P.

43 Pl. Ex. 3, Doc. 40-4 (“Szostak Decl.”).

44 Id. ¶¶ 2-4.

45 Id. ¶ 5.

46 Mot. to Strike (“MTS”), Doc. 45.

47 See generally MTS Br., Doc. 46.

that she was not required to disclose Szostak under Rule 26 because she is being offered

solely for impeachment and that a Daubert analysis is premature.48

Though Gregg shorthand is not a foreign language, it may as well be. It is a “well-

established rule that a document in a foreign language is generally inadmissible unless

accompanied by a certified English translation.”49 Translated statements are generally

admissible provided “that there is no showing of unreliability or a motive to mislead.”50

Courts evaluating the reliability or bias of a translation consider: “(1) which party

supplied the interpreter, (2) whether the interpreter had any motive to mislead or distort,

(3) the interpreters qualifications and language skill, and (4) whether actions taken

subsequent to the conversation were consistent with the statements as translated.”51 If

the accuracy of a transcript is contested, the parties may submit competing transcripts.52

Further, Federal Rule of Evidence 604 “does not require that the interpreter be qualified

as an expert, it merely requires that they be qualified.”53

48 See generally MTS Opp., Doc. 49.

49 ABC Corp. v. Partnerships and Unincorporated Assoc. Identified on Schedule A, 2022 WL

18937941, at *1 (N.D. Ill. Dec. 19, 2022) (collecting cases); accord Huang v. Bai Wei LLC,

2023 WL 5243364, at *7 (E.D. Pa. Aug. 14, 2023) (collecting cases).

50 Comm. Assoc. Underwriters of Am. Inc., v. Queensboro Flooring Corp., 2016 WL 1728381,

at *7 (M.D. Pa. Apr. 29, 2016) (collecting cases).

51 Id. (quoting United States v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991)).

52 See U.S. v. Ben-Shimon, 249 F.3d 98, 101 (2d Cir. 2001) (discussing admission of transcripts

of a recorded conversation conducted in a foreign language).

53 United States v. Columbie, 2022 WL 17156048, at *12 (D.N.M. 2022) (citing United States v.

Verdin-Garcia, 516 F.3d 884, 893 (10th Cir. 2008)). But see Dogu Yayin Grubu A.S. v. DFH

Network, Inc., 2014 WL 12585785, at *4 (C.D. Cal. 2014) (“Foreign language translation is

considered specialized knowledge and subject to the requirements of Rule 702 of the Federal

Rules of Evidence.”).

It is also “well-established that the Court has the discretion to allow undisclosed

rebuttal witnesses to testify,” even those “not discussed in a pre-trial order,” let alone a

Rule 26 disclosure.54 The nature of rebuttal or impeachment testimony cannot always

be determined until the opposing party has presented their case, here, via a motion for

summary judgment.

Taking these principles together, the Court finds that Doe is entitled to introduce

a competing transcription of Eicher’s notes prepared by a qualified interpreter. Though

Penn State has assumed that Szostak’s testimony would need to be admissible under

Rule 702, the Court is less certain that is the case, or that Szostak (or any other

interpreter) would need to testify at all. To the extent that testimony would be necessary,

Doe has not waived her opportunity to introduce it. Szostak (or any translator) is not

introducing fact evidence, rather interpreting evidence that is already in the record.

Significantly, for the purposes of evaluating the parties’ arguments for summary

judgment, the Court finds that Szostak’s declaration is not that of a testifying witness—

it merely provides a competing translation of Eicher’s notes. Further, the Court finds

that it is likely that Szostak’s competing transcription would be admissible at trial, and

therefore can be considered in evaluating Penn State’s motion for summary judgment.55

Szostak used Gregg shorthand in a professional setting for almost 20 years and has since

54 Federal Trade Comm’n v. Innovative Designs, Inc., 2019 WL 13434840, at *1 (W.D. Pa. July

17, 2019) (collecting cases).

55 See Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F. 3d 231, 238 (3d Cir. 2016).

used it for her own personal notetaking.56 This may be insufficient to qualify her as an

expert witness, but the Court is unwilling to find that it would preclude her from offering

a competing transcription. Penn State makes much of the fact that Szostak has not used

Gregg shorthand professionally in 20 years. However, adopting that standard, would

mean that nobody would be qualified as Gregg shorthand fell out of favor decades ago.

