The opinion
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RACHAEL DEMEIO, )
)
Plaintiff, )
)
v. ) 2:18cv260
) Electronic Filing
PPG INDUSTRIES, INC., )
Defendant. )
MEMORANDUM ORDER
AND NOW, this 9th day of March, 2020, upon due consideration of 1) defendant PPG
Industries, Inc.'s motion for summary judgment and the parties' submissions in conjunction
therewith and 2) the Report and Recommendation of Magistrate Judge Maureen P. Kelly
addressing the same and the parties' submissions in conjunction therewith, and after de novo
review of the record, IT IS ORDERED that [55] defendant's motion for summary judgment be,
and the same hereby is, denied. The [70] Report and Recommendation of the Magistrate Judge
as augmented therein is adopted as the opinion of the court.
Defendant's objections are without merit. First, as aptly explained by Judge Kelly, there
is more than ample evidence to establish that defendant's actions led plaintiff to have a
reasonable belief that an arrangement would be worked out that would permit her to remain as an
employee. Whether analyzed from plaintiff's level of understanding or the impact of defendant's
actions with regard thereto, plaintiff's filing with the EEOC cannot be found to be untimely as a
matter of law. Consequently, defendant cannot be granted summary judgment on the ground of
untimeliness.
Second, defendant's contention that the Magistrate Judge improperly applied and
expanded the existing authority on "sex plus" gender discrimination claims is unavailing. Judge
opinion supply more than a sound basis for the Magistrate Judge's analysis of plaintiff's gender-
plus claim. As Judge Ambro recently opined for the panel in Xu Feng v. University of
Delaware, 785 F. App'x 53 (3d Cir. 2019):
The Second Circuit has expounded at length on the reasons why comparator evidence is
not indispensable, namely that "the ultimate issue is the reasons for the individual
plaintiff’s treatment, not the relative treatment of different groups." Brown v. Henderson,
257 F.3d 246, 252 (2d Cir. 2001) (emphasis in original). Thus, in the employment
discrimination context "discrimination against one employee cannot be cured, or
disproven, solely by favorable, or equitable, treatment of other employees of the same race
or sex . . . . And, whether an employee discriminates against only a subset of a protected
class, or discriminates inconsistently, Title VII nevertheless protects any individual so long
as that individual is mistreated because of her sex." Id. at 252–53 (citation omitted). And,
conversely, there is no requirement that a plaintiff in, for example, a sex discrimination
case show that the defendant has "treated similarly situated men differently." Back v.
Hastings on Hudson Union Free School Dist., 365 F.3d 107, 121 (2d Cir. 2004).
Xu Feng, 785 F. App'x at 57; accord Weightman v. Bank of New York Mellon Corp., 772 F.
Supp.2d 693, 701-2 (W.D. Pa. 2011) (Lancaster, J.) (following the Supreme Court's teachings in
Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971), that employees may advance a
gender discrimination claim even if all members of the gender are not subjected to the
discriminatory practice or treatment and recognizing that although a sex-plus case remains at
base a form of gender discrimination, "an employer who treats women with small children
differently than women without small children would be liable for sex-plus discrimination; with
the 'plus' being stereotypical assumptions regarding women's childcare responsibilities.").
Against this backdrop, defendant's protestations to the contrary are wide of the mark.
Defendant has generated an array of evidence from which it might convince the trier of fact that
its conduct did not reflect stereotyping that a woman with young children would not be able to
meet the requirements of a demanding position while remote commuting from home because of
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more than an unbiased, gender-neutral comment and subsequent benign office management. But
such determinations are not ones based on the sufficiency of the evidence and therefore must be
resolved by a jury.
Similarly, the notion that Purdy's statement was somehow a "non-gendered stray remark
that was irrelevant to plaintiff's gender" is belied by the same authority and the additional cases
discussed in the Magistrate Judge's Report and Recommendation. A jury may well be convinced
that the remark and the conduct attributable to defendant that followed only was predicated on
the innocuous belief that it would be difficult for any individual, regardless of gender, to fulfill
the job duties required of plaintiff's former position as modified through a combination of remote
and in office presence. But 1) plaintiff's ability to perform her unmodified position after the birth
of her first child and 2) the manner in and location from which the person who had the
hydrocarbon PFP responsibilities previously performed that component of the newly modified
position supply a firm basis for the trier of fact to conclude otherwise.
Finally, defendant's contention that there is insufficient evidence of a causal connection
to support a retaliatory treatment claim is undermined sufficiently by the evidence highlighted in
the Report and Recommendation. The finder of fact may well believe that there was a change
between Purdy's original intentions for plaintiff's future career development and the treatment
that followed once it became known plaintiff had filed a complaint with the EEOC; the
admissions that plaintiff's supervisors were angered and frustrated upon learning of the filing;
and the lackluster efforts by defendant's management to open a pathway for plaintiff's successful
return to fulltime employment that would have been comparable to her prior prospects or
otherwise desirable for an individual given the circumstances. This body of evidence provides
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action and a causal connection between that action and the protected activity.
While a jury may well view the evidence and the scenes of the entire play derived
therefrom in the manner advocated by defendant, it is not this court's prerogative to do so at this
juncture. Accordingly, we decline defendant's invitation to confine the precedent and segment
and analyze the pieces of evidence in order to reach the conclusion that a violation of the law
could not have occurred here. In short, material issues of fact abound and defendant's motion for
summary judgment properly has been denied.
s/David Stewart Cercone
David Stewart Cercone
Senior United States District Judge
cc: Bruce C. Fox, Esquire
Andrew J. Horowitz, Esquire
Qiwei Chen, Esquire
Jill M. Weimer, Esquire
Sarah J. Miley, Esquire
(Via CM/ECF Electronic Mail)
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