# Cuff v. Commonwealth Of Pennsylvania

> District Court, M.D. Pennsylvania · November 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10413953

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** November 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10413953

## How later opinions describe it (automated extraction)

- declining summary judgment because harassment occurred on a daily basis

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRANDY CUFF, No. 4:21-CV-00068

Plaintiff, (Chief Judge Brann)

v.

COMMONWEALTH OF
PENNSYLVANIA and
DEPARTMENT OF CORRECTIONS,

Defendants.

MEMORANDUM OPINION

NOVEMBER 28, 2023
I. BACKGROUND
“Congress enacted [Title VII of the Civil Rights Act of 1964 (“Title VII”)] to
improve the economic and social conditions of minorities and women by providing
equality in the work place.”1 Many states have adopted similar statutes, such as the
Pennsylvania Human Relations Act (“PHRA”), to eradicate workplace harassment.2
Despite having lofty goals, these legislative schemes are not “general civility
code[s].”3 Not every unpleasant work environment is transformed into a cause of
action. To survive this motion for summary judgment, Brandy Cuff must sufficiently
identify facts that shift her experience into an actionable claim.

1 29 C.F.R. § 1608.1(b) (2011).
2 See 43 PA. CONS. STAT. § 951 (2023).
A. Procedural History
On January 12, 2021, Plaintiff filed a two-count Complaint alleging violations
of Title VII and the PHRA. She claims to have faced sexual harassment and

retaliation while employed by the Commonwealth of Pennsylvania’s Department of
Corrections (“DOC”). Defendants filed a motion for summary judgment on August
21, 2023. The motion is now ripe for disposition; for the reasons below, it is granted.

II. LEGAL STANDARDS
A. Summary Judgment
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.”4 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.”5 A defendant “meets this
standard when there is an absence of evidence that rationally supports the plaintiff’s
case.”6 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.”7

4 FED. R. CIV. P. 56(a).
5 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010).
6 Clark v. Mod. Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993).
7 Id.
In assessing “whether there is evidence upon which a jury can properly
proceed to find a verdict for the [nonmoving] party,”8 the Court “must view the facts
and evidence presented on the motion in the light most favorable to the nonmoving

party.”9 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.”10 Finally,

although “the court need consider only the cited materials, . . . it may consider other
materials in the record.”11
B. Local Rule 56.1
Local Rule 56.1 requires all motions for summary judgment to be

“accompanied by a separate, short, and concise statement of the material facts, in
numbered paragraphs, as to which the moving party contends there is no genuine
issue to be tried.”12 The opposing party must then file “a separate, short and concise

statement of the material facts, responding to the numbered paragraphs set forth” by
the moving party.13 “All material facts set forth in” the moving party’s statement
“will be deemed to be admitted unless controverted by the statement required to be

8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (quoting Schuylkill & Dauphin Imp.
Co. v. Munson, 81 U.S. 442, 448 (1871)).
9 Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020).
10 FED. R. CIV. P. 56(e)(2); see also Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613-14 (3d
Cir. 2018).
11 FED. R. CIV. P. 56(c)(3).
12 L.R. 56.1.
13 Id.
served by the opposing party.”14 “Statements of material facts in support of, or in
opposition to, a motion shall include references to the parts of the record that support
the statements.”15

1. Plaintiff’s Response to Defendants’ Statement of Undisputed
Material Facts
As required by Local Rule 56.1, Cuff filed a response to Defendants’
Statement of Undisputed Material Facts (“SMF”). Defendants contend that Plaintiff
has nevertheless admitted the SMF because her response merely asserted legal
conclusions, failed to properly cite the record, and “generally added additional[,]

superfluous commentary.”16 Although a largely accurate summary of Cuff’s
response, the cases cited by Defendants involve much more glaring failures to
comply with Local Rule 56.1.17 Simply including legal conclusions and extraneous

information does not warrant admitting all of Defendants’ SMF as undisputed.
2. Plaintiff’s Additional Material Facts
Local Rule 56.1 does “not permit a non-moving party to file additional factual
statements that do not respond to the movant’s statement, and such nonresponsive

factual statements may be stricken or disregarded.”18 “[I]n the exercise of its

14 Id.
15 Id.
16 Doc. 35 (Defendants’ Reply Brief in Support of Motion for Summary Judgement) at 2.
17 See id. at 2-3.
18 Suchocki v. FedEx Freight, Inc., 3:20-cv-01048, 2023 U.S. Dist. LEXIS 7457, at *4, n.2 (M.D.
Pa. Jan. 17, 2023) (citing Farmer v. Decker, 353 F. Supp. 3d 342, 347, n.1 (M.D. Pa. 2018)
and Barber v. Subway, 131 F. Supp. 3d 321, 322, n.1 (M.D. Pa. 2015)).
discretion,” the Court has considered these “additional[,] non-responsive factual
statements but only because the defendants have responded to each of them in
corresponding numbered paragraphs.”19

III. FACTUAL BACKGROUND
Plaintiff began working as a DOC corrections officer trainee in October 2018
and transferred to State Correctional Institute Muncy (“SCI Muncy”) in May 2019.20