The Court will therefore deny Penn State’s motion to strike without prejudice to

Penn State’s right to bring a subsequent challenge.

2. Competing Testimony

Throughout its briefing, Penn State argues that summary judgment is appropriate

because Doe “fails to offer any evidence, beyond [her] own testimony, to support [her]

claims.”57 Conclusory, self-serving affidavits and deposition testimony are insufficient

to withstand a motion for summary judgment.58 “However, the issue is not whether

[Doe] has relied solely on [her] own testimony to challenge the Motion[], but whether

[her] testimony, when juxtaposed with the other evidence, is sufficient for a rational

factfinder to credit [her] testimony, despite its self-serving nature.”59

Here, the bulk of the “other evidence” offered by Penn State in support of its

motion are deposition testimony and affidavits of Penn State employees. Penn State

56 Szostak Aff. ¶¶ 4-5.

57 MSJ Br. 3; see also id. at 20, 42, 46.

58 Johnson v. MetLife Bank, N.A., 883 F. Supp. 2d 542, 549 (E.D. Pa. 2012) (citing Gonzalez v.

Sec’y of the Dep’t of Homeland Sec., 678 F.3d 254, 263 (3d Cir. 2012); Kirleis v. Dickie,

McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009); Irving v. Chester Water Auth.,

439 F. App’x 125, 127 (3d Cir. 2011)).

59 Id. (citing Gonzalez, 678 F.3d at 263; Irving, 439 F. App’x at 127).

repeatedly asks the Court to “give[] great weight” to the testimony of Doe’s coworkers

in favor of Doe’s “own self-serving and questionably credible statements.”60 This Court

cannot weigh the evidence or “make credibility-related findings when ruling on a

motion for summary judgment.”61 Therefore, in the absence of other evidence, the Court

cannot credit the testimony offered by Penn State where it would require discrediting

the testimony of Doe.62

B. Title VII (Count I) and Title IX (Count IV) Hostile Work

Environment Claims

To survive summary judgment on her hostile work environment claims, Doe

must show that there is a material issue of fact that 1) she suffered intentional

discrimination because of her gender; 2) that was severe or pervasive; 3) detrimentally

affected her; 4) and would detrimentally affect a reasonable person in like

circumstances; 5) for which Penn State is liable.63 As to the fifth prong, the threshold

for employer liability under Title VII is respondeat superior while Title IX imposes a

higher standard of deliberate indifference.64

60 E.g., MSJ Br. 17; see also id. at 19 (referring to the “sworn testimony of four other NLI

employees”), 20 (“Plaintiff is, therefore, far from credible.”).

61 Howard v. Blalock Elec. Svc. Inc., 742 F. supp. 2d 681, 707 (W.D. Pa. 2010) (citing Facenda

v. N.F.L. Films, Inc., 542 F.3d 1007, 1024 (3d Cir. 2008)).

62 Id.

63 Nitkin v. Main Line Health, 67 F.4th 565, 570 (3d Cir. 2023) (citing Mandel v. M & Q

Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013)). See also Kahan v. Slippery Rock Univ.

of Penn., 50 F. Supp. 3d 667, 696-97 (W.D. Pa. 2014) (observing that the “operative elements”

of a hostile work environment claim under Title VII and Title IX are “essentially the same”).

64 Kahan, 50 F. Supp. 3d at, 696-97.

1. Intentional Discrimination

Doe alleges that, after Vanburen learned Doe was pregnant, he began harassing

her at work.65 Doe says that Vanburen pressured her to get an abortion and verbally and

physically harassed her.66 Penn State argues that there is no evidence in the record of

verbal or physical harassment and that “difficult family planning conversations do not

necessarily constitute gender-based harassment.”67 Further, Penn State suggests that, to

the extent Vanburen may have harassed Doe, it was due to their personal situation,

“their shared circumstance of having a child together,” and not because of Doe’s

gender.68

Title VII prohibits employment discrimination based on an individual’s gender.69

The Pregnancy Discrimination Act, codified within Title VII, provides that “because of

sex” or “on the basis of sex” includes “on the basis of pregnancy, childbirth, or related

medical conditions.”70 This includes harassment based on a woman’s decision not to

abort her pregnancy.71 Penn State acknowledges that Doe and Vanburen “discuss[ed]

all aspects of their situation” including “potentially obtaining an abortion” “both inside

65 E.g., Compl. ¶¶ 50-51.

66 MSJ Opp. 27.

67 MSJ Br. 10-11.

68 Id. at 11.

69 Doe v. C.A.R.S. Protection Plan Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008) (citing 42 U.S.C.

§ 2000e-2(a)).

