LOCKHART v. CDM RESOURCE MANAGEMENT LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RYAN WILLIAM LOCKHART, )

)

Plaintiff, )

)

v. ) 2:20cv258

) Electronic Filing

ENERGY TRANSFER PARTNERS, LP, )

)

Defendant. )

OPINION

Ryan William Lockhart (“plaintiff”) commenced this employment discrimination action

against Energy Transfer Partners, LP (“defendant”). Presently before the court is defendant’s

motion for summary judgment. For the reasons set forth below, the motion will be denied.

Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary

judgment if 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.” Fed. R. Civ. P. 56(A). Rule 56 “‘mandates

the entry of summary judgment, after adequate time for discovery and upon motion, against a

party who fails to make a showing sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden of proof at trial.’” Marten v.

Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322–

23 (1986)). Deciding a summary judgment motion requires the court to view the facts, draw all

reasonable inferences and resolve all doubts in favor of the nonmoving party. Doe v. Cnty. of

Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001).

The moving party bears the initial burden of identifying evidence which demonstrates the

absence of a genuine issue of material fact. When the movant does not bear the burden of proof

on the claim, the movant’s initial burden may be met by demonstrating the lack of record

evidence to support the opponent’s claim. Nat'l State Bank v. Fed. Reserve Bank of New York,

979 F.2d 1579, 1581-82 (3d Cir. 1992). Once that burden has been met, the non-moving party

must set forth “specific facts showing that there is a genuine issue for trial,” or the factual record

will be taken as presented by the moving party and judgment will be entered as a matter of law.

Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting

FED. R. CIV. P. 56(E)) (emphasis in Matsushita). An issue is genuine only if the evidence is such

that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

In meeting its burden of proof, the “opponent must do more than simply show that there

is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. The non-

moving party “must present affirmative evidence in order to defeat a properly supported motion”

... “and cannot simply reassert factually unsupported allegations.” Williams v. Borough of West

Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent “merely rely upon conclusory

allegations in [its] pleadings or in memoranda and briefs.” Harter v. GAF Corp., 967 F.2d 846,

852 (3d Cir. 1992); Sec. & Exch. Comm'n v. Bonastia, 614 F.2d 908, 914 (3d Cir. 1980)

(“[L]egal conclusions, unsupported by documentation of specific facts, are insufficient to create

issues of material fact that would preclude summary judgment.”). Likewise, mere conjecture or

speculation by the party resisting summary judgment will not provide a basis upon which to deny

the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the

non-moving party's evidence is merely colorable or lacks sufficient probative force summary

judgment may be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v.

BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993)

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(although the court is not permitted to weigh facts or competing inferences, it is no longer

required to “turn a blind eye” to the weight of the evidence).

The record as read in the light most favorable to plaintiff establishes the background set

forth below. Prior to October of 2016 plaintiff was living and working in North Carolina. He

was contacted by Alan Roden who was then a supervisor at defendant’s facility in Export,

Pennsylvania, and made aware of a job opening at the facility. Plaintiff and Roden had served in

the Marines together in Iraq as part of Operation Desert Storm and were in the same platoon.

Plaintiff suffered post traumatic stress disorder after his tour of duty and had struggled with

substance abuse.

Plaintiff perceived the potential for employment in Pennsylvania as a new opportunity to

change his life, get a new start in a new place, and to put his past behind him. He applied for the

position and was hired by a subsidiary of defendant as a warehouseman. He moved to Export,

Pennsylvania, to start the new job in October of 2016. Roden left his employment with

defendant shortly before plaintiff started his new position.

Plaintiff reported directly to Anthony Smith, who was the supervisor in charge of the

Export facility. Smith promoted plaintiff to a purchasing coordinator in April of 2017. In

August of 2017, Smith disciplined plaintiff for repeated failures to process purchase orders

properly.

As part of his efforts toward starting a new segment of his life, plaintiff underwent a

phase of personal transition where he explored various religions before permanently converting

to Judaism. Since he started working with ETO, plaintiff adheres primarily to Judaism.

Smith received emails in November of 2017 raising complaints about plaintiff's conduct

in the workplace. Two of plaintiff's co-workers complained that plaintiff had moved a desk from

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his office into another office so that a new employee would have a workplace outside plaintiff's

office. Co-worker Christopher Cerro complained that plaintiff seemed to have a superiority

complex, often isolated himself, and was short tempered and disrespectful.

Co-worker Stephen Guaden likewise complained to Smith that plaintiff often ignored him

and was rude at times. Guaden felt that plaintiff wasn't a team player and lacked a level of

professionalism at times.

Cerro forwarded his email to another co-worker, Karen Saville, when he sent it to Smith.

Saville also sent an email to Smith complaining that plaintiff had moved a desk as part of an

office rearrangement to make room for a new employee. She further indicated that plaintiff was

complaining and isolating after office lighting was restored, but then also often invaded other co-

worker's space, making it difficult to work with him.

Saville's complaint came three days after she received Cerro's email to Smith. Smith

replied to Cerro's email by saying "Thank You!!" and to Saville's by replying "Thank you."

Smith did not forward the emails to headquarters.

Smith raised only the desk incident with plaintiff. Plaintiff had received direction from a

safety representative who instructed plaintiff to move the desk. This was done because the new

safety employee would need his own office and the safety representative intended to set up

another office to accommodate the needs of the new employee.

Defendant had an anti-harassment policy that was summarized in its employee handbook.

Plaintiff received a copy of the 2016 version of the handbook at the time of his hire and

acknowledged receiving a copy at that time. He did not familiarize himself with its contents.

Plaintiff was not aware of defendant's anti-harassment, anti-retaliation and reporting polices

regarding workplace incidents for at least thirteen months of his employment.

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On December 5, 2016, company officials highlighted that plaintiff had not completed a

number of required "new employee" training sessions. These included cybersecurity, social

media use, market manipulation and workplace harassment. Smith was made aware of the

situation. Plaintiff first completed market manipulation training in December of 2016 and then

completed a number of the other trainings in April and May of 2017. Nevertheless, plaintiff was

not required to undergo workplace anti-harassment training and did not do so until over a year

later.

On December 7, 2017, plaintiff completed defendant's 2017 workplace harassment

training. The training enlightened plaintiff about the nature of the policy and the alternative

avenues for reporting workplace harassment.

Directly following the training plaintiff filed an internal complaint of harassment against

Smith in defendant's EthicsPoint System. In his complaint, plaintiff reported that Smith had

"repeatedly" subjected him to “inappropriate physical contact and bodily intimidation as well as

psychological/verbal intimidation”; repeatedly slapped him on the buttocks after being told to

stop; blocked plaintiff's path while working and violated his personal space while plaintiff was

“trapped” at his desk; on one occasion pulled plaintiff’s hair out with pliers; persistently made

“derogatory remarks,” calling plaintiff names like faggot and making “obscene sexual gestures”

at plaintiff; “and intimidated [him] with comments pertaining to [his] religion.” Plaintiff

indicated that the cumulative effect of this campaign had terrified him because he couldn't think

when Smith was around and he was afraid of what Smith might do next.

Plaintiff further indicated that the incidents had all happened at the Export warehouse and

mostly in plaintiff's office. The conduct had been ongoing for "over a year" and recent examples

of what he perceived to be inappropriate treatment included Smith commenting about plaintiff's

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body and how he would "fit in company shirts” and slapping his buttocks inappropriately as he

walked past. He also engaged in verbal intimidation and blocked him in a way that confined him

to his desk. Plaintiff relayed that "I don't want to involve others in the office[,] I just want this

abuse to stop."

Human Resources director Naomi Manno investigated plaintiff's complaint. She traveled

from Texas to Export on December 12, 2017, and began interviewing office personnel on

December 13, 2017. She interviewed plaintiff, Smith, Cerro, Saville and Gauden as part of her

investigation.

During his interview with Manno, plaintiff reiterated much of his initial complaint. He

provided details and added that Smith often mocked him by singing the lyrics of "you're so fine,

you're so fine you blow my mind" and inserting plaintiff's name into the lyrics at the beginning.

Smith would invade his personal space when tutoring him about work and stick his finger in

plaintiff's ear. He would block plaintiff at his desk and slap him on the butt. Whenever plaintiff

confronted him about these behaviors, Smith would ask "who pissed in your pot" and then

become more angry as the day unfolded. Smith's level of verbal and physical intimidation would

likewise increase.

Plaintiff also provided additional information about having his hair pulled with pliers.

Around February or March of 2017, plaintiff and Smith were talking and the conversation verd

into religion. As the conversation unfolded Smith took the pliers, gripped plaintiff's hair on the

left side of his head and pulled until the hair let loose. Plaintiff told Smith God was going to

punish him.

Plaintiff then elaborated that Smith often argued with plaintiff about his conversion to

Judaism. In one conversation Smith quipped that "those Jews learned their lesson in the

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Holocaust." The statement struck fear in plaintiff, destroyed his trust in Smith and thereafter

whenever Smith brought up religion plaintiff tried to avoid the topic by trying to change the

subject.

Plaintiff explained that Smith frequently called him a faggot. After plaintiff started

taking swing dance classes in July, Smith found out about it. Smith questioned why plaintiff

would want to do that and started mocking plaintiff by dancing around and thrusting his pelvis

around while saying "look at me dancing."

Plaintiff indicated that he had asked Smith to stop on a number of occasions, but Smith

would just get angry or retort in a way that made plaintiff look as if he were the problem.

Plaintiff did not report the conduct earlier because he really needed the job and he was concerned

about losing it.

Manno interviewed Smith. Soon into the interview Smith stated that he assumed Manno

was there because of plaintiff. Smith described plaintiff as a problematic employee in that he

was unreliable and could not work with others. Smith said no one in the office or field wanted to

work with plaintiff. Plaintiff began to "ramp up" around the time he converted to Judaism

employee. He explained that plaintiff's interactions with his coworkers had been deteriorating

and often plaintiff just stared at his coworkers when they tried to converse with him. Smith

assumed this behavior came from plaintiff perceiving his coworkers as "unclean" and thus

unworthy of being fit for conversation. He also indicated plaintiff did not understand parts of his

job and therefore everyone had to spend extra time when dealing with plaintiff.

Smith claimed he was "softer and more accommodating with plaintiff. For example,

when Smith said "Hey, Good Morning Sunshine" to plaintiff a few days before, plaintiff just

requested Smith not speak to him in that way. Smith likewise denied ever singing in the office,

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but upon further questioning did concede that he had sung "Ryan, your so fine, you blow my

mind" in the past, but only in a way that signified it was approving of plaintiff figuring out

something important about the job – like the equivalent of saying "good job" or "you got it."

Smith then said plaintiff could recall all of these specific incidents, but could not remember

something he had just been taught the day before.

Smith indicated his response to learning plaintiff had taken up swing dance classes was

completely complimentary and the Smith thought plaintiff doing so was cool. He explained that

his wife liked to dance and she would love it if he learned to dance. He indicated that he went

"full blown ballerina" with his arms up in the air when he found out and that plaintiff and the

other office members just laughed when that happened. Smith admitted he had a bottle of scotch

whiskey in his office but adamantly denied having consumed any of it while at work.