While at SCI Muncy, Cuff’s personal OC spray ended up in the prison under unusual
circumstances.21 Plaintiff faced no discipline for this violation after being exonerated
by an internal investigation.22 Shortly after this incident, Sergeant Brenda Rippey
“announced” at a union meeting “that a ‘bedazzled twat’ had brought her OC spray

into the facility and [had] not been disciplined;” she then proceeded to “wonder who
she [was] fucking.”23 At SCI Muncy, “bedazzled twat” refers to female corrections
officers that were suspected of “dating or sleeping” with management, commonly

19 Id. (citing Rau v. Allstate Fire & Cas. Ins. Co., 793 F. App’x 84, 87 (3d Cir. 2019); Loving v.
FedEx Freight, Inc., Civ. A. No. 3:18-CV-508, 2020 U.S. Dist. LEXIS 81379, at *1, n.1 (M.D.
Pa. May 8, 2020); and Bashore v. Pocono Mt. Reg’l Police Comm’n, Civ. A. No. 3:18-CV-
425, 2020 U.S. Dist. LEXIS 50065, at *1, n.1 (M.D. Pa. Mar. 23, 2020)).
20 See Doc. 27 (Defendant’s SMF), Ex. A (Transfer Letter to SCI-Muncy); Doc. 30 (Plaintiff’s
AMF), Ex. M (Nov. 1, 2018 Letter from Ty Stanton).
21 See Doc. 30 (Plaintiff’s AMF) ¶ 20. Defendants deny this paragraph but only contend that the
individual who brought the OC spray and duty belt into the prison was not identified. Due to
this, the underlying event itself is undisputed. See Doc. 33 (Defendant’s Response to Plaintiff’s
Counterstatement of Facts) ¶ 20.
22 Id.
23 See Doc. 30 (Plaintiff’s AMF) ¶ 21; Doc. 33 (Defendant’s Response to Plaintiff’s
Counterstatement of Facts) ¶ 21. Defendants admitted that the “bedazzled twat” incident
involving Sergeant Rippey occurred and clarified that it happened at a union meeting. Ample
evidence in the record, including Plaintiff’s own deposition, supports this clarification.
referred to as “white shirts,” to avoid discipline and receive preferrable
assignments.24
Cuff complained about this incident and an encounter with Officer Terease

Maxwell to Stacy Waters, the Chief of Investigations and Training for the DOC’s
Equal Employment Opportunity (“EEO”) Office on January 2, 2020.25 After a drawn
out investigation, Waters substantiated the allegations against Rippey but cleared

Maxwell of any wrongdoing.26 Before any corrective action was taken, Rippey
retired.27
On January 6, 2020, Plaintiff requested a hardship transfer out of SCI Muncy
because it was “a hostile work environment.”28 Prior to the conclusion of the Waters

investigation or any decision regarding the hardship transfer request, Cuff submitted
a handwritten and notarized resignation letter to Roberta Boyles-Confair, the labor
relations coordinator for SCI Muncy, on January 9, 2020.29 This letter states:

I am writing this letter to advise you that due to the harassment I have
received/endured since transferring into this prison, I am hereby
resigning from my position as a corrections officer here at SCI Muncy.
I have been subjected to verbal abuse, [i]mplied threats, degrading

24 See Doc. 27 (Defendants’ SMF) ¶ 5; Doc. 30 (Plaintiff’s AMF) ¶ 66. Defendants do not
seriously dispute the definition of “bedazzled twat.” See Doc. 33 (Defendant’s Response to
Plaintiff’s Counterstatement of Facts) ¶ 66.
25 See Doc. 30 (Plaintiff’s AMF) ¶ 45; Doc. 27 (Defendants’ SMF), Ex. C (DOC EEO File).
26 Id.
27 See Doc. 33 (Defendants’ Response to Plaintiff’s Counterstatement of Facts) ¶ 7. It is
undisputed that Rippey retired before any corrective action occurred; the parties dispute
whether DOC “permitted” her to retire. See id.
28 Doc. 30 (Plaintiff’s AMF), Ex. P (Hardship Transfer Request).
29 See Doc. 30 (Plaintiff’s AMF), Ex. A (Cuff Deposition) ¶¶ 159:1-166:24; Ex G (Boyles
Deposition) ¶¶ 23:1-25; and Ex. Q (Notarized Letter).
messages all which are the setting for this hostile work place
environment. My last day is effective immediately and this letter serves
as my official notice of resignation.

I apologize for any inconvenience my abrupt resignation may cause. It
was never my intention, but due to my own self preservation of health
and mind I feel this is my option at this time. I hope by bringing this
situation and condition of this prison to light any further harassment of
myself or other employees can be addressed, handled more
appropriately, and eventually eliminated from being the normal
occurrences that are accepted at SCI Muncy.30

DOC proceeded to send Plaintiff a standardized letter confirming her
resignation from her “Corrections Officer 1 position with the Department of
Corrections, State Correctional Institute at Muncy” on January 14, 2020.31
In an email exchange on January 23, 2020, employees from Pennsylvania’s
centralized Office of Administration discussed Cuff’s hardship transfer and
subsequent resignation. 32 The employees on this email thread were Jonathan

30 Doc. 30 (Plaintiff’s AMF), Ex. Q (Notarized Letter).
31 Doc. 27 (Defendant’s SMF), Ex. G (January 14, 2020 Separation Letter).
32 See Doc. 27 (Defendants’ SMF), Ex. 1 (E-mail Correspondence on Hardship Transfer
Request). Plaintiff purported to deny this in its response to Defendants’ SMF. However, the
response does not adequately identify facts in the record to contest this fact. Cuff cites a series
of unrelated facts and her own, self-serving testimony that is unsubstantiated by anything else
in the record. See Doc. 30 (Plaintiff’s AMF) at 5.
Wilson,33 Ty Stanton,34 Christopher Linn,35 and Jim Hull.36 In an update to Ty
Stanton, Wilson specifically dismissed the possibility of Cuff being misinformed on
the hardship transfer process after having spoken “with the employee and then”