70 42 U.S.C. § 2000(e)(k).

71 Cf. C.A.R.S., 527 F.3d at 364 (holding that Title VII prohibits discrimination based on a

woman’s decision to have an abortion).

and outside of work.”72 Though, as the baby’s father, Vanburen “would be well within

his right to communicate with the mother about how he thought their pregnancy should

be handled,” it does not follow that he may exercise this right in the workplace.73 Doe’s

willingness to have such conversations away from work “does not constitute a waiver

of . . . her legal protections against unwelcome and unsolicited sexual harassment.”74

This is not a dispute over mere vulgarities that threatens to “trivialize the important

values protected by Title VII and elevate a gross workplace dispute into a federal

case.”75 Vanburen’s alleged harassment of Doe based on her pregnancy is expressly

prohibited by the text of the statute, and thus, among the core “important values

protected by Title VII.”

The issue then becomes whether the alleged comments by Vanburen were

unwelcome. On or about January 7, 2020, Doe told Vanburen that she was pregnant.76

Doe also told coworkers Amanda Peters, Jill Eastwood, and Duane Johnson that she

was upset Vanburen was ignoring her.77 Later, in mid-January, Vanburen told his wife

72 MSJ Br. 8. Penn State also takes the contradictory position that Vanburen did not tell Doe to

get an abortion at work. Id. at 9. As discussed below, even if Penn State did not intend to

concede that Vanburen did make such comments at work, a reasonable juror could find that he

did.

73 Id. at 9.

74 See Katz v. Dole, 708 2d. 251, 254 n.3 (4th Cir. 1983).

75 Cf. Davis v. Coastal Intern. Sec., Inc., 275 F.3d 1119, 1126 (D.C. Cir. 2002).

76 SMF ¶ 78; RSMF ¶ 78.

77 See Def. Ex. K, Doc. 32-13 (“SVPO Tr.”) at 107:12-108:22 (Peters testifying that Doe

discussed the pregnancy with her in December 2019), 126:10-20 (Johnson testifying regarding

the conversation when he first learned Doe was pregnant), 100:17-101:10 (Eastwood testifying

regarding a conversation with Doe about Vanburen ignoring her prior to him telling his wife

about the pregnancy).

of the pregnancy.78 At some point, Doe “told Mr. Steffen that she did not want to work

around Mr. Vanburen anymore.”79 Doe claims that, on multiple occasions, she told

Steffen that Vanburen had called her a whore and told her that she “really needed to

think about getting an abortion.”80 In response, Steffen attempted to change Doe’s

schedule to limit the shifts the two worked together.81

Viewing the limited evidence available in the light most favorable to Doe, the

Court finds that a reasonable jury could conclude that Vanburen harassed Doe because

of her gender. Even crediting their coworkers’ testimony, all it shows is that, at some

point in early-January 2020, Vanburen was ignoring Doe.82 It does not follow that,

because Vanburen allegedly ignored Doe in the first half of January, he continued to do

so until Doe left the NLI on February 7, 2020. Penn State suggests “Mr. Vanburen’s

alleged hostility at work [is] without any support in the record.”83 Not so. Doe testified

78 Def. Ex. F, Doc. 32-7 (“Vanburen Aff.”) ¶¶ 73-77 (stating that Vanburen told his wife about

the pregnancy and began keeping to himself at work “[i]n the middle of January 2020”). Each

of the conversations with Peters, Eastwood, and Johnson occurred before Vanburen had

informed his wife of the pregnancy.

79 SMF ¶¶ 119-120; RSMF ¶¶ 119-120.

80 Def. Ex. C, Doc. 32-4 (“Pl. Dep. Tr.”) at 111:13-114:24.

81 SMF ¶ 122; RSMF ¶ 122. In his Affidavit, Steffen says that he made the scheduling change in

an attempt to “prevent employees’ personal drama from becoming a distraction at work.” Def.

