# HAMLITON v. NORRISTOWN STATE HOSPITAL

> District Court, E.D. Pennsylvania · August 1, 2024

URL: https://www.frixlaw.com/law-library/cases/10666934

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** August 1, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

REESHMA HAMILTON, CIVIL ACTION
Plaintiff,

v.

NORRISTOWN STATE HOSPITAL, NO. 23-4068
Defendant.

OPINION
Plaintiff Reeshma Hamilton has sued her employer, Defendant Norristown State Hospital
(“Norristown”) for retaliation, disparate treatment, and hostile work environment under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). Norristown moves for
summary judgment pursuant to Federal Rule of Civil Procedure 56 on all three counts. For the
reasons that follow, Norristown’s Motion shall be denied.
LEGAL STANDARD
A party is entitled to summary judgment if it 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). “By its very terms, this standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Inferences to be drawn from the
underlying facts contained in the evidential sources must be viewed in the light most favorable to
the party opposing the motion.” Peters Twp. Sch. Dist. v. Hartford Acc. & Indem. Co.,
833 F.2d 32, 34 (3d Cir. 1987); see also Scott v. Harris, 550 U.S. 372, 378 (2007) (cautioning

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that “courts are required to view the facts and draw reasonable inferences” in favor of the
nonmoving party (emphasis added). But “[w]hen opposing parties tell two different stories, one
of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of ruling on a motion for summary

judgment.” Scott, 550 U.S. at 380.
“A genuine issue is present when a reasonable trier of fact, viewing all of the record
evidence, could rationally find in favor of the non-moving party in light of his burden of proof.”
Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322-26 (1986); Anderson, 477 U.S. at 248-52). “The non-moving party may not
merely deny the allegations in the moving party’s pleadings; instead, he must show where in the
record there exists a genuine dispute over a material fact.” Id. (citation omitted). A moving
party is entitled to judgment as a matter of law where the “nonmoving party has failed to make a
sufficient showing on an essential element of her case with respect to which she has the burden
of proof.” Celotex, 477 U.S. at 323.

FACTUAL BACKGROUND
In February 2019, Hamilton who is Black, began working as a Performance Improvement
Specialist for Norristown, where, she alleges, she experienced repeated instances of race
discrimination over several years. Among other things, she alleges that she was improperly
denied a promotion she had been encouraged to seek—in favor, she says, of a less qualified
white employee, Laura Portnoy, who then became her direct supervisor.
Hamilton further alleges a host of racist conduct by Portnoy, and Portnoy’s alleged
conduct is the basis of a significant part of Hamilton’s case. Portnoy “constantly berated and
yelled at” Hamilton “throughout [her] employment,” Hamilton says, but did not berate or yell at

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white employees. She says that she and other Black employees were “constantly
micromanaged” by Portnoy, while white employees “were allowed to work independently.”
Worse, Hamilton says, Portnoy “frequently used” the n-word at work.
For these reasons, Hamilton says, she “reasonably believed that she was being subjected

to race discrimination” and between October 2019 and August 2020 she “made several
complaints of race discrimination” to Norristown’s Human Resources Department. The
complaints, she says, “were not properly addressed,” and the racist incidents continued. First,
during a birthday luncheon for her and other employees, another supervisor added the refrain,
“[y]ou look like a monkey, and you smell like one too,” to the Happy Birthday song sung for
her—Hamilton alleges that supervisor “compared [her] to a monkey” but “did not compare white
employees to monkeys.” Then, Hamilton alleges, Portnoy “moved [her] to a work location that
was unsuitable for [her] based on [her] job duties,” while “allow[ing her] white coworkers to
choose their own work locations.” Then in July 2021, Hamilton says, she “was denied overtime”
by Portnoy even as “[w]hite employees were allowed to work overtime.

In July 2021 Hamilton again “made a complaint of race discrimination,” and she filed
additional charges with the Pennsylvania Human Relations Commission (“PHRC”) and the
Equal Employment Opportunity Commission (“EEOC”). Still, for “the next several months”
after that, Hamilton alleges, Portnoy “continually denied [her] access to necessary information to
complete her work,” and on one occasion “struck her in the shoulder.”
Then, in April 2022, Hamilton “was subjected to unjustified discipline.” And after that,
she alleges, the explicitly racist conduct escalated: In May 2022, she alleges in her Complaint, a
supervisor “approached an employee and said, ‘we need to get all these n****rs’ out of here”
and then “began to sing ‘n****r, n****r, n****r.’” Hamilton says the incident “was

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immediately reported” to Norristown. It did not stop there: That same month, Portnoy
“physically pushed” her. And, even though Hamilton was removed from Portnoy’s supervision
(and placed under the supervision of supervisor Kristen Clement), she alleges, Portnoy continued
to harass and intimidate her.