Hull.37 Despite this conclusion, the hardship transfer request remained open for
several months as they awaited the results of the Waters investigation.38
Finally, Cuff filed an initial Charge of Discrimination with the Equal

Employment Opportunity Commission (EEOC) on July 21, 2020 and an Amended
Charge of Discrimination on August 6, 2020.39 In the original Charge, she described
the “bedazzled twat” union meeting incident, claimed she was “verbally harassed
and harassed by email by other employees at SCI Muncy[,]” and discussed the

circumstances leading her to submit the handwritten letter to Boyles.40 The Amended

33 Wilson worked as an assistant to Ty Stanton in the Public Safety HR Delivery Center. See Doc.
30 (Plaintiff’s AMF), Ex. H (Wilson Deposition) ¶¶ 5:9-14.
34 Stanton worked for the Commonwealth’s Office of Administration as the Public Safety
Delivery Center Manager. “[I]n a sense, [he is] the HR director for the Public Safety Delivery
Center.” This Center provides “HR services to the Pennsylvania Department of Corrections,”
amongst others. See id., Ex. D ¶¶ 5:20-25.
35 Linn worked as a Human Resource Program Manager in the Commonwealth’s Office of
Administration at this time. See id., Ex. E (Linn Deposition) ¶¶ 6:1-23.
36 Hull worked as a labor relations specialist for the Commonwealth’s Office of Administration
in the relevant time period. See id., Ex. I (Hull Deposition), ¶¶ 6:1-19.
37 See Doc. 27 (Defendants’ SMF), Ex. 1 (E-mail Correspondence on Hardship Transfer
Request). Although Hull did not remember much about the events surrounding Cuff’s hardship
transfer, he did indicate that if “Wilson wrote it [he did not] think there’s an issue” regarding
its accuracy. See Doc. 30 (Plaintiff’s AMF), Ex. I (Hull Deposition) ¶¶ 34:1-25.
38 See Doc. 30 (Plaintiff’s AMF) ¶ 59.
39 See id., Ex. J (EEOC Compl.); Ex. K (Amended EEOC Compl.).
40 Id., Ex. J (EEOC Compl.).
Charge provided greater detail regarding the “bedazzled twat” union meeting
incident and the alleged retaliation.41
IV. ANALYSIS

Defendants advance several arguments in favor of their motion for summary
judgment: that the underlying events are time-barred and unexhausted; that Plaintiff
has failed to make out the necessary elements of her claims; and that an affirmative

defense absolves Defendants of their liability.42 When analyzing Title VII and
PHRA claims, courts “generally interpret the PHRA in accord with its federal
counterpart.”43 Unless otherwise noted, any discussion pertaining to Title VII will
also apply to Cuff’s PHRA claims.

A. Statute of Limitations44
To bring a Title VII claim in a deferral state like Pennsylvania, Plaintiff must
have initially filed “a complaint with the EEOC within 300 days of the alleged

unlawful employment practice.”45 But the continuing violation doctrine allows
“discriminatory acts that are not individually actionable [to] be aggregated to make
out a hostile work environment claim; such acts ‘can occur at any time so long as

they are linked in a pattern of actions which continues into the applicable limitations

41 Id., Ex. K (Amended EEOC Compl.).
42 Doc. 28 (Brief in Support of Defendants’ Motion for Summary Judgment) at 5.
43 Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996).
44 Defendants do not make any arguments regarding the possible untimeliness of Plaintiff’s
PHRA claims. The Court will therefore exclusively focus on any events that are untimely under
Title VII.
45 Mandel v. M&Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013).
period.’”46 “‘[D]iscrete discriminatory acts are not actionable if time barred, even
when they are related to acts alleged in timely filed charges.’”47 The Supreme Court
of the United States has identified “termination, failure to promote, denial of

transfer, or refusal to hire as” discrete acts.48
The two 300-day periods created by Cuff’s administrative complaints are
September 25, 2019 and October 11, 2019, respectively.49 Four confrontations with

Officer Maxwell,50 an event involving Sergeant Rippey,51 an exchange with Sergeant
McElroy,52 and an incident involving Plaintiff’s “feminine products”53 occurred
before either 300-day period, but Cuff has sufficiently identified a “pattern of [non-
discrete] actions” to incorporate these events into her sex discrimination claim.