Ex. E, Doc. 32-6 (“Steffen Aff.”) ¶¶ 106-108.

82 Doe disputes the testimonies of Peters, Eastwood, and Johnson. ROSF ¶ 116. Peters testified

that she remembered the conversation with Doe happening in late December. SVPO Tr. at

107:12-108:22. This would contradict Doe’s claim that she learned she was pregnant on

January 7, 2020. However, there is insufficient record evidence for the Court to determine

whether Peters may be misremembering the timing of a conversation that occurred over a year

prior or Doe suspected she was pregnant in December 2019 but had not yet taken a pregnancy

test confirming as much. Contra SVPO Tr. 110:3-17 (Peters testifying that she received

Facebook messages from Doe “somewhere right before, like, New Year’s Eve”).

83 MSJ Br. 11.

at her deposition regarding the alleged hostility. Deposition testimony is evidence, and

the Court cannot, on a motion for summary judgment, look past it in favor of the

affidavits of Steffen and Vanburen.

2. Severe or Pervasive Discrimination

Penn State advances two arguments that any harassment is not sufficiently severe

or pervasive: 1) “any workplace harassment at the NLI was, contrary to [Doe’s] claims,

perpetrated by her;”84 and 2) “[e]ven if Mr. Vanburen engaged in the behavior [Doe]

describes, [it] is a stark contrast from the frequent harassment required by the courts to

meet the severe and pervasive prong.”85

First, though Penn State may “respectfully disagree,” the Court does find that

the narrative of Doe’s alleged harassment of Vanburen is irrelevant.86 As discussed

above, the testimony of Vanburen’s and Doe’s coworkers reveals that Doe “wanted

better communication with Mr. Vanburen . . . after they had sexual intercourse,” but

says nothing about the time period after Vanburen notified his wife of the pregnancy.87

Steffen’s statements that Vanburen “began speaking to [Doe] at the NLI much less

frequently than he did before their pregnancy” and that Doe “appeared angry that Mr.

Vanburen stopped speaking with her in a social manner” are no more definitive.88

Again, even if the Court were to credit the statements of their co-workers they, viewed

84 Id. at 19.

85 Id. at 21.

86 Cf. id. 21.

87 Id. 17.

88 Steffen Aff. ¶ 99-100.

in the light most favorable to Doe, paint an incomplete picture of the environment at

the NLI and the relationship between Vanburen and Doe from mid-January until

February 7, 2020. A jury may “give[] great weight”89 to the testimony of Doe’s co-

workers and find that Doe herself is “far from credible,”90 but the Court may not.91

Second, a reasonable juror could find that the alleged harassment was sufficiently

pervasive or severe. “[S]everity and pervasiveness are alternate possibilities: some

harassment may be severe enough to contaminate an environment even if not pervasive;

other, less objectionable conduct will contaminate the workplace only if it is

pervasive.”92 “Whether an environment is hostile requires looking at the totality of the

circumstances, including: ‘the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work performance.’”93 The

inquiry is guided by whether the harassment “amount[s] to a change in the terms and

conditions of employment.”94

Penn State makes much of the fact Doe “admits [she and Vanburen] worked

together only four times after he learned she was pregnant.”95 Penn State suggests that

89 MSJ Br. 17.

90 Id. at. 20.

91 See Liberty Lobby, 477 U.S. at 255 (“Credibility determinations, the weighing of evidence,

and the drawing of legitimate inferences from the facts are jury functions, not those of a

judge[.]”).

92 Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017) (quoting Jensen v. Potter, 435 F.3d

444, 449 (3d Cir. 2006)).

93 Id. (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)).

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

95 MSJ Br. 21.

“three shifts plus fifty minutes is a stark contrast from the frequent harassment required

by the courts to meet the severe and pervasive prong.”96 In support, Penn State cites

Brown-Baumbach v. B & B Automotive, Inc. (ten alleged instances of harassment over

the course of four months);97 Martinez v. Rapidgm, Inc. (four alleged instances of

harassment over three years);98 and Austin v. Norfolk Southern Corp. (three alleged

instances of harassment over seven months).99 Three (or four) shifts over a period of

three-and-a-half weeks100 is more pervasive than the examples cited by Penn State and,

if the alleged harassment is sufficiently severe, enough to meet the severe or pervasive

prong.