Hamilton claims that: (1) she engaged in activity protected by Title VII when she
reported incidents of discrimination, and Norristown retaliated against her by taking adverse
employment actions as a result; (2) she suffered adverse employment actions for which “[n]o
legitimate nondiscriminatory reasons exist,” and circumstances surrounding those actions “give
rise to an inference of discrimination”; and, (3) Norristown “created a hostile work environment
for [her] on the basis of her race.”
DISCUSSION
A. Count I: Retaliation
Hamilton first claims that Norristown unlawfully retaliated against her for participating in
protected activity after she reported alleged instances of discrimination. She says that she was
harassed after she complained (both internally and by filing complaints with the PHRC and

EEOC).
Under Title VII an employer may not retaliate against an employee for “ma[king] a
charge, testif[ying], assist[ing], or participat[ing] in any manner in an investigation, proceeding,
or hearing” related to Title VII discrimination. 42 U.S.C. § 2000e-3(a). To state a claim for
unlawful retaliation, a plaintiff “must show that (1) she engaged in a protected activity; (2) she
suffered an adverse employment action; and, (3) there was a causal connection between the
participation in the protected activity and the adverse action.” Carvalho-Grevious v. Delaware
State Univ., 851 F.3d 249, 257 (3d Cir. 2017).

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i. Protected Activity
Norristown does not dispute that Hamilton engaged in protected activity when she
reported alleged incidents of discrimination to Norristown personnel, the PHRC, and the EEOC,
so the dispute will turn on whether a material dispute of fact exists as to whether Hamilton
suffered an adverse employment action and, if so, whether there was a causal connection

between the protected activity and the adverse action.
ii. Adverse Employment Action
A Title VII retaliation plaintiff “must show that a reasonable employee would have found
the challenged action materially adverse.” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006). The material-adversity standard “separate[s] significant from trivial
harms.” Id. The “ordinary tribulations of the workplace,” like “petty slights or minor
annoyances”—even if retaliatory—will not suffice, because “Title VII . . . does not set forth “a
general civility code for the American workplace.” Id.
Norristown argues that Hamilton “cannot establish an adverse action.”1 It contends that
“the only tangible actions that [Hamilton] can point to are the following: (1) being denied

overtime; (2) being denied promotions; and, (3) being unjustly disciplined.” (Norristown does

1 There is some confusion in the briefing regarding what qualifies as an adverse action for which analysis.
Norristown only directly addresses adverse employment action in the section of its Motion dedicated to Hamilton’s
disparate-treatment claim, and its section on her retaliation claim seems just to incorporate its disparate-treatment
adverse-action analysis by reference. It does not distinguish between the two adverse-action analyses. Hamilton, in
turn, responds in her retaliation section to the adverse-employment-action argument from Norristown’s disparate-
treatment section.
Norristown’s imprecision injects not just formal but substantive confusion, because, as will be discussed further
below, the adverse-action analysis in the retaliation context differs from that in the disparate-treatment context. See,
e.g., Davis v. City of Newark, 285 Fed. App’x. 899, 904, (3d Cir. 2008) (“In a claim of retaliation, the standard
required to show an ‘adverse employment action’ differs from the standard used for claims of discrimination) (citing
Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006)).

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not argue that such actions would not count as adverse; it argues that they did not happen.)2
But Hamilton does not accept Norristown’s characterization of her alleged adverse action
as limited to those three elements. In fact, she argues she “did not suffer a . . . traditionally
adverse behavior.” Instead, she contends, she suffered a rash of “frequent and severe”

unpleasant behavior, primarily by Portnoy, that was “enough to dissuade a reasonable worker
from making or supporting a charge of discrimination” and thus constitute retaliation.
Specifically, in addition to the three elements discussed above (denial of overtime, denial of
promotion, and unwarranted punishment), she alleges that (1) Portnoy micromanaged her and
“admonish[ed her] regularly without cause, and yelled at [her]”; (2) Portnoy entered her office
and “intimidated” her even though Kristen Clement had assured her Portnoy “had been
instructed” not to enter her office; (3) “[n]othing was done” about Portnoy’s entering her office;
(4) Portnoy “would routinely (at least weekly) find a pretextual reason to come into [her] office”
and “yell at” her, “interrupt” her, or “simply glare [at] her defiantly”; (5) Portnoy “would
sometimes follow [her] into the bathroom for no apparent reason” and “monitor” her breaks; (6)