1. Failure to Exhaust Administrative Remedies
Before commencing suit, plaintiffs must first exhaust their administrative
remedies by “filing a timely discrimination charge with the” EEOC and the

46 Id. (quoting O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006)).
47 Id. (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)).
48 Id.
49 See Doc. 30 (Plaintiff’s AMF), Ex. J (EEOC Compl.); Ex. K (Amended EEOC Compl.).
50 See Doc. 28 (Defendants’ Brief in Support of Motion for Summary Judgment), Ex 1 (CO1
Maxwell Incidents). In these four confrontations, Maxwell berated Cuff for having the top
button of her shirt open; referred to her as a “know it all trainee”; indicated that she does not
associate with trainees; and accused Plaintiff of stepping on another officer’s lunch bag. Id.
51 See Doc. 30 (Plaintiff’s AMF) ¶ 18. On July 19, 2019, an exchange between Cuff and Rippey
occurred over the phone in which Rippey indicated that Cuff thought she was special for
having a specific assignment. Id.
52 See id. ¶ 16. Sergeant McElroy asked Cuff how she could afford the car she drove and
inquired as to which supervisor she was married to. Id.
53 See id. ¶ 17. A male corrections officer made it difficult for Plaintiff to bring hygiene products
into the prison and proceeded to confront Cuff after she raised this incident with a training
supervisor. Id.
Pennsylvania Human Relations Commission (“PHRC”).54 Any “ensuing suit is
limited to claims that are within the scope of the initial administrative charge.”55
The Court must first determine whether Cuff properly filed a complaint with

the PHRC. The Amended Charge states that it was to be dual filed with the EEOC
and PHRC.56 Therefore, subject to the discussion below, her PHRA claims have been
properly exhausted.

Turning to the substance of the filings, Cuff described verbal harassment from
other employees, the “bedazzled twat” union meeting incident, and retaliation she
faced for filing the internal DOC complaint, including being tricked into resigning.57
Most of the events underlying her claims are within the scope of any administrative

investigation prompted by these averments. By suggesting that she had been verbally
harassed, the allegations in subparagraphs 9(a)-(d) and 9(h)-(i) of the Complaint,58
the conversation with Sergeant McElroy,59 the confrontations with Maxwell and

Rippey preserved by the continuing violation doctrine,60 and the incident involving

54 Barzanty v. Verizon Pa., Inc., 361 F. App’x 411, 413 (3d Cir. 2010).
55 Id. (citing Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996)).
56 See Doc. 30 (Plaintiff’s AMF), Ex. K (Amended EEOC Compl.).
57 Id., Ex. J (EEOC Compl.); Ex. K (Amended EEOC Compl.).
58 See Doc. 1 (Compl.) ¶¶ 9(a)-(d); 9(h)-(i). Subparagraphs 9(a)-(d) discuss incidents in which
Cuff was yelled at by a fellow employee, treated poorly for being a trainee, and the
confrontation over the lunch bag with Maxwell. Id. Subparagraph 9(h) alleges that other
officers and superiors have referred to Cuff as a “bedazzled twat” and subparagraph 9(i)
references an incident where a fellow employee called Plaintiff a “slug.” Id.
59 See Doc. 30 (Plaintiff’s AMF) ¶ 16.
60 Id.; Doc. 28 (Defendants’ Brief in Support of Motion for Summary Judgment), Ex. 1 (CO1
Maxwell Incidents).
Plaintiff’s “feminine products”61 are within the scope of the administrative
complaint. Subparagraphs 9(e)-(f) of the Complaint and the rumor that Plaintiff had
an affair with a “white shirt” have been properly exhausted by Cuff’s description of

the “bedazzled twat” union meeting incident.62 Finally, the detailed explanation of
the purported retaliation in the Amended Charge adequately exhausted that claim as
well.63

Two incidents, however, are unexhausted: being “shoulder checked” by
Maxwell and strip searching a transgender inmate without prior notification.64 The
“shoulder checking” incident involves physical harassment, an allegation that
remained unmentioned till now.65 As perceived by Cuff, this interaction with the

transgender inmate constituted sexual harassment through a job assignment.66
Again, no such allegation had been identified in the administrative complaints.67
Consequently, these two events will be disregarded.

2. Hostile Work Environment Claim
“[V]erbal or physical conduct of a sexual nature constitute[s] sexual
harassment when such conduct has the purpose or effect of unreasonably interfering
with an individual’s work performance or creating an intimidating, hostile, or

61 Id.
62 See Doc. 1 (Compl.) ¶¶ 9(e)-(g); Doc. 30 (Plaintiff’s AMF), Ex. K (Amended EEOC Compl.).
63 See Doc. 1 (Compl.) ¶ 18; Doc. 30 (Plaintiff’s AMF), Ex. K (Amended EEOC Compl.).
64 See Doc. 30 (Plaintiff’s AMF) ¶¶ 25, 28.
65 See id., Ex. J (EEOC Compl.); Ex. K (Amended EEOC Compl).
66 See id., Ex. A (Cuff Deposition) ¶¶ 90:15-91:20.
67 See id., Ex. J (EEOC Compl.); Ex. K (Amended EEOC Compl).
offensive working environment.”68 To make out this hostile work environment, Cuff
must demonstrate that: “(1) [she] suffered intentional discrimination because of [her]
sex; (2) the discrimination was pervasive and regular; (3) the discrimination

detrimentally affected [her]; (4) the discrimination would detrimentally affect a
reasonable person of the same sex in that position; and (5) the existence of
respondeat superior liability.”69 Determining if an environment is hostile requires

the Court to look at the totality of the circumstances,70 but Title VII and the PHRA
“do not countenance a ‘cause of action for mere unpleasantness’ in the workplace.”71
Defendants challenge Cuff’s ability to establish the first, second, and fourth elements
of this claim.

a. Intentional Discrimination Because of Sex
“Title VII does not prohibit all verbal or physical harassment in the
workplace.’”72 To “defeat a motion for summary judgment, a plaintiff seeking to

advance a hostile work environment claim must present some evidence indicating
that the harassing conduct of which he or she complains can be traced to his or her