Smith further disclosed and then commented on the multiple emails received from

plaintiff's coworkers in the later part of November. Smith disavowed any peculiarity about

receiving them within 3 days of each other. He described calling plaintiff to his home to discuss

them and telling plaintiff that his interactions with his coworkers had to improve or he would

have to formally report plaintiff to HR. Smith further explained that he had received similar

comments from plaintiff's coworkers in the past, but they had been verbal complaints, and he

would then talk to plaintiff. Plaintiff's attitude would improve for a short time, but then plaintiff

would revert back to ignoring people. He also would fail to retain training and repeatedly make

the same mistakes.

Smith also criticized plaintiff "for bringing God into everything." He then acknowledged

that as between himself and plaintiff there was a lot of discussion about religion in the

workplace. Smith engaged in such discussions to "understand" what plaintiff was saying about

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his religious beliefs and felt that plaintiff made people feel like their beliefs were not good

enough. In response, Smith "told [plaintiff] multiple times that I believe in Jesus Christ and

[plaintiff] is free to have his own beliefs." Smith did not report any of these discussions out of

respect for the long-standing relationship between Smith and plaintiff going back to their days

together in the Marines. Smith gave plaintiff multiple chances to change and "to do the right

thing." Plaintiff never did change and at that point Smith had come to believe he wasn't going to

change.

Smith further revealed that plaintiff had started backing away from him in recent times.

In this regard plaintiff would go into his office and move his chair away from Smith. Smith

indicated he though this behavior by plaintiff was "just weird."

Smith further admitted, after reflection, that he approached plaintiff with pliers in his

hand. The conversation between the two was focused on religion and Smith walked toward

plaintiff while clutching and clamping the pliers and said: "I will continue to believe in my Jesus

Christ." Smith denied actually pulling plaintiff's hair at the time. Smith said plaintiff reacted by

laughing.

Smith denied ever calling plaintiff a faggot. He admitted that he and plaintiff had

conversations about religion all the time. And in hindsight those conversations had become a

much bigger issue then he though or knew they were.

Smith recalled having a discussion about company shirts with plaintiff, but Smith only

recalled that the box appeared to contain only size large. Smith recalled telling plaintiff to look

through the box of shirts for a medium-sized shirt, and if there was one plaintiff could have it.

According to Smith, plaintiff just staired at him when he said this.

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Smith also recalled plaintiff requesting that Smith stop greeting him with "good morning

sunshine" and Smith reported that he honored plaintiff's request. Smith indicated that plaintiff

just ignored him for the most part and stared back at Smith. Smith indicated plaintiff "ignores

most people though."

At the end of the interview Smith expressed concern about the ramifications it would

have on him, asking in effect what this meant for him now. When asked to elaborate about his

concerns, Smith told Manno:

I see now that the issues I thought I had with Ryan [are] much bigger than I thought or

knew they were. I wish I would have brought HR in sooner. I Just figured I could work

this out myself with Ryan. We have history together – we were roommates in the marines.

I thought I knew the guy. I guess not. When I realized how drastically his interactions

were changing with the team, I should have told people, my boss, HR, but I really thought

he would change and do the work. I never thought we'd be here now.

Manno also interviewed Saville, Cerro and Guaden. In general, these employees

described a good working environment with the exception of interactions with plaintiff. They

indicated plaintiff was not a team player and often failed to answer questions or generally

ignored them in the office. Saville indicated she had "a great relationship" with the members of

her team, with the exception of plaintiff who had made the office stressful. She referred to the

others as "her guys" and indicated she was "happy to take care of them." Plaintiff, on the other

hand, purportedly had "issues with authority" and invaded her personal space by standing over

her while she was at her computer. She didn't feel safe around him. She described office

skirmishes with him involving the situating of a desk for the new "safety guy," interaction

concerning a "broken" keyboard on her desk, the replacement of a light bulb in the office and an

effort to provide a vendor with customer support. Each incident had stood out in Saville's mind

as creating an awkward situation and involving weird/odd behavior by plaintiff.

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Cerno likewise indicated that plaintiff was a loner of sorts and had a way of making

people in the workplace feel ignored. He often didn't engage in team functions and did not

answer questions by co-workers. He recalled plaintiff making a comment that he was in a

different place spiritually and if Cerno did not have the same beliefs, then plaintiff doesn't have

to respect him in the same way. Cerno explained that he was in disbelief that plaintiff made such

a statement. Somehow Cerno was able to discuss this conversation with Smith, who told

plaintiff that although he was entitled to his beliefs, he still had to talk to his co-workers.

Cerno repeatedly asserted that everyone in the Export office got along with each other,

with the exception of plaintiff, whom nobody had a good relationship. There were days when

there would not be any interaction with plaintiff and it made everyone in the office feel

uncomfortable.

Cerno praised Smith as a good office supervisor. He denied witnessing the various forms

of harassing or intimidating behavior identified by plaintiff. He did highlight an incident where

plaintiff had slapped Guaden on the shoulder as part of a greeting exchange, and it appeared to

be a pretty forceful slap. Cerno also identified plaintiff's unwillingness to share an office with

the new safety person and moving the desk out of his office as another situation that made

everyone feel awkward. He also referenced the incident where plaintiff sat in his office with the

lights turned off and Saville had to ask him to keep them on so she could get her work done.

On December 18, 2017, plaintiff reached out to Manno to report a disturbing incident.

Plaintiff said everything had been fine around the office after the interviews and Smith seemed to

be less intrusive with regard to his personal space. Nevertheless, Smith had grown increasingly

critical of plaintiff's work, taking the opportunity to knit pick his work and point out any little

mistake or deviation. On the day before, Smith came into question plaintiff about the process of

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closing out purchase orders and grew increasingly hostile and intimidating as the discussion

continued. Smith was very short and continued to interrupt plaintiff. Smith then stood up, took

his jacket off, puffed out his chest and appeared to be posturing for a fight. Plaintiff told Smith

he was not afraid of him. Smith reached below his desk as if he were reaching for a gun and

said: "you need to be afraid of me; I'm evil [a]nd you need to be afraid of evil." Plaintiff sensed

a "murderous intent" coming out of Smith.

Manno asked if there had been any witnesses. Plaintiff said possibly Saville, but she was

in her office. Manno simply thanked plaintiff for relaying the report.

Smith contacted Manno on December 19, 2017. He stated that after the interviews

plaintiff had been completely insubordinate to him. He then described the interaction between

the two of them on December 17, 2017. He had grown frustrated during the exchange because

plaintiff simply acted like he did not know why Smith was being critical of his work even though

plaintiff had been trained on the process several times. Smith did acknowledge that plaintiff had

been interacting better with the other office workers after the interviews and Manno encouraged

Smith to praise plaintiff for that improvement.

Plaintiff is prepared to testify to additional details of the work environment that were not

memorialized in Manno's written reports from the interviews. After plaintiff initially became

employed with defendant, Smith invited him over for dinner several times. During these get

togethers plaintiff confided in Smith about his recent past and why he had moved to

Pennsylvania. Plaintiff told Smith about his prior opiate addition (plaintiff's) and the severe

addition that plagued his former wife. Her addiction continued after plaintiff tried to get sober

and became an impediment to plaintiff's rehabilitation and their marriage. Plaintiff eventually

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divorced his wife and decided to leave the area. He was anxious for a fresh start and a break

from the past.

Plaintiff also confided in Smith about his search for a more meaningful life spiritually.

This had led to his conversion to Judaism.

Smith reacted by disapproving of plaintiff's religious beliefs and began to proselytize

about the superiority and dominance of Christianity. He made plaintiff feel as if his beliefs were

inferior and inadequate and used religion to make plaintiff feel deeply guilty about divorcing his

wife.

Smith's proselytizing in the workplace was ongoing. Plaintiff resisted and tried to stand

up for his religious beliefs. Plaintiff would reiterate his belief that there was only "God" and the

oneness of God. Smith would become increasingly hostile and try to assert dominance over

plaintiff when and after these discussions occurred. Smith would make comments such as "the

Jews learned their lesson during the Holocaust" and say things like "I'm going to put you in a box

and ship you to Israel." He made other statements as well, such as "why don't you quit and go

over to their side." On one occasion Smith mimicked a Nazi "goose step" march past plaintiff's

office door.

Smith also used anti-Muslim rhetoric in the workplace in front of plaintiff and other co-

workers. He would mock Muslims and call them ragheads. He would shout "Allah akbar" while

sitting at his desk. He expressed the view that Muslims should be eliminated.

Smith also told plaintiff crazy stuff, like Smith's wife was in the KKK and his brother

was a Nazi. He repeated these claims and eventually plaintiff began to believe the statements.

He had no reason to disbelieve them.

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Smith frequently ridiculed and mocked plaintiff about his behaviors that were not inline

with the typical blue-collar male stereotype. He would greet plaintiff by saying "good morning

sunshine" and sing to plaintiff in a mocking and demeaning way every morning for months. He

would frequently call plaintiff a "faggot" and mimicked a pelvic thrust motion. He would

comment to others while in plaintiff's presence that "people will want to cover their buttholes"

when plaintiff came around. As a heterosexual individual, plaintiff was particularly offended

and disturbed by this behavior and characterization.

Smith often mocked and belittled plaintiff in front of his co-workers. At times, Cerro,

Gauden and Rishel joined Smith in jeering and making fun of plaintiff. Cerro joined in berating

plaintiff to a degree that he was in effect an enforcer of Smith's treatment of plaintiff.

Smith had training in counterterrorism as part of his military training. Smith used tactics

from this training to create a position of dominance over plaintiff. He would make a point of

trying to be ever present in the unfolding of plaintiff's work and personal like. He would

frequently "pop up" as plaintiff would come around a corner in the workplace and startle or scare

plaintiff. He sought to create the impression that he was able to constantly watch plaintiff and

keep track of his every action. He would make sure plaintiff knew that he was aware of the

recent events and conversations on plaintiff's cellular telephone.

Smith followed and stalked plaintiff. At one point Smith even tailed plaintiff to and from

a religious event. He invited himself to a Jewish service at the synagogue and then belittled and

made fun of what he had observed there.

Smith frequently made statements to plaintiff that suggested Smith was a

"Megalomaniac" and had grandiose powers. He would say he was God, write down "Elohim"

and tell plaintiff he wanted plaintiff to fail at his job. When he would jump out and startle

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plaintiff in the workplace, he would state to plaintiff that he was "Lucifer." He repeatedly told

plaintiff that he was "CIA" and he said this so many times that plaintiff began to believe it.

Smith bragged to plaintiff about his ability to control other workers' advancement within

defendant's operations. Smith claimed he was able to block the promotion of John Adams

repeatedly and bragged to plaintiff about doing so all the time. He also bragged about holding

Matt Rush back from advancing at the company. Smith thought this was amusing. Adams

eventual ended his employment with defendant, and Smith's unorthodox treatment of plaintiff

ratcheted up even further.

Smith convinced plaintiff that he had inside control over whatever the company did at the

Export location. He indicated he was tight with and could control all the individuals in the chain

of command. Plaintiff tried to transfer out of Export or to the safety department and beyond

Smith's control, but he was unable to get away from Smith.