2 First, as to overtime denial, Norristown says Hamilton “was not eligible for ordinary overtime as a management
employee” but rather “could receive comp time, of which she never took advantage.” As evidence it cites the
declaration of Kristen Clement, who attests that Hamilton “is designated a management employee” not eligible for
overtime, that in fact Hamilton never requested overtime, and that Hamilton was eligible for comp time but never
sought it. Hamilton, on the other hand, contends that “[i]n 2021, there were two special projects,” and “Portnoy
offered everyone but [Hamilton] the chance to do three hours of overtime a week for the entire year.” Hamilton says
she “would have accepted the overtime” and received extra pay,” but instead she “lost this opportunity” and at least
one white woman was given the overtime instead. For support she cites her own affidavit.
Second, as to denial of promotion, Norristown argues that “when [Hamilton] later applied” for a different promotion
(to Human Services Representative I), “she got it.” (Hamilton does not argue that any promotion denial constituted
a retaliatory adverse action.)
And as to unwarranted discipline, Norristown contends that Hamilton “was disciplined because the investigation
into her conduct demonstrated that she was unprofessional.” Hamilton concedes that her discipline was
“substantiated,” but implies that when she filed her own complaints, they were improperly found unsubstantiated.

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“nothing was done” about Portnoy’s following her and monitoring her; (7) Portnoy “stuck out a
leg and tripped her,” and another time “pushed” her; (8) again, “[n]o action was taken against
Portnoy”; and, (9) she heard from another employee, who submitted a sworn affidavit, that
“Portnoy was using the n-word in a professional work setting—to refer to her Black employees,”

and in fact Hamilton herself “heard Portnoy referring to a[] forensic support staff member as the
‘n’ word.” It is Hamilton’s position that “[a]ny reasonable, average employee would feel
uncomfortable, punished[,] and retaliated against after experiencing behavior like this after
making a complaint against their manager” and “[a]ccordingly,” she has “presented a legitimate
form of adverse employment action.”
Hamilton’s argument appears to relate obliquely to the Supreme Court’s recent decision
in Muldrow v. City of St. Louis, 144 S. Ct. 967 (2024), in which the Court explained that Title
VII’s anti-retaliation provision “was meant to capture those employer actions serious enough to
‘dissuade[] a reasonable worker from making or supporting a charge of discrimination.’”
144 S. Ct. at 969 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 70 (2006)).

She contends that Muldrow “liberalized” the standard regarding what constitutes an adverse
employment action in a retaliation case—after Muldrow, she argues, “in order for a Title VII
retaliation plaintiff to show an adverse employment action, the employee need not show
significant harm, and need not show she lost wages or other similar harms.”
Hamilton’s analysis of Muldrow is wrong—Muldrow does not support her implicit
contention that ongoing harassment can constitute an adverse employment event for a Title VII
retaliation analysis. Muldrow did not liberalize the standard for Title VII retaliation plaintiffs. It
was a Title VII discrimination case, not a Title VII retaliation case. (The plaintiff in Muldrow
had been transferred from one unit to another for, she argued, discriminatory reasons. She did

7
not allege retaliation.) Accordingly, in that Muldrow addressed the discrimination not the
retaliation provision of Title VII, it does not alter the standard for a retaliation analysis.3
The standard to evaluate whether a challenged action is materially adverse in the context
of a retaliation claim has been set by the Third Circuit. First, “[r]etaliatory conduct other than

discharge or refusal to rehire” is protected “if it alters the employee’s compensation, terms,
conditions, or privileges of employment, deprives him or her of employment opportunities, or
adversely affect[s] his [or her] status as an employee.” Robinson v. City of Pittsburgh,
120 F.3d 1286, 1300 (3d Cir. 1997), overruled on other grounds by White, 548 U.S. 53 (2006)4
(quotations removed). And “not everything that makes an employee unhappy qualifies as
retaliation.” Id.
Then, in Jensen v. Potter, the Third Circuit addressed whether “severe or pervasive
retaliatory harassment” can give rise to a Title VII retaliation claim under the Court’s Robinson
framework. 435 F.3d 444, 448 (3d Cir. 2006), overruled on other grounds by White, 548 U.S. 53