As discussed above, the alleged harassment is more severe than “occasional

insults, teasing, or episodic instances of ridicule.”101 In his affidavit, Steffen states that

he “believed that scheduling [Doe] and Mr. Vanburen for different shifts at the NLI

would prevent employees’ personal drama from becoming a distraction at work.”102

The parties may dispute who is to blame for the “distraction,” or whether it rose to the

level of severity required to support a claim for a hostile work environment. However,

there is insufficient record evidence for the Court to resolve that dispute on a motion

for summary judgment.

96 Id.

97 2010 WL 2710543, at *8 (E.D. Pa. July 7, 2010).

98 290 F. App’x 521, 524-25 (3d Cir. 2008).

99 158 F. App’x 374, 378-79 (3d Cir. 2005).

100 SMF ¶ 123; RSMF ¶ 123.

101 Martinez, 290 F. App’x at 525 (quoting Jensen, 435 F.3d at 451).

102 Steffen Aff. ¶ 107.

3. Detrimental Impact

To meet the third prong of the hostile work environment test, Doe must show

that the alleged harassment “actually altered the conditions of [her] employment.”103

The parties agree that, at some point, Doe “told Mr. Steffen that she did not want to

work around Mr. Vanburen anymore” and asked to be moved to different shifts.104

Though he was able to reduce the number of shifts Doe and Vanburen worked together,

he was unable to grant the request entirely.105 After Doe left the NIL on February 7,

2020, she sent Steffen text messages stating that she had “been . . . the adult in this

situation but [was] tired of the harassment” and that she “loved [her] job” and felt that

she was “being pushed out the door.”106 A reasonable juror could find that the alleged

harassment detrimentally affected Doe and altered the conditions of her employment.

4. Reasonable Person

Whether the alleged harassment would have detrimentally impacted a reasonable

person in like circumstances “substantially overlaps with the third and fourth elements”

of a hostile work environment claim.107 As the Court has concluded that there are issues

of material fact regarding whether Doe was subject to harassment that was severe or

pervasive enough to have a detrimental impact on her, the inquiry here is essentially

whether Doe’s subjective perception of the harassment was objectively unreasonable.

103 Harris, 510 U.S. at 21-22.

104 SMF ¶ 119-20.

105 SMF ¶¶ 121-22; RSMF ¶¶ 121-22

106 Steffen Aff. ¶¶ 125-26.

107 Brooks v. CBS Radio, Inc., 342 F. App’x 771, 776 n.5 (3d Cir. 2009) (citing Jensen, 435 F.3d

at 451).

The Court does not find that it was. A reasonable person in Doe’s position could have

been detrimentally impacted by repeatedly being called a whore and told that she should

get an abortion.108

At a minimum, the alleged harassment suffered by Doe was at least as abusive

as the harassment that Penn State accuses Doe of engaging in at the NLI. Penn State

suggests that it is Doe who created a hostile work environment when she, “in direct

contradiction to Mr. Vanburen’s wishes,” “share[d] the news about his infidelity with

their NLI coworkers.”109 The Court is skeptical that Doe sharing the news, even against

Vanburen’s wishes, that he had conceived a child with Doe out of wedlock is sufficient

to create a hostile work environment, either in the colloquial or legal sense. But to the

extent that Penn State maintains that it is, the Court cannot then accept the argument

that the alleged harassment by Vanburen of Doe would not offend a reasonable person.

5. Respondeat Superior (Title VII)

Under Title VII, “[a]n employer will be liable for the harassing conduct of the

alleged victim’s coworker” if the employer “knew or should have known about the

harassment, but failed to take prompt remedial action.110 “Even if the remedial action

does not stop the alleged harassment, it is ‘adequate’ if it is ‘reasonably calculated’ to

108 Pl. Dep. Tr. 111:13-114:24.

109 MSJ Br. 15.

110 Andreoli v. Gates, 482 F.3d 641, 644 (3d Cir. 2007) (citing Bonenberger v. Plymouth Twp.,

132 F.3d 20, 26 (3d Cir. 1997); Bouton v. BMW of N. Am., Inc., 29 F.3d 103, 106 (3d Cir.

1994); Jensen v. Potter, 435 F.3d 444, 453 (3d Cir. 2006)).