68 29 C.F.R. § 1604.11 (2016).
69 Drinkwater v. Union Carbide Corp., 904 F.2d 853, 860 (3d Cir. 1990) (quoting Andrews and
Conn v. City of Philadelphia, 895 F. 2d 1469, 1482 (3d Cir. 1990)).
70 See e.g., Cardenas v. Massey, 269 F.3d 251, 261 (3d Cir. 2001) and Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 23 (1993).
71 Hubbell v. World Kitchen, LLC, 688 F. Supp. 2d 401, 419-20 (quoting Hartsell v. Duplex
Prods., Inc., 123 F.3d 766, 773 (4th Cir. 1997)).
72 Oncale, 523 U.S. at 80.
statutorily-protected trait.”73 “But harassing conduct need not be motivated by sexual
desire to support an inference of discrimination on the basis of sex.”74
Defendants correctly identify several events that are missing a sexual or

gender component. These include: the allegations in subparagraphs 9(a)-9(d) and
9(i) of the Complaint,75 the trouble with Plaintiff’s personal OC spray,76 and three of
the confrontations with Maxwell.77 Although indicative of an unprofessional work

environment, the lack of a sexual or gender element in these incidents prevents the
Court from considering these allegations. The remaining averments involve
harassment due to her status as a female corrections officer.78 Therefore, Plaintiff
has established that she suffered intentional discrimination because of her sex.

73 Hubbell, 688 F. Supp. 2d at 419 (citing Brown v. Henderson, 115 F. Supp. 2d 445, 450-51
(S.D.N.Y. 2000)).
74 Oncale, 523 U.S. at 80.
75 See Doc. 1 (Compl.) ¶¶ 9(a)-(d), 9(i).
76 See id. ¶ 9(e).
77 The three confrontations involving Maxwell that lack any sexual or gender element are: when
Maxwell called Cuff a “know it all trainee”; when Maxwell indicated that she does not
associate with trainees; and when Maxwell accused Plaintiff of stepping on another officer’s
lunch bag. See Doc. 28 (Brief in Support of Motion for Summary Judgment), Ex. 1 (CO1
Maxwell Incidents).
78 The remaining incidents are as follows: the conversation with Sergeant McElroy; the incident
where Maxwell commented on the lack of a button on Plaintiff’s uniform; the time Sergeant
Rippey accused Cuff of having “special privileges”; Sergeant Duck’s reference to rumors that
Cuff had an affair with a “white shirt”; the conversation where Sergeant Sweeley asked if
Plaintiff had an affair with a “white shirt”; the incident where an inmate alleged Cuff retaliated
against her because she was married to a supervisor involved in another lawsuit; the “bedazzled
twat” union meeting incident; the “bedazzled twat” incident involving Maxwell; and the
“feminine products” incident. See Doc. 30 (Plaintiff’s AMF) ¶¶ 16-19, 21-24.
b. Severe or Pervasive Harassment
For these discriminatory incidents to be actionable, “the offending behavior
must be sufficiently severe or pervasive to alter the victim’s employment conditions

and create an abusive environment.”79 The United States Court of Appeals for the
Third Circuit “has acknowledged that ‘the advent of more sophisticated and subtle
forms of discrimination requires [courts to] analyze the aggregate effect of all

evidence and reasonable inferences therefrom, including those concerning incidents
of facially neutral mistreatment, [when] evaluating a hostile work environment
claim.’”80
Even when viewing the remaining incidents in a light most favorable to

Plaintiff, her claim still fails on this prong. The described behavior is certainly not
severe. Courts in this Circuit have found comparable incidents involving “racial and
misogynistic language[,]” “racist graffiti and ‘racially insensitive comments[,]’” and

verbal threats to not be sufficiently severe.81 Plaintiff’s allegations also do not rise
to the level of severity seen in other cases through actions such as holding a knife to
a coworker’s breast.82

79 Troy v. State Correctional Institute-Pittsburgh, 2:11-cv-1509, 2013 WL 5511265, at *7 (W.D.
Pa. Oct. 4, 2013) (quoting Pennsylvania State Police v. Suders, 542 U.S. 129, 131 (2004)).
80 Infinity Broad. Corp. v. Pa. Human Rels. Comm’n, 893 A.2d 151, 158 (Pa. Cmmw. Ct. 2006)
(quoting Cardenas, 269 F.3d at 261-62).
81 Washington v. SEPTA, Civ. A. No. 19-4213, 2021 U.S. Dist. LEXIS 119669, at *69, n. 47
(E.D. Pa. June 28, 2021) (discussing Doe v. Triangle Doughnuts, LLC, 472 F. Supp. 3d 115,
131 (E.D. Pa. 2020); Shaw v. Temple Univ., 357 F. Supp. 3d 461, 475 (E.D. Pa. 2019); and
Woodard v. PHB Die Casting, 255 F. App’x 608, 609 (3d Cir. 2007)).
82 See Rorrer v. Cleveland Steel Container, 712 F. Supp. 2d 422, 428 (E.D. Pa. 2010).
The record also fails to support any contention that the harassment was
pervasive. Cuff has alleged that eight incidents and one rumor occurred during her
eight-month tenure at SCI Muncy. “‘Third Circuit courts have found sexual,

derogatory, or insulting statements to be actionable when they are made on a very
frequent and continuous, for example weekly, basis.’”83 An average of one incident
per month does not satisfy this standard.84 The fact that several allegations involve