3 To the extent Muldrow addresses retaliation at all, it is only to restate the retaliation standard set out in White and
limit that standard to the retaliation context by declining to import it into the substantive-discrimination context. In
White, as Muldrow explains, the Court “held that Title VII’s anti-retaliation provision—which prohibits an employer
from taking action against an employee for bringing or aiding a Title VII charge—applies only when the retaliatory
action is ‘materially adverse,’ meaning that it causes ‘significant’ harm.” Muldrow, 144 S. Ct. at 969. White, the
Court further explains, “adopted that standard for reasons peculiar to the retaliation context. The test was meant to
capture those employer actions serious enough to ‘dissuade[] a reasonable worker from making or supporting a
charge of discrimination.” Id. The Court explicitly declined to apply White’s Title VII retaliation framework to the
Title VII discrimination case before it. It did not “liberalize” (or alter in any other way) the Title VII retaliation
standard.
4 White ‘overruled’ Robinson in the sense that it expanded Robinson. In White, the Third Circuit held that Robinson
was wrong to limit retaliation claims to employers’ workplace conduct only; it held that employers’ actions outside
the workplace can constitute retaliation against protected conduct, too but did not disturb Robinson’s underlying
analysis as to what constitutes workplace retaliation.

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(2006).5 In that case, the plaintiff engaged in protected activity by complaining about a
supervisor’s unwanted sexual advance, the supervisor was fired, and a constellation of
harassment followed: She was moved to an uncomfortable standing desk (which her newly fired
harasser had previously occupied), a coworker began to insult her and call her obscene names,

the same coworker purposely startled her and threatened her by driving carts rapidly toward her,
and, for 19 months, nothing was done. She argued that this flurry of harassment related to her
complaint constituted an adverse employment action for purposes of the Title VII retaliation
analysis.
The Third Circuit agreed. It disapproved the approach of the Fifth and Eighth Circuits,
which limited retaliatory adverse actions to “ultimate employment actions,” and therefore “d[id]
not view harassment to be within the statute’s reach.” Id. “[D]iscriminatory ridicule or abuse,”
the Third Circuit explained, “can so infect a workplace that it alters the terms or conditions of the
plaintiff’s employment” to the extent that it gives rise to a Title VII hostile-work-environment
claim; therefore, the Court reasoned, “[i]f harassment can alter the terms or conditions of

employment under § 2000e–2” (the provision that protects employees from hostile work
environments), “then Robinson teaches that the same is true under § 2000e–3,” the provision that
protects employees from retaliation. Id. at 449. “Put another way, § 2000e–3(a) prohibits a
quantum of discrimination coterminous with that prohibited by § 2000e–2(a).” Id. at 448.
Following Jensen, District courts have frequently found that repeated harassment can
constitute a retaliatory adverse action. See, e.g., Robinson v. SEPTA, 2024 WL 1936242, at *6

5 White overruled Jensen in the same way it overruled Robinson—it did not disturb Jensen’s logic regarding
retaliatory harassment.

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(E.D. Pa. May 1, 2024) (noting that Jensen recognizes retaliatory harassment as actionable under
Title VII and explaining that, as taught by White, “[i]n a retaliatory harassment claim,
harassment that well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination is sufficient to establish an adverse employment action”) (quotations

removed); Vollmar v. SPS Techs., LLC, 2016 WL 7034696, at *9 (E.D. Pa. Dec. 2, 2016)
(explaining that “the standard for an adverse action in retaliation claims differs” from the
standard in a pure discrimination claim, and that [i]n retaliation claims, if the action taken by the
[defendant] would tend to dissuade a reasonable employee from engaging in future protected
action, it would suffice to form the adverse action requirement.”) (quotations removed); Seybert
v. Int’l Grp., Inc., 2009 WL 722291, at *22 (E.D. Pa. Mar. 17, 2009) (noting that “retaliatory
harassment may constitute a ‘materially adverse’ action for retaliation claims” and holding that a
supervisor’s pattern of yelling at a plaintiff, berating her, giving her poor performance reviews,
and interfering with her work qualified as material adversity).
Hamilton has cited to record evidence showing a host of abusive interpersonal

interactions, intimidation, and interference with her daily work from which, under the
Robinson/Jensen standard, a reasonable jury could find a materially adverse retaliatory action.
iii. Causation
Norristown declares that Hamilton “cannot establish an adverse action that is causally
connected to her complaints,” but it makes no further argument and cites no record evidence
regarding causation. Accordingly, summary judgment on causation will not be granted. See
Parkell v. Danberg, 833 F.3d 313, 323 (3d Cir. 2016) (“The party seeking summary judgment
has the burden of demonstrating that the evidentiary record presents no genuine issue of material
fact.”) (quotations removed).