end the harassment.”111 It is undisputed that Doe asked Steffen to work different shifts

than Vanburen.112 Penn State argues Doe cannot claim that Steffen’s “moving her away

from her alleged harasser, per her request, was not reasonably calculated to address her

concerns.”113 This overstates Steffen’s response. Though Steffen “made an effort to

alter [Doe’s] schedule to meet that request,” he was unable to do so entirely. Making an

effort to take remedial action is not the same as actually taking remedial action.

As Penn State notes, after Doe left the NIL for the last time on February 7, 2020,

she texted Steffen: “I come to you about a problem. You addressed it.”114 From January

13, 2020 to January 27, Doe worked seven shifts, and only one with Vanburen.115 Then,

the next three times Doe went to work, Vanburen was there.116 A reasonable juror could

read Doe’s text, look at the timeline, and conclude that Steffen had temporarily

addressed the problem, only for it to recur when Steffen could no longer accommodate

her request. Penn State concedes as much, asserting that Steffen “could not consistently

provide [Doe] the morning shift because she was a part-time employee who was not in

111 Id. (citing Jensen, 435 F.3d at 453; Knabe v. Boury Corp., 114 F.3d 407, 412-13 (3d Cir.

1997)).

112 MSJ Br. 32; SMF ¶ 120; RSMF ¶ 120.

113 MSJ Br. 32.

114 SMF ¶ 141; RSMF ¶ 141. Doe does not dispute that she sent a text but notes that “[t]he quoted

text, however, is from a document that Steffen prepared, not the actual text message.” If Doe

intended to raise an objection about the quoted text, this is insufficient to do so.

115 Steffen Aff. Ex. C, Doc. 32-6 at 32; Steffen Aff. Ex. D, Doc. 32-6 at 35-36.

116 Id. This includes a shift on February 1, 2020, when their shifts overlapped for just under one

hour.

the Teamsters Union,” unlike Vanburen.117 Remedial action is adequate where it is

reasonably calculated to end, not postpone the alleged harassment.

Therefore, the Court will deny Penn State’s Motion for Summary Judgment as

to Count I.

6. Deliberate Indifference (Title IX)

An employer is deliberately indifferent where the “response to the harassment or

lack thereof is clearly unreasonable in light of the known circumstances.”118 The

employer must “merely respond to known . . . harassment in a manner that is not clearly

unreasonable.”119 Though the Court has found that a reasonable juror could find

Steffen’s response was ultimately inadequate, Steffen’s attempt to remedy the situation

was not clearly unreasonable. In the text message Doe sent to Steffen after she left the

NIL on February 7, 2020, she acknowledges that Steffen had, at least initially, addressed

the “problem” and she “want[ed] to talk to [Steffen]” about it.120 Steffen cannot have

acted with deliberate indifference where Doe expressed that she was initially satisfied

with his response, and a desire to discuss it further.

Therefore, the Court will grant Penn State’s Motion for Summary Judgment as

to Count IV.

117 SMF ¶ 121-22.

118 See Davis Next Friend LaShonda D. v. Monroe Cnty Bd. of Educ., 526 U.S. 629, 644 (1999)

(defining deliberate indifference in a case of student-on-student sexual harassment).

119 Id. at 649.

120 SMF ¶ 141; RSMF ¶ 141.

C. Constructive Discharge (Count II)

To prevail on a hostile environment constructive discharge claim, Doe must

show “working conditions so intolerable that a reasonable person would have felt

compelled to resign.”121 Doe concedes that, after she left work on February 7, 2020,

“she intended to remain employed with Penn State because she wanted a career at Penn

State.”122 On February 10, 2020, Doe, having not heard back from Steffen, reached out

to Penn State Human Resources Consultant, Carol Eicher.123 At this point, it cannot be

said that the environment at the NLI “present[ed] a ‘worst case’ harassment scenario,

harassment ratcheted up to the breaking point.”124

The Third Circuit has identified a number of other circumstances, if present,

would permit a reasonable jury to “find that the employer permitted conditions so

unpleasant or difficult that a reasonable person would have felt compelled to resign:”125