Plaintiff electronically verified that he had received a copy of defendant's employee

handbook when he started his employment. Plaintiff did not read or review the handbook at that

time. Defendant did not emphasize or require plaintiff to complete its anti-discrimination and

anti-harassment training for over a year.

During the year that plaintiff worked without the benefit of training on defendant's

workplace policies, plaintiff had the belief that any complaint about Smith's behavior and/or his

treatment of plaintiff would simply end up being brought to Smith's attention. Thus, plaintiff

believed there was really no one to complain to or confide in about Smith's ongoing harassment

and telling anyone about Smith's behavior would just end up making Smith angry and things

would become worse for plaintiff.

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After months of having to endure Smith's mocking and belittling, plaintiff tried to

separate himself from Smith as much as possible. He situated his desk so that Smith could not

hover over him. He entered the office in a way that made it difficult for Smith to butt-slap

plaintiff or touch him in queer ways. He tried to change his name to "Will" in the hopes of

keeping Smith from engaging in the berating singing of plaintiff's name in the daily lyrics he

used. He tried to refrain from expressing emotion or reacting to anything going on in the office.

Plaintiff adopted these sheltering tactics in the fall of 2017. These tactics seemed to be

working for a few months. Plaintiff then watched the training on workplace discrimination and

harassment on December 7, 2017, and immediately realized that he had been a victim of such

behavior. He used defendant's Ethicspoint reporting system to lodge an "anonymous" complaint

about Smith's behavior. Manno immediately came to Export and interviewed Smith. Smith

thereafter scrutinized every aspect of plaintiff's work and began assigning belittling and

degrading work to plaintiff. He searched for ways to make plaintiff's work more difficult and

confusing. He often interacted with plaintiff in non-verbal ways which clearly were meant to

convey contempt, anger and disapproval.

Plaintiff formed the belief the Manno could not control Smith or change his behavior

towards plaintiff. Manno's interviewing had revealed that any complaint would be investigated

in a manner that made clear the origins of the complaint. Even though Manno said she was not

going to let things continue the way they were, Smith continued harassing plaintiff with a new

level of intensity. When plaintiff reported the incident involving the simulation of drawing a

gun, Manno merely thanked him for the information. She did not seem to believe plaintiff and

asked if there were any witnesses.

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After filing a complaint and reporting the subsequent threatening conduct by Smith,

plaintiff believed he could not trust Manno. He began to question whether she was working with

Smith to search for pretext to terminate him.

Plaintiff resigned from his position on December 29, 2017. He had already been in

contact with his previous employer before he resigned. He moved back to North Carolina in

January of 2018 and went back to work with his previous employer, Suddenlink.

On December 18, 2017, defendant prepared disciplinary action to be issued to Smith.

The discipline actually was issued on January 2, 2018. Defendant emphasized the need to

maintain professionalism in the workplace, exercising mindfulness in conversing and interacting

with employees, being respectful of employees' personal space, focusing on work-related matters

and avoiding any touching or physical contact. Further, any complaint about the work

environment was to be reported to management. Defendant advised Smith that "[i]f these

aspects of your performance do not improve or if your performance deteriorates in other areas,

the Company will take further disciplinary action up to and including the termination of your

employment."

Smith left his employment with defendant thereafter.

Defendant moves for summary judgment on several grounds. It contends that the

Faragher-Ellerth doctrine precludes further proceedings on plaintiff's hostile work environment

claims because defendant had an established workplace policy precluding discrimination,

harassment and retaliation when plaintiff was hired, plaintiff did not invoke the protections in the

policy for over a year, plaintiff's first complaint was investigated promptly and he resigned

before defendant could determine whether appropriate corrective actions were warranted.

Further, much of the conduct of which plaintiff now complains assertedly was not identified in

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his initial report to defendant and what was reported cannot satisfy the prima facia elements of a

hostile work environment claim because it was unrelated to religion or gender and did not rise to

the level of the persistent and regular conduct needed to sustain such claims in any event.

Plaintiff cannot establish a materially adverse employment action in order to proceed with his

discrimination claims because defendant responded to plaintiff's report promptly, did not take

any adverse employment action against him and plaintiff resigned before defendant took action

with regard to what its investigation was able to verify. And the conditions in the workplace fail

to rise to the level needed to support a constructive discharge. Finally, defendant maintains that

plaintiff's claims of retaliation purportedly are deficient because plaintiff did not suffer any

materially adverse employment action and there is no evidence to suggest defendant took action

against plaintiff because he filed a report pursuant to defendant's workplace policies.

Plaintiff maintains that the record contains adequate evidence to support the findings

needed to sustain his hostile work environment claims. In this regard, he assertedly was

subjected to a highly offensive work environment and discriminatory treatment because his

supervisor did not approve of his conversion to Judaism or his life-style choices that did not

conform with the "macho" male traits typically espoused by the blue-collar and ex-military

workers within the Export office. Further, defendant's lack of adequate training within the

Export office in general and its failure to insist that plaintiff complete the available training for

over a year preclude defendant's ability to avail itself of the Faragher-Ellerth defense. And while

defendant did send Manno to investigate plaintiff's initial complaint, it failed to take any

meaningful steps to control the environment or monitor Smith's behavior following plaintiff's

complaint. As a result, the environment grew increasingly hostile as the days passed and Smith's

treatment of plaintiff culminated in a threat of physical violence. Manno failed to provide any

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indication that something would be done to rein in Smith's escalating treatment of plaintiff;

instead, she implicitly questioned plaintiff's veracity, which in turn reasonably made him fear for

his safety. In addition, she did not take any action to protect plaintiff from further harassment or

retaliation. This state of affairs made resigning the only viable option and precludes defendant's

ability to rely on the Faragher-Ellerth defense. In other words, plaintiff argues there is sufficient

evidence to support his hostile environment, retaliation and constructive discharge claims and

defendant's contentions to the contrary are unavailing.

Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination “against

any individual with respect to [his or her] compensation, terms, conditions, or privileges of

employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000 e–2(a)(1). The

prohibition “not only covers ‘terms’ and ‘conditions' in the narrow contractual sense, but

‘evinces a congressional intent to strike at the entire spectrum of disparate treatment of

[protected employees] in employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.

75, 78 (1998) (quoting Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). “Title VII

is violated ‘when the workplace is permeated with discriminatory [gender-based] intimidation,

ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.’” Ocheltree v. Scollon Productions,

Inc., 335 F.3d 325, 331 (4th Cir. 2003) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 215

(1993)). Title VII is designed to protect against “working environments [that are] so heavily

polluted with discrimination as to destroy completely the emotional and psychological stability

of minority group workers.” Meritor, 477 U.S. at 66 (quoting Rodgers v. EEOC, 454 F.2d 234,

238 (5th Cir. 1971)).

19

A plaintiff alleging a hostile work environment must establish the following elements: (1)

the employee suffered intentional discrimination because of the protected trait (here religion

and/or gender); (2) the discrimination was severe or pervasive; (3) the discrimination

detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a

reasonable person of the same protected trait in that position; and (5) the existence of respondeat

superior liability. Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 276–77

(3d Cir. 2001). Proffering sufficient evidence to meet each element of a hostile work

environment claim generally precludes summary judgment in the defendant’s favor and permits

the plaintiff to proceed to trial. Id. at 280–281.

In general, the Supreme Court’s cases in the area have taken “a middle path between

making actionable conduct that is merely offensive and requiring the conduct to cause a tangible

psychological injury.” Harris, 510 U.S. at 21. Striking such a balance is necessary to maintain

the distinction between objectively hostile or abusive work environments that violate Title VII’s

broad rule of workplace equality and simple teasing, offhand comments and isolated incidents

that are beyond its reach. Id.; Clark County v. Breeden, 532 U.S. 268, 271 (2001). The Supreme

Court has emphasized that the standards for judging hostility must remain sufficiently

demanding so that Title VII does not become “a general civility code.” Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998). “The question of ‘whether an environment is sufficiently

hostile or abusive must be judged by looking at all 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.’” Moody v. Atlantic City Board of Educ., 870 F.3d 206, 214 (3d Cir. 2017)

(quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001)).

20

The workplace conduct underlying a harassment claim is not to be measured in isolation.

Instead, it is to be assessed “by looking at all the circumstances.” Clark County, 532 U.S. at 270.

In analyzing whether a plaintiff has established a prima facie case, the court cannot confine its

analysis to “the individual pieces of evidence alone,” but must “view the record as a whole

picture.” Abramson, 260 F.3d at 276 (citing Woodson v. Scott Paper Co., 109 F.3d 913, 921 (3d

Cir. 1997)). This is because “[a] play cannot be understood on the basis of some of its scenes but

only on its entire performance, and similarly, a discrimination analysis must concentrate not on

individual incidents, but the overall scenario.” Id. (quoting Andrews v. City of Philadelphia, 895

F.2d 1469, 1484 (3d Cir. 1990)).

Defendant contends that plaintiff has failed to produce any evidence to establish the first

element, i.e., that he suffered discriminatory treatment because of his religion and/or gender. It

asserts that when the incidents in the record are examined in context and considered in

conjunction with the remaining evidence, the record fails to reflect any evidence of

discriminatory treatment based on either of these protected traits. It highlights that plaintiff has

merely complained about 1) having his name inserted into a song, 2) having his hair pulled with

pliers, 3) having his buttocks smacked, 4) having a finger inserted into his ear, 5) being

questioned about swing dancing, 6) being spoken to in a frightening manner, 7) being "flipped

off" and witnessing the same treatment administered to others in the workplace, 8) witnessing the

office supervisor thrust his pelvis around the office, and 9) witnessing the office supervisor drink

from a bottle of liquor in his office. According to defendant, there is in sufficient evidence to

establish that this conduct was specifically directed at plaintiff let alone adequate evidence to

suggest that much of this conduct "was directed at [plaintiff]" because of his religion or gender.

21

Thus, it asserts that plaintiff’s evidence falls short of demonstrating the presence of religiously-

based and/or gender based animus. We disagree.

It is well-settled that a plaintiff need not produce direct evidence of an actor’s motivation

in order for conduct to be found to be discrimination. Abramson, 260 F.3d at 278. In this regard

it is improper to parse through the plaintiff’s evidence in search of a link between the harasser’s

conduct and a discriminatory animus in his or her mind. Id. at 277-78. Instead, “[t]he proper

inquiry at this stage [is ascertaining] whether a reasonable factfinder could view the evidence as

showing that [the plaintiff’s] treatment was attributable to [his religion or gender].” Id. at 277.

In this context a plaintiff is not “required . . . to demonstrate direct proof that her harasser’s

intent was to create a discriminatory environment.” Id. at 278. Instead, the intent to discriminate

can be inferred from the entire context in question and the conduct of the actors involved. Thus,

“[r]egardless of what a harasser’s intention is, if a plaintiff presents sufficient evidence to give

rise to an inference of discrimination by offering proof that her ‘work-place is permeated with

discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working environment,’ and the

conduct is based on one of the categories protected under Title VII, a hostile work environment

claim will survive summary judgment.” Id. at 278-79. In other words, “where . . . the evidence

tends to show that the harasser’s conduct was intentionally directed toward the plaintiff because

of [his religion and/or gender], the first prong of the prima facia case is met.” Id. at 279.