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For the reasons set forth above, summary judgment will be denied as to Plaintiff’s
retaliation claim.6
B. Count II: Race Discrimination - Disparate Treatment
Hamilton next claims that Norristown discriminated against her by treating her
differently because she is Black. In particular, she alleges that Norristown denied her a

promotion, and that the circumstances surrounding the denial give rise to an inference of
discrimination. Hamilton had sought promotion to the position of Risk Management and Quality
Assurance Coordinator shortly after she was initially hired. She was interviewed for the
position, along with several other candidates. She did not get the position; instead, Portnoy was
chosen.
Under Title VII, an employer may not “discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). As both
parties note, disparate-treatment claims involving indirect evidence of discrimination are
evaluated under the burden-shifting framework announced in McDonnell Douglas v. Green.

411 U.S. 792, 802 (1973).
Under that structure, the plaintiff must first establish a prima facie case of employment
discrimination, which requires showing: (1) that she was a member of a protected class; (2) that
she was qualified for her position; (3) that she suffered an adverse employment action; and,
(4) that adverse employment action occurred under circumstances that could give rise to an

6 In its Motion’s introduction, Norristown gestures briefly at an additional argument: “As to the retaliation claim,
[Norristown] took every remedial measure to ensure a positive work environment for [Hamilton].” It does not
elaborate or aver any evidence in support of this argument, so this argument need not be considered further.

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inference of intentional discrimination. Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008).
This test “‘is not onerous’ and poses ‘a burden easily met.’” Doe v. C.A.R.S. Protection Plus,
Inc., 527 F.3d 358, 365 (3d Cir. 2008) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981)).

Then, once a plaintiff has established the prima facie case, “the burden shifts to the
employer to provide a legitimate . . . reason for its conduct.” Carvalho-Grevious v. Del. State
Univ., 851 F.3d 249, 257 (3d Cir. 2017) (citation omitted). If the employer does so, the burden
shifts back to the employee, who must produce “evidence from which a factfinder could
reasonably infer that the employer’s proffered justification is merely a pretext for
discrimination.” Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013) (citations omitted).
To carry this burden, the plaintiff must offer “some evidence . . . from which a factfinder could
reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that
an invidious discriminatory reason was more likely than not a motivating or determinative cause
of the employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (citations

omitted).
i. Prima facie case
Norristown maintains that Hamilton “can only satisfy the first prong of the prima facie
case.” It argues that she was not qualified (the second prong), that she suffered no adverse
employment action (the third prong), and that there can be no inference of intentional
discrimination (the fourth prong).
a. Hamilton’s qualification
Norristown argues that Hamilton was unqualified for three reasons: first, that she sought
the position “three weeks after she started her employment” and “[s]uch a sudden rise in the

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ranks has not been seen since the likes of John Tyler,” who “assumed the role as our 10th
President of the United States 31 days after being sworn in as vice President due to the death of
President William Henry Harrison”; second, that “[w]hile a white applicant was indeed given the
position”—Portnoy—“that candidate’s interview went better, and she had more experience”; and

third, that “[h]er interview went poorly.” Although Norristown fashions all three of these
reasons as rebuttals to Hamilton’s prima facie case, only the first (that she was new to the job)
addresses qualification for the position. The latter two arguments (that Portnoy “had more
experience” than Hamilton and that Portnoy’s interview “went better” than Hamilton’s) are
really arguments that Norristown had a legitimate nondiscriminatory reason to choose Portnoy
over Hamilton for the promotion (the second step of the McDonnell Douglas framework) and
therefore will be addressed further below.
As to the first argument (Hamilton’s recent hiring and her comparability to John Tyler),
Norristown cites no caselaw supporting its apparent inference that a candidate’s recent hiring
into one role renders her unqualified for another. And in any case, the prima facie analysis only

“requires an inquiry into whether [the plaintiff] possessed the minimal objective qualifications
for the position.” Fowler v. AT&T, Inc., 19 F.4th 292, 303 (3d Cir. 2021). In an affidavit,
Hamilton states that she was asked to apply for the job by Renee Ostrander of Human Resources
“because I had the proper qualifications.” That statement is not contradicted by the Defendant.
An affidavit, “when based on personal knowledge and directed at a material issue, is sufficient to
defeat summary judgment,” even “where . . . the information is self-serving.” Paladino v.
Newsome, 885 F.3d 203, 209 (3d Cir. 2018). Hence, there is sufficient evidence in the record
before the Court from which a reasonable jury could conclude that Hamilton was qualified for
the position she did not get.