“relatively benign” comments and behavior reinforces this conclusion.85
Finally, the rumor that Cuff had an affair with a “white shirt” does not satisfy
this requirement. The Third Circuit’s Spain v. Gallegos86 decision “is most
instructive” when evaluating a claim based, in part, “on gossip about the plaintiff’s

sexual activity.”87 Cuff “provides no evidence that the rumors she alleges were
widespread or enduring, but merely cites a few examples during a brief period in

83 Donahue-Cavlovic v. Borough of Baldwin, 2:15-cv-1649, 2017 U.S. Dist. LEXIS 177493, at
*25 (W.D. Pa. Oct. 26, 2017) (quoting Obergantschnig v. Saw Creek Estates Cmty. Ass’n, 12-
cv-5911, 2013 U.S. Dist. LEXIS 150016, at *20 (E.D. Pa. Oct. 17, 2013)). See also Grazioli
v. Genuine Parts Co., 409 F. Supp. 2d 569, 578 (D.N.J. 2005) (declining summary judgment
because harassment occurred on a daily basis).
84 See e.g., Guy v. Day Prods., Civ. A. No. 94-1699, 1995 U.S. Dist. LEXIS 17620, at *10 (E.D.
Pa. Nov. 29, 1995) (finding pervasiveness when harassment occurred on a weekly basis over
a ten-month period).
85 Baugh v. Robert Morris Univ., Civ. A. 16-430, 2018 U.S. Dist. LEXIS 44873, at *72 (W.D.
Pa. Mar. 20, 2018) (citing Gharzouzi v. Northwest Human Servs. of Pa., 225 F. Supp. 2d 514,
536 (E.D. Pa. 2002)). The Court considers the following incidents to be “relatively benign”:
the conversation with Sergeant McElroy; the conversation where Rippey referred to Cuff’s
“special privileges”; the “bedazzled twat” incident involving Maxwell; and the conversation
with Maxwell about the button on Plaintiff’s uniform. See Doc. 30 (Plaintiff’s AMF) ¶¶ 16-
17, 21-24.
86 Spain v. Gallegos, 26 F.3d 439 (3d Cir. 1994).
87 Bogoly v. Easton Publ’g Co., 00-cv-6457, 2001 U.S. Dist. LEXIS 24160, at *15 (E.D. Pa. Nov.
1, 2001).
which she was confronted with them.”88 This is distinguishable from the Third
Circuit’s conclusion in Spain “that ‘the rumors developed over a period of several
years.’”89 The female employee’s supervisor in Spain also both “created” and

continuously “perpetuated” the rumor through “improper behavior.”90 This
“improper behavior” differentiated that rumor from those that “might not support a
sexually hostile work environment cause of action.”91 Here, there is no indication

that the “white shirt” rumored to be having an affair with Cuff, Lieutenant Beckley,
initiated or encouraged the rumors; in fact, by Plaintiff’s own testimony, the two
only had professional interactions.92 This rumor more closely aligns with “‘idle
gossip about an alleged office romance’” than behavior that can support a sexually

hostile work environment claim.93
No rational factfinder would be able to conclude that Cuff’s allegations
establish this element. While there may well be unprofessional behavior at SCI

Muncy, it does not rise to the requisite level of severity or pervasiveness to support
this claim.

88 Id. at *18.
89 Id. at *18 (quoting Spain, 26 F.3d at 448-49).
90 Id. at *16.
91 Id.
92 See Doc. 30 (Plaintiff’s AMF), Ex. A (Cuff Deposition) ¶¶ 66:3-13.
93 Bogoly, 2001 U.S. Dist. LEXIS 24160, at *17 (quoting Spain, 26 F.3d at 448-49).
c. Effect On A Reasonable Person
Finally, Plaintiff is also unable to adequately establish the fourth element of
this claim. “This is a critical prong which protects the employer from the

‘hypersensitive’ employee as it asks whether the discrimination would detrimentally
affect a reasonable person of the same sex in Plaintiff’s position.”94 To satisfy this
element, the comments must “go beyond the trivial criticisms and petty insults that

one might reasonably expect in a workplace.”95 In a case involving the DOC, another
court in this Circuit concluded that subjecting the plaintiff “to a litany of lewd
innuendos, pornographic comments, and offensive questions” satisfied this prong.96
Here, “[n]othing in the record suggests that the sort of banal, everyday annoyances

that constitute the bulk of plaintiff’s grievances were so extreme that a reasonable
person would have suffered a detrimental effect significant enough to amount to a
change in the terms and conditions of [their] employment.”97

The Court is sympathetic to the Plaintiff and the unpleasant work environment
she experienced at SCI Muncy, but that alone cannot save her sex discrimination

94 McCauley v. White, Civ. A. No. 01-4071, 2002 U.S. Dist. LEXIS 13036, at *14 (E.D. Pa. May
21, 2002).
95 Ivins v. Pa. Dep’t of Corr.-State Corr. Inst. at Graterford, Civ. A. No. 17-577, 2019 U.S. Dist.
LEXIS 25233, at *26 (E.D. Pa. Feb. 15, 2019).
96 Id. These offensive questions and comments included instances where male coworkers
propositioned the plaintiff, asked her if she was pregnant with another corrections officer’s
child, and inquired about details regarding Plaintiff’s consensual sexual relationship with
another corrections officer. Id. at *4-5.
97 McCartney v. Pa. State Police, 1:09-cv-01817, 2011 U.S. Dist. LEXIS 83409, at *86 (M.D.
Pa. Mar. 3, 2011).
claims. There is no genuine issue of material fact that would enable Plaintiff to
survive summary judgment on this issue. As a result, there is no need for the Court
to reach Defendants’ affirmative defense.