In applying the above standards, the court disagrees with defendant’s implicit contention

that plaintiff is required to demonstrate that each of the incidents forming the basis of plaintiff's

hostile work environment claim have a direct link to or create an inference of conduct motivated

by religious-based and/or gender-based discriminatory animus. That is not the test which this

22

court must apply. See Durham Life Ins. Co. v. Evans, 166 F.3d 139, 149 (3d Cir. 1999) (district

court appropriately refused to consider the defendant’s attempt to disaggregate the various acts

and endeavors forming the plaintiff’s hostile work environment claim and cast doubt on each

one, and properly evaluated the record as a whole). Instead, it must determine whether a

reasonable factfinder could view the evidence as showing plaintiff’s treatment was attributable to

his religion and/or gender. And the evidence need not establish a direct intent to discriminate,

but merely must be capable of proving that the conduct in question as a whole was directed

toward the plaintiff because of his religion and/or gender. In making this evidentiary assessment,

the court is not permitted to act as a factfinder and resolve the differing inferences that can be

drawn from the evidence. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 286 (3d Cir. 2000).

Instead, the evidence must be considered in the light most favorable to the non-movant, with all

reasonable inferences being drawn in that party’s favor. Id. When viewed as a whole, plaintiff

has proffered sufficient evidence to support the first prong of a hostile work environment claim.

Defendant takes a sterile and cryptic view of what the record will permit the finder of fact

to find, infer and conclude. The finder of fact may well find, infer and conclude that upon

moving to Pennsylvania, plaintiff confided in Smith about his past, the reasons he left North

Carolina and his recent search for spiritual fulfilment. Smith became critical of plaintiff's

decision to divorce his wife and used plaintiff's religious beliefs to make plaintiff feel guilty

about it. From that point forward, religious belief became a focal point of discussion between

the two, which in turn spilled into their working relationship and the workplace. Smith lectured

plaintiff about how offensive his divorce was to Smith's version of Christianity. He did this in

front of other workers in the Export office, who then began to engage in the same sort of

23

behavior. For example, Isaac Rishel told plaintiff in the workplace: "only Christians are going to

be saved, you need to convert, end of days is coming."

Smith regularly proselytized to plaintiff and read biblical passages. He often invaded

plaintiff's personal space or physically cornered plaintiff while doing so. On one occasion,

Smith was lecturing plaintiff. He then approached plaintiff with pliers in his hand and said: "as

for me, I will continue to believe in my Jesus Christ." He was clamping the pliers together as he

did so and then he reached out and pulled a strand of plaintiff's hair out with the pliers.

Smith made many anti-Semitic statements to plaintiff. These included: "Jews are the first

terrorists;" "the Jewish people learned their lesson during the Holocaust;" and "my wife's family

were Nazis." Smith mimicked a Nazi "goose step" march past plaintiff's open office door and he

threatened to put plaintiff in a box and ship him to Israel.

Smith continuously pressured plaintiff to take him to synagogue services. After plaintiff

failed to invite him, he tailed plaintiff and attended a service. When plaintiff was leaving the

service, Smith laughed at what he had observed and stated it was "feminine."

Smith was also critical and displayed distain for other religious beliefs as well. He often

expressed hatred for Muslins. He called them ragheads in a mocking and belittling way. He

would shout "Allah akbar" while sitting at his desk for no apparent reason other than to mock the

ritual. And he espoused the view that all Muslins should be eliminated.

Smith's references to the Nazis and the Holocaust could be found to have conveyed a

particularly repulsive and vile view of plaintiff's religious practices. Symbols of and references

to the Nazi regime carry a distinct connotation to individuals of the Jewish faith. They reference

a level of hatred and barbaric treatment that is unparalleled in world history. Cf. Lake v. AK

Steel Corp., 2:03cv517, 2006 WL 1158610, *26 (W.D. Pa. May 1, 2006) (Cercone, J.). The

24

Nazi regime was founded on "a belief of Arian superiority and the need to brutally oppress any

other race or ethnic group perceived as inferior." Id. For many, and particularly those of Jewish

faith, reference to the regime in an approving or glorified manner carries an unmistakable

inference of "oppression of those of Jewish heritage through genocide." Id.

And indeed, it is difficult to ascribe any meaning other than hatred and oppression to

Smith's statements that the Jews were the first terrorists and the Jewish people learned their

lesson in the Holocaust. And when coupled with Nazi rituals in the workplace such as goose

step marching and reminders of his familiar descendants being directly from the regime, the

finder of fat may well be convinced that much of the treatment was perpetrated by Smith to treat

plaintiff in a manner designed to deter him from continuing to practice and subscribe to the

tenants of Judaism.

Defendant's contention that Smith's treatment of plaintiff is insufficient to support a

finding that it was on account of sex equally is misplaced. The seminal case regarding Title VII

gender stereotyping claims is Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). There, through

a plurality opinion, the Court recognized that evidence of an employer’s gender stereotyping

could be used to prove that a female employee was refused a promotion “because of” her “sex.”

Id. at 250–51. The Court opined that "[a]s for the legal relevance of sex stereotyping, we are

beyond the day when an employer could evaluate employees by assuming or insisting that they

matched the stereotype associated with their group, for ‘in forbidding employers to discriminate

against individuals because of their sex, Congress intended to strike at the entire spectrum of

disparate treatment of men and women resulting from sex stereotypes.’” Id. at 251 (quoting Los

Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707, n. 13 (1978)). Thus, "an

25

employer who acts on the basis or a belief that a woman cannot be aggressive, or that she must

not be, has acted on the basis of gender.” Id. at 250.

Our Court of Appeals thereafter squarely has held that Title VII’s “because of sex”

language prohibits discrimination based upon an employer's subjectively held gender

stereotypes. Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 286–87 (3d Cir. 2009). This

assessment is grounded in the increasingly broad view the United States Supreme Court has

taken in construing Title VII’s “because of sex” language. See EEOC v. Scott Med. Health Ctr.,

217 F.Supp.3d 834, 839 (W.D. Pa. 2016) (citing Price Waterhouse, 490 U.S. at 250 (“In the

specific context of sex stereotyping, an employer who acts on the basis of a belief that a women

cannot be aggressive, or that she must not be, has acted on the basis of gender.”)); Newport

News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983) (“Male as well as

female employees are protected against discrimination.”); Meritor Savings Bank, FSB v. Vinson,

477 U.S. 57, 66 (1986) (“[P]laintiff may establish a violation of Title VII by proving that

discrimination based on sex has created a hostile or abusive work environment”); Oncale v.

Sundowner Offshore Services, Inc., 523 U.S. 75, 82 (1998) (“[W]e conclude that sex

discrimination consisting of same-sex sexual harassment is actionable under Title VII.”).

Other courts of appeals likewise have held that discriminatory treatment based on sexual

stereotyping violates Title VII. See e.g. Smith v. City of Salem, Ohio, 378 F.3d 566, 575 (6th

Cir. 2004) (“Sex stereotyping based on a person's gender non-conforming behavior is

impermissible discrimination, irrespective of the cause of that behavior; a label, such as

‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered

discrimination because of his or her gender non-conformity.”); Hively v. Ivy Tech Community

College of Indiana, 853 F.3d 339, 345-46 (7th Cir. 2017) (en banc) (treatment by an employer

26

based on gender stereotyping violates Title VII because the employee's protected characteristic

has played a role in the treatment). And the Supreme Court recently made unequivocally clear

that taking adverse employment action based on non-conforming traits or behaviors of an

employee's gender falls within the core behavior prohibited by Title VII. Bostock v. Clayton

County, Georgia, -- U.S. --, 140 S. Ct. 1731, 1741 (2020) ("This statute works to protect

individuals of both sexes from discrimination, and does so equally. So an employer who fires a

woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being

insufficiently masculine may treat men and women as groups more or less equally. But in both

cases the employer fires an individual in part because of sex. Instead of avoiding Title VII

exposure, this employer doubles it.").

Plaintiff has advanced sufficient evidence to establish that he suffered harassment based

on his non-conformity with Smith's perceived beliefs about the traits and mannerisms a male

should possess and display in the workplace. Smith and the other males in the office were stocky

and muscle bound. Plaintiff has a slender physique. The others hunted, fished and drank beer as

forms of relaxation. Plaintiff practiced yoga on a daily basis, took swing dance lessons and ate a

vegetarian diet.

Smith frequently greeted plaintiff by saying "good morning sunshine." He inserted

plaintiff's name in song lyrics and sang the lyrics in a belittling manner multiple times a day for

months. Smith went "totally full-blown ballerina" in an exaggerated dancing ritual when he

learned that plaintiff was taking lessons in swing dancing. Smith did not treat any of the other

males in the office in a similar manner.

Each of the above patterns of behavior can be found to have meant to carry a

disapproving connotation about plaintiff's non-conformity with Smith's version of the traits and

27

mannerisms that were expected of a male. The rituals with the song and greeting could be

understood to have conveyed a mocking disapproval of effeminate characteristics displayed by

plaintiff. The reaction to plaintiff taking lessons in swing dancing could be found to be

particularly mocking with the intent to convey disapproval of the behavior.

Of course, Smith advanced alternative motives for his behavior to Manno. He claimed

the song was done infrequently and only as a way of praising and rewarding plaintiff for

succeeding in a task or with problem-solving. But over time plaintiff became so distraught by

the treatment that he attempted to change his name just so Smith would stop singing to him in

that manner. Whether the behavior was praise or calculated harassment designed to ridicule

plaintiff for his lack of acting more like what was expected of a man in the Export office is a

question that must be left to the finder of fact.

Smith advanced a similar explanation for his full-blown ballerina response. Smith

suggested the response was designed to express his admiration for plaintiff learning to dance.

Plaintiff described it as an exaggerated response undertaken with the intent to mock and belittle

plaintiff in the office in front of his co-workers.

Context is of course quite important in a hostile work environment setting. As to all of

these rituals, the greetings, the singing and the dancing, the natural inference about why one

would engage in the behavior and what was intended to be conveyed to the observer is much

more in line with plaintiff's account. Viewing the rituals as praise and approval is not something

that would be a common reaction to the behavior as plaintiff has described it. In other words,

while defendant can seek to convince the finder of fact that the behavior did not occur and/or

Smith sought to convey other non-harassing sediments through these behaviors, the jury

28

certainly will have the prerogative to find that plaintiff's account is in accord with the

preponderance of the evidence.

Moreover, Smith engaged in other behaviors that appeared to mock plaintiff for failing to

display masculine traits. Plaintiff is heterosexual but Smith often ridiculed him for displaying

traits that were different from Smith's version of masculinity. Smith often slapped plaintiff on

the buttocks and would comment that "people will want to cover their buttholes when you come

around." He pranced past plaintiff's office door while mimicking a pelvic thrust motion. He did

this in the open office where others could observe the ritual. He repeatedly called plaintiff a

faggot. And he made derisive comments about how good plaintiff's slender build would fit in a

company T-shirt.