Whether the employer (1) “threatened the employee with discharge” or

“urged or suggested that she resign or retire,” (2) “demoted her,” (3)

“reduced her pay or benefits,” (4) “involuntarily transferred her to a less

desirable position,” (5) altered her “job responsibilities,” or (6) gave

“unsatisfactory job evaluations.”126

121 Pennsylvania State Police v. Suders, 542 U.S. 129, 147 (2004).

122 MSJ Opp. 9.

123 SMF ¶ 155; RSMF ¶ 155.

124 Suders, 542 U.S. at 147-48. See also SMF ¶ 170-1; RSMF ¶ 170-1 (Doe “did not tell Ms.

Eicher that she quit her job” when she walked out of work on February 7, 2020.)

125 Colwell v. Ride Aid Corp., 602 F.3d 495, 502 (3d Cir. 2010) (quoting Duffy v. Paper Magic

Grp., Inc., 265 F.3d 163, 167 (3d Cir. 2001)).

126 Id. at 503 (quoting Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1161 (3d Cir. 1993)).

It is undisputed that Penn State ultimately proposed a transfer to the

Housekeeping department at NLI.127 The parties diverge on the issue of whether this

proposal rises to the level of an involuntary transfer to a less desirable position. Penn

State argues that Doe fails to support her claim “that she was being forced to return to

work in a position of less pay and less professional advancement.”128 Instead, Penn

State avers that “[t]he transfer to Housekeeping was simply an option presented to

Plaintiff that went without response.”129 For her part, Doe notes that “[a]ccording to

Jacqueline Weyer, Director of Housekeeping at the NLI for fifteen years, there was only

one job (technical service) in the Housekeeping department at the NLI, so there was no

opportunity to move up.”130 Doe contrasts that with the careers of Steffen and

Vanburen, whose “career advancement show that culinary offered significant

professional advancement.”131

The Court finds that a reasonable juror could conclude that the transfer to

Housekeeping was less desirable.132 Doe need not present evidence that NLI

127 SMF ¶ 210; RSMF ¶ 210.

128 MSJ Reply 19.

129 Id. at 20.

130 MSJ Opp. 36.

131 MSJ Sur-reply at 11 (citing SMF ¶¶ 54-62).

132 Penn State suggests that Doe’s argument that a Housekeeping position is less desirable is

foreclosed by Doe having applied to that position in the past. However, both applications

predate her transfer to her transfer to her position at the time she left the NLI. Further, Doe

appears to raise a colorable argument regarding the accuracy of Penn State’s records on this

point. RSMF ¶ 34.

housekeepers are paid less than dishwashers.133 Nor is it a requirement that she accept

the transfer and show up for work as a housekeeper to show that she had, in fact, been

transferred.134 The only record evidence regarding the potential transfer are the

competing testimonies of Doe, Perry, Weyer, and Eicher, which, as explained above,

precludes a grant of summary judgment.

Therefore, the Court will deny Penn State’s Motion for Summary Judgment as

to Count II.

D. Title VII (Count III) and Title IX (Count V) Retaliation

To establish a prima facie retaliation case under Title VII or Title IX, a plaintiff

must prove (1) “she engaged in activity protected” by Title VII or Title IX; (2) “she

suffered an adverse action;” and (3) “there was a causal connection between the two.”135

As discussed above, Doe has testified that she complained to Steffen multiple times

regarding harassment by Vanburen. It is also undisputed that Doe complained to Eicher

regarding the alleged harassment. As the Court has found that the alleged harassment

is prohibited by Title VII and Title IX, Doe’s complaints about the harassment are

sufficient to satisfy the first prong. 136

133 See Colwell, 602 F.3d at 503 (listing circumstances which, independently, are sufficient to

establish a constructive discharge claim including reduction in pay or a transfer to a less

desirable position).

134 See Sullivan v. Widener University, 2022 WL 3030725, at *7 (E.D. Pa. Aug. 1, 2022) (denying

summary judgment on the grounds that the plaintiff may “feel[] compelled to retire after being

given a notice of demotion but leaves prior to any paperwork effectuating the change is filed).