3. Retaliation Claim
To establish a retaliation claim, a plaintiff must show: “(1) [that she engaged
in] protected employee activity; (2) adverse action [was taken] by the employer

either after or contemporaneous with the employee’s protected activity; and (3) a
causal connection between the employee’s protected activity and the employer’s
adverse action.”98 After the plaintiff “makes these showings, the burden of
production of evidence shifts to the employer to present a legitimate, non-retaliatory

reason for having taken the adverse action.”99 “If the employer advances such a
reason, the burden shifts back to the plaintiff to demonstrate that ‘the employer’s
proffered explanation was false, and that retaliation was the real reason for the

adverse employment action.’”100
Plaintiff can clearly establish that she engaged in a protected activity by
reporting sexual harassment to DOC’s EEO Office.101 If some adverse action can be
demonstrated, causality is inferable due to the “temporal proximity” between the

98 Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015) (quoting Marra v. Phila. Hous.
Auth., 419 F.3d 286, 300 (3d Cir. 2007)).
99 Id.
100 Id.
101 See e.g., Daniels, 776 F.3d at 193 (quoting Curay-Cramer v. Ursuline Acad. of Wilmington,
Del., Inc., 450 F.3d 130, 135 (3d Cir. 2006)).
protected activity and the alleged adverse action.102 Therefore, the outcome of this
motion turns on whether DOC tricked Cuff into resigning. Improper inducement to
resign would satisfy this prong, but a “voluntary resignation is not an adverse

employment action[,]” even when based on an innocent misunderstanding.103
As “a general proposition, ‘conclusory, self-serving affidavits are insufficient
to withstand a motion for summary judgment.’”104 “This rule has been extended to

self-serving deposition testimony.”105 As a result, the Court is “not ‘required to
accept unsupported, self-serving testimony as evidence sufficient to create a jury
question.’”106 The basis of Plaintiff’s contention is her own, self-serving testimony
and a portion of Stacy Water’s testimony that does not support Cuff’s position.107

However, that does not mean Cuff’s testimony will automatically be disregarded;
instead, this testimony must be “juxtaposed with the other evidence” in the record to

102 LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (citing Clark Cnty. Sch. Dist.
v. Breeden, 532 U.S. 268, 273-74 (2001)).
103 LaRochelle v. Wilmac Corp., 769 F. App’x 57, 61 (3d Cir. 2019) (citing Honor v. Booz-Allen
& Hamilton, Inc., 383 F.3d 180, 186 (4th Cir. 2004)).
104 Johnson v. MetLife Bank, 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)).
105 Id. (citing Irving v. Chester Water Auth., 439 F. App’x 125, 127 (3d Cir. 2011)).
106 Hammonds v. Collins, 12-cv-00236, 2016 U.S. Dist. LEXIS 52960, *8 (M.D. Pa. Apr. 20,
2016) (quoting Brooks v. Am. Broad. Companies, Inc., 999 F.2d 167, 172 (6th Cir. 1993)).
107 A close examination of the deposition only indicates that Cuff communicated to Waters that
she felt she had been retaliated against. Although Waters notes that Cuff feared she would be
“miserable” while her hardship transfer was processed, there is no indication that this was due
to retaliation by the human resources staff at SCI Muncy. Because this testimony and any
reasonable inferences drawn from it does not support Plaintiff’s contention, only Cuff’s
assertions will be considered. See Doc. 30 (Plaintiff’s AMF), Ex. B (Waters Deposition) ¶¶
22:17-23:17.
determine if a “rational factfinder” could “credit Plaintiff’s testimony, despite its
self-serving nature.”108
“[J]uxtaposed with the other evidence[,]” no rational factfinder would “credit”

Cuff’s assertions. As noted above, Plaintiff failed to adequately contest the January
23, 2020 email exchange amongst several Office of Administration employees.109 In
that email thread, Wilson noted that Hull had “brought it to [his] attention that the

employee[, Cuff,] may have been misinformed on the process at the institutional
level and resigned while awaiting the hardship transfer.”110 Wilson proceeded to
explain that “[a]fter speaking with the employee and then [Hull], it was found that
was not the case” and instead, that “[s]he did not want to come back to work until

her transfer so the institution said she would have to resign if she didn’t want to
come back to work.”111
This exchange indicates that Plaintiff knowingly resigned because she did not

want to continue working at SCI Muncy while awaiting the hardship transfer.112
According to Plaintiff’s own account, only SCI Muncy employees had any reason
to retaliate against Cuff; no such motive was identified for the employees in the