Again, defendant takes the position that these practices did not occur or, if they did, they

occurred in a context and under circumstances that make them innocuous or mere office slights

and vulgarities. Smith provided a different version of many of the behaviors and the jury might

be persuaded that Smith's account is the more accurate portrayal. But the finder of fact may well

credit plaintiff's account. Should it do so, it may likewise infer that these rituals and forms of

ridicule were directly aimed at plaintiff because of plaintiff's non-conforming effeminate traits,

characteristics and mannerisms. That is certainly the natural inference to be drawn from the butt

slapping, calling plaintiff a faggot and the pelvis-thrusting past plaintiff's office door. And

Smith's ongoing use of these behaviors would appear to smack of an intent to ridicule plaintiff

because of his sex.

The record contains sufficient evidence from which the finder of fact may well conclude

that Smith directed the rituals and behaviors and mocked plaintiff in order to express Smith's

disapproval of plaintiff's religious beliefs. It likewise contains the same to support a finding that

29

Smith mocked and harassed plaintiff because of his sex. Thus, defendant's attempt to avoid

liability as a matter of law on the first element of a hostile work environment claim is wide of the

mark.

Defendant's contention that plaintiff lacks sufficient evidence to support a finding that the

harassment was severe or pervasive equally is misplaced. In general, the Supreme Court’s cases

in this area have taken “a middle path between making actionable conduct that is merely

offensive and requiring the conduct to cause a tangible psychological injury.” Harris, 510 U.S.

at 21. Striking such a balance is necessary to maintain the distinction between objectively hostile

or abusive work environments that violate Title VII’s broad rule of workplace equality and

simple teasing, offhand comments and isolated incidents that are beyond its reach. Id.; Clark

County v. Breeden, 532 U.S. 268, 271 (2001).

The Supreme Court has emphasized that the standards for judging hostility must remain

sufficiently demanding so that Title VII does not become “a general civility code.” Faragher v.

City of Boca Raton, 524 U.S. 775, 788 (1998). It has reiterated that "sexual harassment is

actionable under Title VII only if it is so severe or pervasive as to alter the conditions of the

victim's employment and create an abusive working environment." Clark County, 121 S.Ct.

1509; Meritor, 477 U.S. at 67. Conduct which amounts to the "ordinary tribulations of the

workplace" such as sporadic use of abusive language, off-handed jokes and occasional taunting

and teasing is beyond the purview of Title VII. Faragher, 524 U.S. at 788. Conduct becomes

actionable only where it has become sufficiently "extreme to amount to a change in the terms

and conditions of employment." Faragher, 524 U.S. at 788.

All of the circumstances surrounding the asserted hostile conduct are to be examined in

determining whether a work environment is sufficiently severe or pervasive. See Harris, 510

30

U.S. at 23. The court should assess the objective severity of the harassment and can consider (1)

its frequency, (2) its severity, (3) whether it is physically threatening or humiliating (as opposed

to an offensive utterance), (4) whether it unreasonably interferes with the employee's work

performance and (5) the effect on the employee's psychological well-being. Id.; Moody v.

Atlantic City Board of Educ., 870 F.3d 206, 214 (3d Cir. 2017) (“The question of ‘whether an

environment is sufficiently hostile or abusive must be judged by looking at all 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.’”) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S.

268, 270-71 (2001)). It is the totality of the circumstances that is critical and no single factor is

required or dispositive. Faragher, 524 U.S. at 788. As the Court has opined:

[t]he real social impact of workplace behavior often depends on a constellation of

surrounding circumstances, expectations, and relationships which are not fully

captured by a simple recitation of the words used or the physical acts performed.

Common sense, and an appropriate sensitivity to social context, will enable courts

... to distinguish between simple teasing or roughhousing ... and conduct which a

reasonable person in the plaintiff's position would find severely hostile or abusive.

Oncale, 523 U.S. at 81-82; accord Abramson, 260 F.3d at 279-80 (pervasive requirement is

satisfied where the evidence on the environment as a whole "can be found to aggregate to create

an environment hostile to a person [sharing the plaintiff's protected trait].") (citing in support

Durham Life Ins. Co., 166 F.3d 155).

Moreover, the severity of the asserted conduct must be considered. Ordinarily, isolated

incidents of offensive conduct do not rise to level of actionable conduct. Castleberry v. STI

Group, 863 F.3d 259, 264 (3d Cir. 2017) (citing Jensen v. Potter, 435 F.3d 444, 449 (3d Cir.

2006)). Nevertheless, the Supreme Court's precedent makes clear that "the correct standard is

"severe or pervasive." Id. (emphasis in original). These are "alternative possibilities." Id. In

31

other words, "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.” Id. (quoting Jensen, 435 F.3d at 449 n. 3) Thus, isolated incidents or even a single

incident of discriminatory treatment can satisfy the "severe or pervasive" requirement where the

conduct is sufficient to amount to a change in the terms and conditions of employment. Id.

When considered under the above standards, plaintiff's evidence falls well above the

threshold needed to proceed to trial. Plaintiff is prepared to testify that Smith taunted and

mocked him almost daily. Probing and ridiculing about plaintiff about his practice of Judaism

became a frequent topic. Smith used the tenants of Christianity to make plaintiff feel guilty

about divorcing his wife. He regularly forced plaintiff into discussions about religion and

proselytized to plaintiff. He mocked plaintiff in front of others by engaging in a goose step

march while proceeding down the hall and past plaintiff's office door. He pulled plaintiff's hair

out with pliers in an effort to emphasize the sincerity of his Christian-held beliefs. And he made

quite concerning statements about the Jews being the first "terrorists," learning their "lesson" in

the Holocaust and having family members who were "Nazis."

Smith also constantly chided, harassed and mocked plaintiff for failing to subscribe to

and display what Smith perceived as the desired traits of masculinity. Smith regularly used

greetings and sang songs which ridiculed plaintiff for displaying effeminate behavior. He often

slapped plaintiff on the buttocks while making homophobic remarks. He would prance up the

hall and past plaintiff's office while thrusting his pelvis as if to mock plaintiff for engaging in

homosexual behaviors. He made derisive comments about plaintiff's slender build and belittled

him for taking dancing lessons. He repeatedly ridiculed plaintiff by calling him a faggot and did

so in front of the other office workers.

32

Taken as a whole, the harassment aimed at plaintiff because of his religion and sex was

more than sufficient to meet the severe or persuasive element. Assuming the accuracy of

plaintiff's account, a number of the behaviors were severe. And Smith made it a regular practice

to ridicule and mock plaintiff in front of others. This behavior occurred to such a degree that

plaintiff undertook somewhat unusual measures to stop the behavior, such as trying to change his

name, entering the workplace and positioning himself differently and moving his desk. These

measures may well be understood by the trier of fact to be reactions taken in desperation.

Reading the record in the light most favorable to plaintiff, the finder of fact could conclude that

the harassment was both severe and pervasive.

Defendant's efforts to foreclose plaintiff's harassment claim as a matter of law pursuant to

the Faragher/Ellerth doctrine likewise fall short of the mark. “Employers may be liable for either

a supervisor’s or a co-worker’s discriminatory acts.” In re Tribune Media Co., 902 F.3d 384,

399 (3d Cir. 2018). When a hostile work environment is created by a non-supervising employee,

such as a co-worker, then the employer is vicariously liable only if the employer was negligent in

controlling working conditions. Vance v. Ball State Univ., 570 U.S. 421, 424 (2013); Huston v.

Procter & Gamble Paper Products Corp., 568 F.3d 100, 104 (3d Cir. 2009). In general,

"employer liability for co-worker harassment exists only if the employer failed to provide a

reasonable avenue for complaint or, alternatively, if the employer knew or should have known of

the harassment and failed to take prompt and appropriate remedial action." Huston, 568 F.3d at

105. In this scenario, the employee has the burden of proving the negligence needed to establish

vicarious liability. Ellerth, 524 U.S. at 767.

Where, however, a supervisor creates a hostile work environment, then a different set of

rules apply. Vance, 570 U.S. at 424. In this scenario, an employer is strictly liable for a

33

supervisor’s actions “[i]f the supervisor’s harassment culminates in a tangible employment

action.” In re Tribune Media Co., 902 F.3d at 399 (quoting Vance, 570 U.S. at 424). A

“tangible employment action” is “a significant change in employment status, such as hiring,

firing, failing to promote, reassign[ing] with significantly different responsibilities, or a decision

causing a significant change in benefits.” Id. at 399–400 (citation and quotation marks omitted)

(alteration in original). A supervisor under Title VII is an individual whom the employer has

empowered to take tangible actions against the victim. Vance, 570 U.S. at 424.

Plaintiff asserts that because it is undisputed that Smith was a supervisor and the record

shows that he perpetrated the harassment to the point where it culminated in a constructive

discharge, the tangible employment requirement is satisfied and, therefore, the Faragher/Ellerth

affirmative defense is unavailable. The difficulty with this position is that the Supreme Court

directly considered this issue in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004).

There, the Court squarely held:

To be sure, a constructive discharge is functionally the same as an actual termination

in damages-enhancing respects. As the Third Circuit observed, both “en[d] the employer-

employee relationship,” and both “inflic[t] . . . direct economic harm.” But when an

official act does not underlie the constructive discharge, the Ellerth and Faragher analysis,

we here hold, calls for extension of the affirmative defense to the employer.

Id. at 148 (citations omitted). Thus, plaintiff's assertion of a constructive discharge does not

supply the tangible employment action needed to preclude defendant from pursuing its

affirmative defense.

In contrast, where a supervisor creates a hostile work environment but has not taken

tangible employment action against the employee as part of that environment, then the

"employer may escape liability by establishing, as an affirmative defense, that (1) the employer

exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff

34

unreasonably failed to take advantage of the preventive or corrective opportunities that the

employer provided." Vance, 570 U.S. at 424 (citing Faragher, 524 U.S. at 807; Ellerth, 524

U.S. at 765). Vicarious liability may be imposed in such circumstances because, although less

direct, the harasser is still "aided-in-the-accomplishment" of the harassment by the very nature of

his or her position of authority over the employee. Id. at 429-30. In this regard, "a supervisor's

power and authority invests his or her harassing conduct with a particularly threatening

character, and in the sense, the supervisor is always aided by the agency relation." Id. at 430.

Permitting the defendant to raise and prove the affirmative defense in this setting both

accommodates the agency principles of vicarious liability and advances "Title VII's equally basic

polices of encouraging forethought by employers and saving action by objecting employees." Id.

(citing Faragher, 524 U.S. at 803-5; Ellerth, 524 U.S. at 763).

The "cornerstone" of an analysis assessing an employer's invocation of the

Faragher/Ellerth defense is "reasonableness." Minarshy v. Susquehanna County, 895 F.3d 303,

311 (3d Cir. 2018). The first prong is focused on "the reasonableness of the employer's

preventative and corrective measures," while the second is focused on "the reasonableness of the

employee's efforts (or lack thereof) to report misconduct and avoid harm." Id.