135 Doe v. Mercy Catholic Medical Center., 850 F.3d 545, 564 (3d Cir. 2017).

136 See Doe v. Triangle Doughnuts, LLC, 472 F. Supp. 3d 115, 139 (E.D. Pa. 2020) (observing

that complaining about prohibited conduct is protected activity).

As to the second prong, Doe must “must show that a reasonable employee would

have found the alleged retaliatory actions ‘materially adverse’ in that they ‘well might

have dissuaded a reasonable worker from making or supporting a charge of

discrimination.’”137 Doe argues that after “she complained to Steffen, he stopped

mentoring her and spoke to her about her attendance for the first time, despite alleged

documented prior absences.”138 As to the latter, a reasonable juror could find a loss of

mentoring opportunities to be materially adverse.139 However, the same cannot be said

of a mere discussion about attendance issues. Doe also argues that she was transferred

to housekeeping because of her complaint to Eicher which, as discussed above, a

reasonable juror could find to be materially adverse.140

Penn State argues that there is no evidence other than Doe’s testimony that

Steffen had discontinued mentoring her or that she would have been transferred to

housekeeping. Doe’s testimony is sufficient to survive summary judgment where it is

not contradicted by any non-testimonial record evidence. Further, the Court has already

addressed, and rejected Penn State’s argument that it had not actually transferred Doe

to housekeeping.

137 Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006) (quoting Burlington Northern

and Santa Fe Ry. Co. v. White, 548 U.S. 53, 70 (2006))

138 MSJ Opp. 39.

139 See Burlington, 548 U.S. at 70 (observing that “retaliat[ing] by excluding an employee from a

weekly training lunch that contributes significantly to the employee’s professional

advancement might well deter a reasonable employee from complaining about

discrimination”).

140 MSJ Opp. 40.

“Because retaliation is almost never subject to proof by direct evidence” a

plaintiff will generally have to “rely on circumstantial evidence to prove a retaliatory

motive.”141 Doe can satisfy her burden “with evidence of either (1) an unusually

suggestive temporal proximity between the protected activity and the allegedly

retaliatory action, or (2) a pattern of antagonism with timing that suggests a causal

link.”142 Doe testified that Steffen ceased mentoring her “[a]fter Trea had gone to him

and told him that I was having Trea’s baby,” not when she complained to Steffen.143

Therefore, even if the Court assumes that Steffen did stop mentoring Doe, it cannot be

the case that he did so in retaliation for complaint she had not yet made. Conversely,

assuming arguendo that Penn State had transferred Doe to housekeeping, it is

undisputed that the alleged transfer occurred shortly after her complaint to Eicher.

Therefore, Doe has established a prima facie case of retaliation as to the transfer.

The burden shifts to Penn State to present evidence that, if true, “would permit

the conclusion that there was a nondiscriminatory reason” for the transfer.144 Penn State

argues that the transfer was motivated by a desire to “accommodate [Doe’s] request to

not work with Mr. Vanburen.”145 The burden then shifts back to Doe to show that Penn

State’s explanation for her transfer is pretextual, that is “both that the reason was false,

and that discrimination was the real reason.”146 She “cannot simply show that [Penn

141 Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016).

142 Id.

143 Doe Dep. Tr. 241:1-2.

144 Fuentes v. Perski, 32 F.3d 759, 763 (3d Cir. 1994).

145 MSJ Br. 52.

146 Fuentes, 32 F.3d at 763.

State’s] decision was wrong or mistaken, since the factual dispute at issue is whether

discriminatory animus motivated the employer, not whether the employer is wise,

shrewd, prudent, or competent.”147 The Court finds that Doe has not met this burden.

Though the Court has found that a reasonable juror could find that the transfer was

materially adverse, perhaps even sufficient to support a constructive discharge claim,

there is nothing in the record that suggests Penn State’s decision to transfer Doe was

motivated by discriminatory animus. A reasonable juror could conclude that Penn

State’s response was unwise or imprudent, but not that it was discriminatory.

Therefore, the Court will grant Penn State’s Motion for Summary Judgment as

to Counts III and V.

IV. CONCLUSION

For the foregoing reasons, Penn State’s Motion to Strike is denied. Penn State’s

Motion for Summary Judgment is Granted as to Counts III, IV, and V, and denied as to

Counts I and II.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

147 Id. at 765.