108 Johnson, 883 F.2d at 549.
109 Plaintiff purported to deny this fact in its response to Defendants’ SMF. However, the response
does not adequately identify facts in the record to contest this fact. Instead, Cuff cites a series
of unrelated facts and her own, self-serving testimony. See Doc. 30 (Plaintiff’s AMF) at 5.
110 Doc. 27 (Defendants’ SMF), Ex. I (E-mail Correspondences on Hardship Transfer Request).
111 Id.
112 Id.
centralized Office of Administration.113 Even though it is possible to use leave to
cover absences leading up to a hardship transfer, nothing suggests that Plaintiff
inquired about such an option or presented a way to handle missing work.114 Instead,

this uncontested aspect of the record signals that Cuff’s lack of interest in working
at SCI Muncy led her to resign.115 After comparing Cuff’s self-serving testimony
with these aspects of the record, no rational factfinder could “credit” her unsupported

assertions.
Because this email exchange can similarly be viewed as self-serving for the
Defendants, drawing additional inferences from the record is useful. It is uncontested
that Roberta Boyles-Confair made standard resignation paperwork available to

Plaintiff and that she chose not to read or sign it on January 9, 2020.116 Cuff explains
that she did not trust SCI Muncy, but this self-serving statement contradicts the very
contention it is meant to support.117 The standard resignation paperwork would have

revealed the impact this action would have on her employment with DOC and
undermine any attempt to deceive Plaintiff.118

113 See Doc. 30 (Plaintiff’s AMF), Ex. A (Brandy Cuff Deposition) ¶¶ 159:1-166:24.
114 See Doc. 30 (Plaintiff’s AMF), Ex. E (Christopher Linn’s Deposition), ¶¶ 31:22-32:3.
115 See Doc. 27 (Defendants’ SMF), Ex. I (E-mail Correspondences on Hardship Transfer
Request).
116 See Doc. 30 (Plaintiff’s AMF), Ex. A (Cuff Deposition) ¶¶ 153:19-154:16, 165:8-166:14.
117 See id., Ex. A (Cuff Deposition) ¶¶ 153:19-154:16, 159:1-166:24.
118 See id., Ex. A (Cuff Deposition) ¶¶ 153:19-154:16, 155:1-156:19, 159:1-166:24. Plaintiff
specifically acknowledges that she would not sign anything that said she was resigning from
DOC. Although suggestive of the fact that Cuff misunderstood how her employment
functioned, this does not transform her resignation into a form of retaliation. It can be inferred
that the standard resignation paperwork would have included language indicating that she had
resigned from her employment with the DOC or the Commonwealth like the January 14, 2020
Cuff’s handwritten letter also makes no mention of transferring to another
DOC facility and instead says that she would be resigning effective immediately.119
Although Cuff again offered an explanation for this notable absence, that self-

serving statement is undone by her lack of response to the January 14, 2020
separation letter.120 The separation letter specifically stated that Cuff had resigned
from her employment with the Commonwealth; yet, Plaintiff did not respond to the

letter to try to keep her job with DOC or assert that she was being retaliated
against.121 Failing to respond to a clear, early indication that her resignation impacted
her employment with the DOC renders her self-serving allegation further incapable
of belief.

Finally, the internal disarray at DOC caused by Cuff’s resignation does not
support a genuine issue of material fact. The ongoing uncertainty at DOC arose due
to Cuff’s filing of a hardship transfer, shortly thereafter submitting her resignation

letter, and repeatedly inquiring into the status of the hardship transfer for months
after her resignation.122 Although suggestive to this Court of bureaucratic
dysfunction, this confusion does not support Cuff’s testimony that she had been

tricked into resigning as a form of retaliation. Instead, indications as early as January

separation letter. This inference is supported by the advice she received from a union
representative at another DOC institution. See id., Ex. A (Cuff Deposition) ¶¶ 155:1-156:19.
119 See Doc. 30 (Plaintiff’s AMF), Ex. Q (Notarized Document).
120 See Doc. 30 (Plaintiff’s AMF), Ex. A (Cuff Deposition) ¶¶ 160:1-21; Doc. 27 (Defendant’s
SMF), Ex. G (January 14, 2020 Separation Letter).
121 See Doc. 27 (Defendant’s SMF), Ex. G (January 14, 2020 Separation Letter).
122 See Doc. 30 (Plaintiff’s AMF) ¶¶ 36-44.
23, 2020 demonstrate that the Office of Administration had ruled out any possibility
of retaliation after a conversation with Cuff.123
Plaintiff cannot meet her burden “solely on the basis of a self-serving

[deposition] and a Counter Statement of Facts citing to [her] self-serving
[deposition], both of which consist of conclusory and speculative allegations.”124
“Here, in light of [all] the evidence that contradicts [and undermines] Plaintiff’s self-

serving testimony regarding” her resignation, “no rational factfinder would credit
that testimony.”125 Therefore, the Court will also grant Defendants’ motion as it
pertains to Cuff’s retaliation claims under Title VII and the PHRA.
V. CONCLUSION

For the reasons discussed above, Defendants motion for summary judgment
is granted. Although Plaintiff has demonstrated that an unprofessional and
oftentimes unpleasant work environment existed at SCI Muncy, these allegations are

unable to support her Title VII and PHRA claims.
An appropriate Order follows.
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

123 See Doc. 27 (Defendants’ SMF), Ex. I (E-mail Correspondences on Hardship Transfer
Request).
124 Arnold v. Autozone, Inc., Civ. A. No. 13-1329, 2016 U.S. Dist. LEXIS 25759, at *40 (E.D. Pa.
Mar. 2, 2016).
125 Dykes v. Marco Grp., Inc., 222 F. Supp. 3d 418, 426 n.4 (E.D. Pa. 2016).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10413953. Public record. Not legal advice.