There is no question that the first prong of the defense places on a defendant the duty to

"exercise reasonable care to prevent and correct promptly" any unlawful harassing behavior in

the workplace. Id. at 312. And from the beginning, the Court made clear that "the existence of

a functioning anti-harassment policy could prove the employer's exercise of reasonable care so as

to satisfy the first element of the affirmative defense." Id. (emphasis in original) (citing

Faragher, 524 U.S. at 807). But maintaining a written anti-harassment policy and requiring a

new employee to acknowledge having received and read the policy at the commencement of

35

employment does not mean that the inquiry on the first element is definitively satisfied in a

defendant's favor. Id.; Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 118 (3d Cir. 1999)

(“Ellerth and Faragher do not, as the defendants seem to assume, focus mechanically on the

formal existence of a sexual harassment policy, allowing an absolute defense to a hostile work

environment claim whenever the employer can point to an anti-harassment policy of some

sort.”); Kanish v. Crawford Area Transportation Auth., 2021 WL 1520516, *6 (W.D. Pa. March

26, 2021) ("The mere existence of an anti-discrimination policy, however, does not establish that

a defendant has met its burden for the first element of the defense.") (collecting cases). And this

is so even though the policy provides multiple avenues to report harassing behavior. Minarsky,

895 F.3d at 312.

Instead, careful consideration of the entire constellation of circumstances must be

undertaken in assessing whether there are material facts in dispute that can support a finding that

the defendant put a policy in place that sufficiently was calculated to be effective and discharge

its duty "to exercise reasonable care to prevent and correct promptly any [] harassing behavior."

Id. at 313. For example, evidence from which the finder of fact could infer that harassment

existed in the workplace and/or was continuing despite the existence of the adopted policy can

have a meaningful bearing on whether the reasonable care standard has been met as a matter of

law. Id. at 312-13; see also Tillison v. Capitol Bus Co., 2008 WL 2704536, *9 (M.D. Pa. July 8,

2008) (the lack of affirmative steps or training beyond the promulgation of an antiharassment

policy coupled with the plaintiff's brief review of the policy at the time of hire created a material

issue on whether the defendant acted reasonably as to the first element of the affirmative

defense); Bennett v. Progressive Corp., 225 F. Supp.2d 190, 206-7 (N.D. N.Y. 2002) (the

measures an employer has taken to disseminate a policy, its response to any inappropriate

36

behavior in the workplace, and the effectiveness of any such response are to be considered;

issues of fact as to whether the employer's policy and actions are effectively remedial and

promptly aimed at preventing and eliminating harassing behavior are within the province of the

jury) (collecting cases).

Here, several aspects of the record preclude defendant's efforts to insulate from further

consideration its undertakings seeking to establish the exercise of due care as a matter of law.

First, as a new employee it is undisputed that in addition to reading and familiarizing himself

with the employee handbook, plaintiff was to complete a training module familiarizing himself

with prohibited workplace harassment and the avenues available to report the same. Plaintiff did

not promptly complete a number of the new employee training modules, and this was brought to

management's attention. Even then, it was over twelve months before plaintiff completed the

workplace harassment training notwithstanding that it was required for new employees.

Second, Smith indicated that he had completed the very same training. In other words,

the supervisor at the satellite Export office was familiar with the same anti-harassment policy

and had underwent the same training.

Third, Smith engaged in the harassing behavior in the open office and at times in front of

other employees. He made derisive comments about Jews and intimidating statements that

appeared to validate the Nazi regime. He would goose step march down the hallway and

proselytize about the superiority of Christianity. He made similar statements about plaintiff's

physique and lack of machoism. He made derogatory statements about plaintiff's sexuality and

portrayed him as a homosexual. He frequently criticized plaintiff about his lifestyle choices and

mocked him about his choice of private activities such as swing dancing. And he did all of this

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in front of other workers in and around the workplace, making it part of the Export office

atmosphere.

Fourth, plaintiff identified at least three other employees who joined with Smith in

perpetrating the harassment. These employees engaged in the same conduct and joined in

Smith's efforts to promote Christianity and belittle plaintiff for not projecting a manly image in

the workplace.

Fifth, there did not appear to be any other in-office individual tasked with monitoring the

integrity of the work environment. The record suggest that defendant left this solely to one

individual: Smith. This takes on added significance when the satellite nature of the Export office

is taken into account.

This consultation of circumstances is enough to permit the finder of fact to pass on

whether defendant met its burden of exercising reasonable care to prevent and correct promptly

any harassing behavior. The inference is raised that defendant recognized at least the need for

actual training on harassment for new employees. Yet it failed to assure that plaintiff had that

training for over a year.

The inference also is raised that what training was supplied was insufficient to impress

upon Smith the need to keep such discussions, ridicule and belittling behavior out of the

workplace. It equally can be inferred that it was insufficient to impress upon the other office

employees the need to do the same and/or to recognize the harm created from such a toxic

environment.

Given the entirety of the record as read in the light most favorable to plaintiff and the

numerous inferences about the shortcomings of defendant's efforts to prevent impermissible

38

harassment in the workplace in the first place, the issue of whether defendant "exercised

reasonable care to prevent" unlawful behavior is one that must be reserved for the finder of fact.

Material issues of fact likewise abound about whether defendant's response to plaintiff's

complaints of harassment constituted the exercise of reasonable care to correct promptly the

reported harassing behavior. To be sure, defendant's response consisted of Manno promptly

coming up to the Export office and interviewing plaintiff, Smith and a few other office workers.

At the conclusion of the first interview, Manno did nothing to insulate plaintiff from the

supervision of Smith, even though the investigatory process laid bare exactly who had

complained. Nor was any other action taken. The inference can be drawn that defendant was

unwilling to credit plaintiff's account of Smith's behavior without independent corroboration

from other individuals. And this response was repeated after plaintiff reported the instance of a

menacing threat from Smith. Plaintiff was not separated from Smith's supervision, removed

from the workplace or assured that his complaints would not subject him to further hostile

treatment. Indeed, Manno's reaction left plaintiff with the distinct impression that defendant did

not believe him.

Defendant's response to plaintiff's reports must be assessed in part on the entirety of the

record. And the finder of fact will be free to take into account the behavior Smith did admit to

during his interview with Manno. These admissions tended to substantiate to a significant

degree the foundations of plaintiff's initial report. And they were deemed to carry the necessary

implications needed for defendant to issue disciplinary action against Smith, albeit that the

discipline was issued fourteen days after the second report and then only after plaintiff left his

employment with defendant.

39

Given the entirety of the record as read in the light most favorable to plaintiff and the

numerous inferences about the shortcomings of defendant's efforts to prevent impermissible

harassment in the workplace in the first place, the issue of whether defendant "exercised

reasonable care to . . . correct promptly" any unlawful behavior also is one that must be reserved

for the finder of fact.

Defendant likewise has failed to demonstrate that the record can only support a finding

that plaintiff unreasonably failed to take advantage of the actual preventive or corrective

opportunities provided or to avoid harm otherwise. This element, and the concomitant inquiry,

are "tied to the objective of Title VII, to avoid harm, rather than provide redress." Minarsky, 895

F.3d at 313. And as a general matter, a significant passage of time while the harassment is

ongoing coupled with the employee's failure to take advantage of a well-implemented and

effectively functioning anti-harassment policy will foreclose the employee's ability to defeat the

employer's invocation of the Faragher/Ellerth defense. Id. (citing Jones v. Southeastern Pa.

Transp. Auth., 796 F.3d 323, 329 (3d Cir. 2015) (employee's failure to report ongoing hostile

work environment for over ten years and decision to do so only after she was written up for time-

sheet fraud coupled with the undisputed fact that the employee had worked in the employer's

office of civil rights, thus giving her knowledge of the existing anti-harassment policies and

procedures, established the employee's failure to exercise reasonable care or otherwise avoid

harm as a matter of law)). Nevertheless, workplace harassment is "highly circumstance-specific"

and careful consideration must be given to the facts surrounding the employee's actions

responsive to the harassment in order to assure that where appropriate, material issues about the

reasonableness of those responses are left for the jury's consideration. Id. at 314.

40

There are several principles that guide the inquiry. First, while an employee's outright

failure to report persistent harassment can be significant where effective opportunities are

available to do so, the mere failure of an employee to report his or her harassment "is not per se

unreasonable." Id. Second, "the passage of time is just one factor in the analysis." Id.

Moreover, the particular nature of the working relationship between the alleged victim

and perpetrator must be examined. In this setting, evidence that a supervisor utilized his or her

control over the work environment or took advantage of his or her vested authority to facilitate

the harassment can provide meaningful insight into whether an employee's responsive reactions

can be found to have been reasonable. Id. The supervisor's response to an employee's efforts to

curb the offensive behaviors as well as any outside financial pressures that heighten any risk

likely to be generated from an employee mounting further resistance and taking formal action

also are not to be overlooked. Id. at 315.

If an employee asserts fear of retaliation as a basis for inaction in invoking the formal

leavers of an anti-harassment policy, the surrounding circumstances must be examined to ferret

out those situations where the fear could be determined to be well-founded and thus a reasonable

response to a perplexing or complicated situation. Id. Of course, a generalized fear of retaliation

"is insufficient to explain a long delay in reporting" harassment. Id. (collecting cases). But in

contrast, fear of adverse action that is substantiated by record evidence can support a finding that

the employee acted reasonably in not reporting the offending conduct. Specific record evidence

bearing on any proclaimed fear of retaliation, whether from prior interactions between the

employee and the supervisor or between other employees and the supervisor and/or upper

management may be used to explain why an employee's inaction could be found to be reasonable

under the circumstances. For example, if the supervisor instilled in the employee a belief of

41

mistrust of those who would consider and act on any report of misconduct, or if the supervisor

had a track record of avoiding meaningful discipline for engaging in impermissible conduct, such

evidence may well shed light on why a belief that availing oneself of the machinery behind an

anti-harassment policy "would be futile, if not detrimental" and thus capable of being found

objectively reasonable under the circumstances. Id. at 316.

Here, there is substantial record evidence which when construed in plaintiff's favor could

support a finding that plaintiff's failure to invoke the machinery behind defendant's anti-

harassment policy was not an unreasonable failure to take advantage of a preventive opportunity

or to avoid harm otherwise. First, defendant's basic evidence that plaintiff had an adequate

understanding of defendant's preventive policies consists of his signing an acknowledgement of

receiving and reading the employee handbook, which acknowledgement was obtained at the

beginning of plaintiff's employment. While defendant will be able to argue that the availability

of the information on its anti-harassment policy within the handbook was enough to make

plaintiff fully aware of the intricacies and nuances of how it was intended to be implemented and

the protections it was intended to provide, the jury may find that at the time of hire plaintiff's

concerns about being harassed were non-existent and his mere acknowledgement of receiving the

handbook does not equate to a meaningful understanding of the policy's scope, operations and

protections. Compare Smokin' Joe's Tobacco Shop, 2007 WL 1258132, *7 ("While Smokin'

Joe's had an anti-discrimination policy that was disseminated to employees in the employee

handbook, this alone is not a basis for granting summary judgment to the defendant."); Tillison,

2008 WL 2704536, *9 (brief review of anti-harassment policy with employee on the first day of

employment coupled with evidence suggesting little else was done in implementing the policy

created a genuine issue of material fact on whether the defendant acted reasonably to prevent

42

harassment). Indeed, plaintiff claims he did not actually receive any specific details on

defendant's anti-harassment policy prior to his December 7, 2017, training. And of course, the

jury may bring their common experiences to bear regarding the starting of a new job after an

interstate move in evaluating what a reasonable employee should be expected to retain from the

initial presentation of such information in that manner. Such experiences might well lead them

to conclude that plaintiff's failure to retain the scope of the policy's protections and/or the details

of its procedures and protections was not unreasonable.