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b. Adverse employment action
Norristown next argues “there is no evidence of an adverse employment action.” It
contends that “in this Circuit . . . only actions such as a reduction in pay, termination, or
suspension without pay are sufficiently adverse” to qualify for a Title VII disparate-treatment
analysis. For support it cites Jones v. SEPTA, 796 F.3d 323 (3d Cir. 2015). In Jones the Third

Circuit held that a suspension with pay “does not constitute an adverse action in the [Title VII]
substantive discrimination context.” 796 F.3d at 325. But Jones is silent on whether a failure to
promote can constitute an adverse action. Norristown also cites Stewart v. Union Cty. Bd. of
Educ., 655 F. App’x. 151 (3d Cir. 2016), in which the Third Circuit held that “[e]mployment
actions such as lateral transfers and changes of title or reporting relationships have generally
been held not to constitute adverse employment actions.” Stewart, 655 F. App’x at 157. Apart
from it being a non-precedential opinion and that it does not address a failure to promote, any
weight that could be given to Stewart in this context has been lifted by the Supreme Court’s
finding in Muldrow that even an ostensibly “lateral” transfer (e.g., even one that does not result
in a change in “rank” or “pay”) can constitute an adverse employment action so long as some

“disadvantageous” change “in an employment term or condition” has resulted. Muldrow, 144
U.S. at 974.
More to the point, a failure to promote can constitute a Title VII disparate-treatment
adverse action. See Weston v. Pennsylvania, 251 F.3d 420, 430-31 (3d Cir. 2001) (“The
Supreme Court has defined a tangible, adverse employment action as a ‘significant change in
employment status, such as hiring, firing, failing to promote, reassignment, or a decision causing
a significant change in benefits’”) (quoting Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 749

14
(1998)) (emphasis added).7
It is undisputed that (at least as the parties have characterized Norristown’s decision not
to hire Hamilton for the position) Hamilton was denied a promotion. And as the denial of a
promotion can constitute a Title VII disparate-treatment adverse-employment action a jury could

find that Norristown’s failure to promote Hamilton was an adverse action.
c. Circumstances that give rise to an inference of discrimination
Norristown argues that “[t]here can be no inference of intentional discrimination by
[Hamilton]’s supervisors after she is placed under the supervision of [Kristen] Clement”
(emphasis added). It contends that Hamilton “was placed under the supervision of Kristen
Clement promptly after [she] complained of bullying and harassment,” and “[t]herefore, any
claims that she was discriminated against after that are baseless.”
But the specific adverse employment action Hamilton alleges—the denial of promotion—
occurred before Hamilton was placed under Clement’s supervision. Norristown makes no
argument about any inference of discrimination regarding events that occurred before Hamilton
was placed under Clement’s supervision. Accordingly, a genuine dispute exists as to the

allegedly discriminatory circumstances surrounding the promotion denial.
ii. Legitimate reason for the failure to promote
As explained above, once a plaintiff has established a prima facie case, the burden shifts
back to the defendant to provide a legitimate, nondiscriminatory reason for the adverse action.
Norristown argues first that Portnoy “had more experience,” and second, that Hamilton’s

7 Indeed, as Norristown notes, to constitute an adverse action, “an employer’s discrimination must be serious and
tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.” Storey v.
Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004). A promotion may affect all of these.