Moreover, defendant's policy of having new employees complete a training module on

the anti-harassment policy, and thereby emphasizing and reinforcing the behaviors the policy

sought to prevent and regulate, can and might well be viewed by the jury as supplying an

important component of defendant's policy. After all, it was part of defendant's protocol to have

new employees watch this training. And the moment plaintiff completed it, he utilized the

mechanisms of the policy to register a complaint about Smith's behavior. The jury might well

reason that defendant's efforts in assuring plaintiff timely complete this training were lax and,

should they be persuaded that a sufficient amount of the behavior recounted by plaintiff did in

fact occur, they could further find that defendant's lax approach in having plaintiff complete this

training was a contributing factor in plaintiff not making management in Texas aware of Smith's

offensive behavior at an earlier date.

Smith's control of the Export office and the power dynamic between plaintiff and Smith

also can be found to have a bearing on plaintiff's delay in reporting Smith's conduct. Smith was

in charge of the Export office and staff. Within the Export office, Smith did not answer to any

other officer of defendant, presumably because no higher-ranking officer was present. Smith had

direct control over plaintiff's working environment and working conditions. He directly

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reviewed plaintiff's work and he oversaw and scrutinized plaintiff's interactions with other co-

workers within this satellite office. This dominance over the day-today functioning of the Export

office could well be viewed by the jury as a factor in evaluating the reasonableness of when and

how plaintiff chose to respond to Smith's harassment.

Smith also led plaintiff to believe that Smith had significant influence over the entire

workforce in the Export office. He repeatedly emphasized to plaintiff his ability to control the

advancement of other employees working at the Export office. He reinforced the significance of

this control by bragging that he was able to block advancements by Adams and Rush. Smith

thought this was amusing and when Adams eventually left after failing to be advanced, Smith

ratcheted up his offensive behavior toward plaintiff.

Smith's prominence in the office likewise could be found to have influenced the

willingness of the other office workers to join in Smith's taunting and ridiculing plaintiff. Smith

engaged in the harassing behavior in the office in front of plaintiff's co-workers and, if plaintiff is

believed, at least three of those workers joined in ridiculing plaintiff over his Jewish beliefs and

rituals and/or his effeminate traits.

The jury will be able to consider the power dynamic between Smith and plaintiff and the

impressions Smith sought to instill regarding the same in evaluating plaintiff's responses to

Smith's behavior. Assuming the jury credits plaintiff's account on this score, the jury could find

plaintiff's beliefs that 1) any option to report Smith's behavior necessarily would proceed through

Smith and 2) Smith had significant influence and control over how the company management in

Texas would respond to any such efforts were reasonable. The jury likewise could find

plaintiff's numerous attempts to deal with the harassment by utilizing ways to avoid Smith and

eliminate the opportunities for Smith to engage in the behavior, such as changing the way he

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came into the office in the morning, changing where his desk was positioned in the office,

changing his name and attempting to transfer away from Smith's direct supervision, were

reasonable attempts to deal with Smith's behavior and avoid further harassment in the workplace.

Such a determination of reasonableness would only be bolstered if the jury credits plaintiff's

account of the perceptions of control Smith instilled in plaintiff.

In short, the manner in which defendant administered its anti-harassment policy in the

Export office in general and as to plaintiff in particular, its lax approach in assuring plaintiff

completed the required anti-harassment training for new employees, Smith's unilateral control of

the Export office, the power dynamic between plaintiff and Smith, and the beliefs and

perceptions Smith sought to instill in plaintiff regarding Smith's influence over Export

employees' advancement with defendant provide sufficient grounds for the jury to conclude that

plaintiff's failure to invoke the machinery behind defendant's anti-harassment policy was not an

unreasonable failure to take advantage of a preventive opportunity or to avoid harm otherwise.

In other words, defendant has failed to show that the record only can be read as demonstrating

that plaintiff failed to exercise reasonable care to avoid the harassment perpetrated by Smith or to

protect himself from harm otherwise. Consequently, the record presents material issues of fact

on the second element of defendant's affirmative defense as well.

Plaintiff’s claim for constructive discharge also survives defendant’s motion for summary

judgment. To sustain a constructive discharge claim, a plaintiff must present evidence from

which the finder of fact can conclude "that the working environment became so intolerable that

[plaintiff's] resignation qualified as a fitting response." Pennsylvania State Police v. Sunders,

542 U.S. 129, 134 (2004). In other words, in addition to proving all of the elements for recovery

on a claim for hostile work environment, plaintiff also must convince the jury that his “working

45

conditions [became] so intolerable that a reasonable person would have felt compelled to resign.”

Id. at 147.

“Under the constructive discharge doctrine, an employee's reasonable decision to resign

because of unendurable working conditions is assimilated to a formal discharge for remedial

purposes.” Hill v. Borough of Kutztown, 455 F.3d 225, 233 n.7 (quoting Pennsylvania State

Police, 542 U.S. at 141). "The inquiry is objective: Did working conditions become so

intolerable that a reasonable person in the employee's position would have felt compelled to

resign?" Id. Factors to be considered include “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.” Harris v. Forklift

Systems, Inc., 510 U.S.17, 23 (1993). Of course, the analysis also focuses on the “totality of the

circumstances,” as no one factor is determinative. Andrews v. City of Philadelphia, 895 F.2d

1469, 1482 (3d Cir. 1990).

Defendant maintains that the record fails to contain evidence to establish that plaintiff's

working conditions became sufficiently intolerable. In this regard, it highlights the fact that

plaintiff was not subjected to an adverse employment action, Manno investigated plaintiff's

initial allegations and plaintiff reported that things had "been fine actually" and "everyone

seemed to be getting along" prior to making his second report and plaintiff was in contact with

his former employer prior to resigning. And it highlights unreported cases to support its

construction that plaintiff has shown nothing more than isolated incidents of workplace

unpleasantries and merely developed a subjective belief that his workplace had become stressful

and frustrating. While defendant will be free to convince the jury that this was the actual state of

affairs when plaintiff tendered his resignation, the record contains sufficient evidence to support

46

a finding that a reasonable person would have been compelled to resign due to the existence of

intolerable working conditions.

In addition to all of the events forming the foundation of plaintiff's claim of hostile work

environment, plaintiff is prepared to testify that after Manno came to the Export office and

interviewed Smith and the other office workers, it was readily apparent to everyone that plaintiff

had filed a complaint. Other than interviewing these alleged participants/witnesses, Manno did

nothing to protect plaintiff from Smith or the other workers' ire. Smith responded by becoming

hypercritical of plaintiff's work and giving him demeaning and confusing tasks. His escalating

criticism about work tasks and demeaning review of plaintiff's efforts increased to the point

where plaintiff felt he had no choice but to confront Smith. When he did so, he told Smith that

he wasn't afraid of him. Smith responded by gesturing as if he were pulling a gun and told

plaintiff that he, Smith, was evil and plaintiff needed to be afraid of evil. Plaintiff understood

this gesture and response as a real threat to his physical wellbeing. He believed Smith was

saying that he could in fact shoot plaintiff.

Plaintiff once again reported Smith's conduct to Manno. In doing so he told Manno that

Smith had gestured at him as if he wanted to start a fight and reached below his desk and

gestured as if he were pulling a gun. Manno simply thanked plaintiff for relaying the

information and asked if there were any witnesses. She offered no other information to assure

plaintiff that his response was being taken seriously and/or that measures to protect him from

Smith would be forthcoming. Manno spoke to Smith by telephone after receiving plaintiff's

December 18, 2017, report. She also notified defendant's legal department regarding the same.

Manno could not recall if she even referenced the "threatening" gesture by Smith when she spoke

to him or notified the legal department.

47

Manno's immediate response to plaintiff was to ask if there were any witnesses. This and

her failure to implement any meaningful response to plaintiff's report of Smith's threatening

gesture suggested to plaintiff and reinforced his belief that Smith really did have the control and

persuasion he claimed to possess with regard to defendant's upper management personnel. These

events made plaintiff become very edgy, apprehensive and fearful.

Plaintiff confided in his therapist about these recent events and discussed various options

for preserving his mental wellbeing. He then proffered his "resignation" on December 29, 2017.

Defendant prepared disciplinary action after plaintiff's December 18, 2017, report and thereafter

implemented the discipline against Smith on January 2, 2018.

Defendant did not make anyone at the Export office aware that it was intending to take

disciplinary action against Smith. It issued the discipline only after plaintiff indicated he was "in

fear for [his] life" and resigned.

Should the jury credit plaintiff's version of these events, it may well infer that Manno

displayed a callous attitude of disbelief to plaintiff's report of threatening conduct. The jury also

will be free to credit plaintiff's account that Smith actually did gesture in a menacing way that

indicated he could shoot plaintiff and did so with the intent to place plaintiff in genuine fear for

his physical safety. Given that the jury could find that the hostility between Smith and plaintiff

escalated in less than eleven days after plaintiff made his first report, the harassment became

focused on plaintiff's job performance and Smith became increasingly hypercritical of plaintiff's

work, Smith began giving plaintiff demeaning and confusing tasks which could be viewed as an

attempt to establish a pretext for failure, and Smith threatened plaintiff in a menacing way that

implied his physical safety was at risk, the jury may well be convinced that 1) the frequency of

the harassment escalated, 2) it increased to the point of a threat of severe bodily harm, 3) plaintiff

48

subjectively believed his safety was a risk, and 4) Smith's harassing interactions with plaintiff

had reached a point where they were extracting a tremendous cost in plaintiff's work

performance. And the jury may well conclude that these events and the lack of any meaningful

support from defendant's management personnel on or within the days after plaintiff made the

reports, when coupled with the nature and history of Smith and plaintiff's interactions up until

that point, would lead a reasonable employee in plaintiff's position objectively to believe that

resigning was the only "fitting response" to the situation.

Defendant's efforts to gain summary judgment on plaintiff's claim of retaliation fail for

the same reasons. A prima facie case of retaliation requires a plaintiff to proffer evidence

demonstrating that “(1) she engaged in protected conduct; (2) after or contemporaneous with

engaging in that conduct, her employer took an adverse action against her; (3) the adverse action

was 'materially adverse'; and (4) there was a causal connection between her participation in the

protected activity and the adverse employment action.” Hare v. Potter, 220 F. App'x 120, 127

(3d Cir. 2007). The parties do not dispute that a claim of retaliation is to be analyzed at

summary judgment under the well-established McDonnell-Douglas/Burdine tripartite paradigm.

In Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006), the

Supreme Court clarified that the anti-retaliation provision is not limited to “workplace-related or

employment-related retaliatory acts and harm.” Furthermore, it is not to be construed as

“forbidding the same conduct prohibited by the antidiscrimination provision.” Id. Instead,

retaliatory actions can be found to be “materially adverse” if they would have the effect of

“dissuad[ing] a reasonable worker from making or supporting a charge of discrimination.”

Burlington, 548 U.S. at 68 (what is materially adverse “often depends on a constellation of

49

surrounding circumstances, expectations, and relationships which are not fully captured by a

simple recitation of the words used or the physical acts performed”).