15
interview “went poorly” and Portnoy’s “went better.”
As to the first (Hamilton’s relative experience versus Portnoy’s), Norristown argues
simply that Portnoy had “more.” And there, a genuine dispute does exist: Hamilton argues (and
the record corroborates) that she “had a Masters in Human Services, and was working toward her

Ph.D. in Behavior Science” and that she “had over 18 years of experience in the human service
field, and 5 years’ experience as a supervisor,” while Portnoy “has a B.S. in Dietetics and
worked as a Clinical Dietician for [Norristown] for a year and nine months.” Norristown does
not explain specifically what sort of “experience” it argues Portnoy had more of, but the facts
Hamilton avers create a genuine dispute regarding whether she or Portnoy had more (at the very
least as measured by time in a potentially relevant field).
Norristown also argues that Hamilton’s interview “went poorly” and Portnoy’s “went
better.” It cites to the declaration of Kristen Clement, who attests to as much. Clement also
attests that Portnoy was the “fifth best” candidate interviewed, but Norristown “could not
provide the desired salary to the top four candidates who turned down the position.” (And,

therefore, Portnoy was the best candidate out of those willing to accept the salary.) Clement
further attests that Hamilton’s interview placed her “at the bottom of the applicant pool.” Poor
performance if clearly set forth by the Defendant through the introduction of admissible evidence
may serve as a legitimate reason for a failure to promote. Narin v. Lower Merion Sch. Dist.,
206 F.3d 323, 333 (3d Cir. 2000). However, particularly when there is nothing contemporaneous
to the interview in the record to support that reason, Thompson v. Bridgeton Bd. of Educ.,
613 Fed App’x 105, 108 (3d Cir. 2015); Carr v. New Jersey, 534 Fed App’x 149, 152-53 (3d Cir.
2013); McCann v. Astrue, 293 Fed App’x 848, 851 (3d Cir. 2008), there is a concern that “a
decision made principally on the basis of a subjective interview . . . is a ready tool for

16
discrimination,” Narin, 206 F.3d at 333. Here, where, the Plaintiff has already refuted the first
of Defendant’s proffered legitimate reasons, there is no need to evaluate its second one.
For the reasons set forth above, Norristown Motion for summary judgment on Hamilton’s
disparate-treatment claim will be denied.

C. Count III: Hostile Work Environment
As the parties agree, a hostile-work-environment plaintiff must establish: “(1) the
employee suffered intentional discrimination because of his/her [race], (2) the discrimination was
severe or pervasive, (3) the discrimination detrimentally affected the plaintiff, (4) the
discrimination would detrimentally affect a reasonable person in like circumstances, and (5) the
existence of respondeat superior liability.” Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 213
(3d Cir. 2017).8 Hamilton claims that the litany of allegedly harassing actions by Portnoy and
others were sufficiently discriminatory to constitute a hostile work environment.
Norristown’s arguments in response are unclear, but it seems to raise two. First, it cites
cases regarding the second prong (“severe or pervasive” harassment), apparently to imply that
Hamilton has not shown “the harassing behavior [was] sufficiently severe or pervasive to alter

the conditions of [her] employment.” Second, it argues directly that Hamilton cannot satisfy the
fifth prong (establishing Norristown’s liability for its employees’ actions) because Norristown
was not negligent in controlling Hamilton’s working conditions.

8 Moody was a sex-discrimination case, not a race-discrimination case, but “[h]ostile work environment claims based
on racial harassment are reviewed under the same standards as those based on sexual harassment.” Griffin v.
Harrisburg Prop. Servs., Inc., 421 Fed App’x 204, 207 (3d Cir. 2011) (citing AMTRAK v. Morgan, 536 U.S. 101,
116 n.10 (2002)).

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i. Severity/pervasiveness of the alleged harassment (Prong 2)
Norristown’s case citations imply an argument that Hamilton has not shown her
harassment was sufficiently severe or pervasive to satisfy the requirement for a Title VII hostile-
work-environment claim. First it quotes Vance v. Ball State Univ., 570 U.S. 421 (2013), in
which the Supreme Court explained that a Title VII hostile-work-environment plaintiff must

“show that the work environment was so pervaded by discrimination that the terms and
conditions of employment were altered.” 570 U.S. at 427. Next it quotes Faragher v. City of
Boca Raton, 524 U.S. 775 (1998); in that case, the Court held that “simple teasing, offhand
comments, and isolated incidents (unless extremely serious)” do not amount to a hostile work
environment. 524 U.S. at 778.
It is not clear whether Norristown means to characterize Hamilton’s allegations—which
include, among other things, the repeated use of the n-word in her workplace—as “simple
teasing, offhand comments, [or] isolated incidents,” because Norristown cites no facts and does
not develop the argument further.
The Third Circuit has clarified that a hostile work environment can result when

harassment is “severe or pervasive”—it need not be both. Castleberry v. STI Grp., 863 F.3d 259,
264 (3d Cir. 2017). The Court explained that the “severe-or-pervasive” analysis is “context-
specific” and “requires looking at the totality of the circumstances, including: ‘the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.’” Id. Here, the conduct Hamilton alleges touches on all those criteria. The
harassment she alleges:
1. Was frequent—Hamilton alleges Portnoy “[y]ell[ed] and berat[ed] her on a daily to