Defendant maintains that a form of adverse employment action is needed to sustain such

a claim and a voluntary resignation does not suffice. It also asserts that plaintiff's evidence fails

to establish a causal connection between his complaints about Smith and plaintiff's resignation.

Plaintiff asserts that Smith escalating scrutiny and harassment within six days after Manno's

interviews revealed that plaintiff had filed a complaint against Smith provides sufficient evidence

of both the adverse action requirement and the requisite causal connection.

Defendant's contention that plaintiff has failed to identify any adverse action misses the

forest for the trees. It has long been settled that "a plaintiff who voluntarily resigned may

maintain a case of constructive discharge when the employer's allegedly discriminatory conduct

creates an atmosphere that is the constructive equivalent of a discharge.” Sheridan v. E.I.

DuPont de Nemours & Co., 100 F.3d 1061, 1075 (3d Cir. 1996) (en banc) (citing Gray v. York

Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir. 1992)). And while defendant will be free to

argue that plaintiff's reports did not reflect the atmosphere of plaintiff's work environment at the

Export office, the record contains sufficient evidence to submit the question of whether the

failure to take any action immediately after plaintiff's first and second reports amounted to

defendant knowingly permitting "conditions of discrimination in employment so intolerable that

a reasonable person subject to them would resign.” Aman, 85 F.3d at 1084 (quoting Goss v.

Exxon Office Systems Co., 747 F.2d 885, 888 (3d Cir. 1984)).

It likewise is well established that "a constructive discharge qualifies as adverse

employment action in the sense that it is the legal equivalent to actual termination." Price v.

Delaware Dept. of Correction, 40 F. Supp.2d 544, 553 (D. Del. 1999) (citing Jordan v. Clark,

50

847 F.2d 1368, 1377 n. 10 (9th Cir.1988) (citing 3 A. Larson & L. Larson, Employment,

Discrimination, § 87.20 at 17–102 to 17–105 (1987)); accord Ellingsworth v. Hartford Fire Ins.

Co., 247 F. Supp.3d 546, 556 (E.D. Pa. 2017) ("A constructive discharge constitutes an 'adverse

employment action' for purposes of Title VII - if proven, it is the legal equivalent of being

terminated."); Clegg v. Falcon Plastics, Inc., 174 F. App'x 18, 27 (3d Cir. 2006) ("A constructive

discharge can count as an adverse employment action for retaliation purposes.") (citing Durham

Life Ins. Co. v. Evans, 166 F.3d 139, 156 & n. 11 (3d Cir. 1999)). In other words, if the plaintiff

establishes that he or she has been constructively discharged, the discharge is a sufficient

showing of an "adverse action" needed to pursue a claim for retaliation. Clegg, 174 F. App'x at

27; Ellingsworth, 247 F. Supp.3d at 556; Price, 40 F. Supp.2d at 553; Lombard v. New Jersey

Dep. of Trans., 2018 WL 5617553, *7-8 (D. N.J. Oct. 20, 2018) (constructive discharge

establishes adverse action for claim of retaliation). And this principle has been recognized by a

number of the courts of appeals as well. See, e.g., Jackman v. Fifth Judicial Dist. Dept. of

Corrections Services, 728 F.3d 800, 804 (8th Cir. 2013) ("An adverse employment action is

defined as a tangible change in working conditions that produces a material employment

disadvantage, including but not limited to, termination, cuts in pay or benefits, and changes that

affect an employee's future career prospects, as well as circumstances amounting to a

constructive discharge.") (citing Wilkie v. Dep't of Health and Human Servs., 638 F.3d 944, 955

(8th Cir. 2011)); Quinn v. St Louis County, 653 F.3d 745, 751 (8th Cir. 2011) ("Similarly, the

materially adverse employment action element may be met by a series of acts by the employer

that, considered collectively, amount to constructive discharge.") (citing Helton v. Southland

Racing Corp., 600 F.3d 954, 961 (8th Cir. 2010)); Williams v. Bristol-Myers Squibb, 85 F.3d

51

270, 274 7th Cir. 1996) (an established constructive discharge "would obviously be a materially

adverse employment action.").

As noted above, the record contains sufficient evidence from which the jury may find

each of the elements needed to establish liability on plaintiff's claim for hostile work

environment. It likewise contains sufficient facts to support a finding that after being informed

of the harassment, defendant failed to take affirmative steps to promptly correct and eliminate

the harassment or do anything to remove plaintiff from Smith's supervision or otherwise assure

that plaintiff would not be subjected to further adverse treatment or retaliation. And the

relationship culminated in Smith subjecting plaintiff to a menacing threat of being physically

harmed with a firearm. If the jury credits plaintiff's version of events, it will in effect have found

an adverse employment action in the form of a constructive discharge. Cf. Williams, 85 F.3d at

274 ("If your supervisor tells you that he'll shoot you unless you resign 'voluntarily,' and you do,

that's constructive discharge, though the threat itself is not an employment action of any sort.")

(Posner, J.); Chapin v. Fort-Rohr Motors, 621 F.3d 673, 679 (7th Cir. 2010) ("For example, we

have found constructive discharge when there is a threat to a plaintiff's personal safety.")

(collecting cases); Munday v. Waste Management of North America,, Inc., 126 F.3d 239, 243

(4th Cir. 1997) ("Constructive discharge may be an adverse employment action in violation of §

20003e–3(a) 'when the record discloses that it was in retaliation for the employee's exercise of

rights protected by the Act.'") (quoting Holsey v. Armour & Co., 743 F.2d 199, 209 (4th Cir.

1984), cert. denied, 470 U.S. 1028 (1985)). Consequently, defendant's contention that the record

fails to provide sufficient evidence on the "adverse action" needed for a retaliation claim is

specious.

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Plaintiff has provided sufficient evidence to submit the causation element to the jury as

well. In this regard, the record must contain sufficient evidence from which the finder of fact

can link the materially adverse action to retaliatory animus. Moore v. City of Philadelphia, 461

F.3d 331, 346 93d Cir. 2006). Two central factors are brought into play: (1) the “temporal

proximity” between the protected activity and the alleged retaliation and (2) the existence of any

“pattern of antagonism in the intervening period.” Jensen v. Potter, 435 F.3d 444, 450 (3d Cir.

2006) (quoting Abramson, 260 F.3d at 288 (quoting Woodson, 109 F.3d at 920-21)). However,

“[t]hese are not the exclusive ways to show causation” and it is important to consider all of the

proffered evidence as a whole to determine whether it “may suffice to raise the inference.” Id.

(quoting Farrell, 206 F.3d at 280 and citing in support Kachmar v. SunGard Data Systems, Inc.,

109 F.3d 173, 178 (3d Cir. 1997) (“The element of causation, which necessarily involves an

inquiry into the motives of an employer, is highly context specific.”).

Where there is a temporal proximity between the protected activity and the adverse

employment action, the requisite causal link may be inferred by the finder of fact. Woodson,

109 F.3d at 920. This is appropriate where the temporal relationship is sufficiently suggestive.

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 80 (3d Cir. 2000) (under certain

circumstances temporal proximity alone can be sufficient to establish an inference of causation);

Krouse, 126 F.3d at 503 (same); accord Jensen, 435 F.3d at 450 (“Timing alone raises the

requisite inference when it is “unusually suggestive of retaliatory motive.”). “But even if

temporal proximity . . . is missing, [it is appropriate to] look to the intervening period for other

evidence of retaliatory animus.” Woodson., 109 F.3d at 920 (quoting Krouse v. American

Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir.1997)).

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Where the temporal relationship is attenuated, a “time plus” other evidence is required.

Farrell, 206 F.3d at 280. This “other” evidence may, but need not, take the form of an

intervening pattern of antagonism or other evidence of retaliatory animus. Id. at 281. Proffering

sufficient proof is not limited, however, to timing and demonstrative proof alone; instead, this

element may be satisfied by “other evidence gleaned from the record as a whole from which

causation can be inferred.” Id.

Here, the timing of the adverse action is sufficiently suggestive. Plaintiff has posited

evidence to support findings that in the first few days after Manno's interviews in the Export

office, Smith had been calm and things were fine. But then Smith became increasingly

hypercritical of plaintiff's work and gave him demeaning and confusing tasks. His antagonism

toward plaintiff escalated to the point where plaintiff sincerely believed he had no choice but to

confront Smith. When he did so, Smith responded by gesturing as if he were pulling a gun and

in effect threatened plaintiff with being shot. Plaintiff understood the gesture as a real threat to

his physical wellbeing. He believed Smith was saying that he could in fact shoot plaintiff.

Given the relationship between Smith and plaintiff and Smith's background and ongoing

behavior in the workplace, a jury may well find that plaintiff's beliefs were objectively justified

and thus, there was a causal connection between plaintiff's reports of hostile treatment and

Smith's retaliatory treatment and menacing threat.

Moreover, defendant took no action to protect plaintiff from Smith's harassment or

provide protective measures from the potential for retaliation. It did not inform plaintiff of any

contemplated discipline against Smith or otherwise provide plaintiff with any understanding that

he would be protected from such treatment after having invoked defendant's antiharassment

policy. Plaintiff reported an increase in scrutiny and hostility within eleven days of making his

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first report. He further reported that the hostility culminated in a menacing threat of bodily

injury just six days after Manno completed the Export office interviews. Plaintiff's "constructive

discharge" occurred eleven days after the second report.

The timing and nature of an employer's remedial actions are matters for the jury where

there are material issues of fact about the promptness and effectiveness of such actions.

Andreolli v. Gates, 482 F.3d 641, 644 (3d Cir. 2007). Further, a plaintiff is not required to prove

that defendant intentionally permitted an environment to grow in hostility to the point where the

plaintiff's resignation was justified. The plaintiff only is required to prove that the defendant

knowingly permitted an environment to progress to that level. See Goss, 747 F.2d at 888 ("We

hold that no finding of a specific intent on the part of the employer to bring about a discharge is

required for the application of the constructive discharge doctrine. The court need merely find

that the employer knowingly permitted conditions of discrimination in employment so

intolerable that a reasonable person subject to them would resign."). Given the constellation of

circumstances presented, the finder of fact may be satisfied that the causation element for

plaintiff's retaliation claim has been proven by a preponderance of the evidence.

Finally, defendant moves for summary judgment on plaintiff's claims for "gender

discrimination" and "religious discrimination" on the ground that he has not proffered evidence

sufficient to establish an adverse employment action and therefore cannot pursue claims for

actionable instances of unlawful discrimination. Plaintiff has not mounted a response to

defendant's motion as it relates to these claims beyond his response in support of his hostile work

environment and concomitant constructive discharge claim(s). Nevertheless, a review of the

First Amended Complaint indicates that these counts (counts VII through X) seek only to place

defendant on notice that plaintiff is pursuing a claim for constructive discharge based on the

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culmination of the work environment plaintiff allegedly was forced to endure. Consequently,

defendant's motion will be denied on these claims as well.

For the reasons set forth above, defendant's motion for summary judgment will be denied.

An appropriate order will follow.

Date: September 29, 2022

s/David Stewart Cercone

David Stewart Cercone

Senior United States District Judge

cc: Andrew J. Horowitz, Esquire

Bruce C. Fox, Esquire

Tiffany A. Jenca, Esquire

Daniel V. Johns, Esquire

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