18
weekly basis” and micromanaged her for “the length of Portnoy’s supervision”;
2. Was severe—Hamilton alleges Portnoy used the n-word “multiple times” in the
workplace, to the extent that a white coworker complained)
3. Was physically threatening or humiliating—Hamilton alleges Portnoy “st[ood] over
her while she worked,” entered her office to “glare [at]” or otherwise “intimidate[]”
her, “stuck out a leg and tripped her” and on another occasion “pushed [Hamilton]
with her shoulder”); and,
4. Unreasonably interfered with her work performance—Hamilton alleges Portnoy
“[f]ail[ed] to provide her with proper training,” “st[ole] her work product and t[ook]
credit for it,” “[b]lam[ed] her for poor work that was not her work product,” “moved”
her office “without her consent or choice” and placed her “in an office with only
Black employees,” “sabotaged [her] work by not giving her important information
and/or documents,” and told her that she (Portnoy) “believed in making the
environment hostile so that employees would quit.”
Any use of the n-word in an employment setting is unquestionably severe. That epithet
“has been aptly described as the ‘paradigmatic slur’ toward African Americans and the ‘most
socially consequential insult.’” Boyle v. Evanchick, 2020 WL 1330712, at *6 (E.D. Pa. Mar. 19,
2020) (citing Randall Kennedy, N****r: The Strange Career of a Troublesome Word, at 22, 35
(Pantheon Books, 2002)). Indeed, in Castleberry, the Court determined that a single use of the
n-word “can suffice to state a claim” in some circumstances. 863 F.3d at 264. Here, the use of
that particular slur, taken with the rest of the actions surrounding it, provide more than enough to
generate a genuine dispute of material fact regarding the severity and pervasiveness of the
harassment Hamilton alleges.
ii. Norristown’s liability (Prong 5)
Next Norristown argues that it “cannot be held liable for creating or allowing a hostile
work environment” because it was not negligent and “did everything it could to investigate
claims and resolve issues.” First it cites Vance:
Under Title VII, an employer’s liability for such harassment may depend on the
status of the harasser. If the harassing employee is the victim’s co-worker, the
employer is liable only if it was negligent in controlling working conditions.

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570 at 424.
Norristown’s citation to Vance and ensuing negligence argument only makes
sense if Norristown means to imply that Portnoy was Hamilton’s “co-worker,” not her
“supervisor,” because Vance holds that “[i]f the harassing employee is the victim’s co-
worker, the employer is liable only if it was negligent in controlling working conditions.”
Id. But when the harasser is a supervisor, as Vance explains, “different rules apply.” Id.
In that case, “[i]f the supervisor’s harassment culminates in a tangible
employment action, the employer is strictly liable.” Id. But “if no tangible employment
action is taken, 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 unreasonably failed to take advantage of the
preventive or corrective opportunities that the employer provided.” Id.
The first question, therefore, is whether Portnoy (Hamilton’s primary alleged
harasser) was her “co-worker” or her “supervisor.” Although both parties repeatedly
refer to Portnoy as Hamilton’s “supervisor,” the Supreme Court has supplied a precise
definition and warned that “colloquial” references to a harasser as a “supervisor” are not
dispositive. Id. at 432. Under Vance, a supervisor is one whom a plaintiff’s employer
has “empowered . . . to take tangible employment actions against the victim, i.e., to effect

a ‘significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.’” Id.. at 431.
Norristown makes no argument to establish whether Portnoy was Hamilton’s

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“supervisor” or her “co-worker” under the Vance framework. But Hamilton addresses
the point directly: Portnoy, Hamilton argues, “had the ability to assign projects and move
[her] office, and controlled [her] ability to earn overtime and conducted her performance
reviews.” (And Norristown itself says Portnoy engaged in the “direct supervision” of

Hamilton.) At the very least Hamilton has shown that a genuine dispute exists regarding
whether Portnoy could “take tangible employment actions against” her, and therefore
regarding Portnoy’s status as her supervisor.9
Because Norristown has failed to establish that there is no genuine dispute of material
fact exists regarding the severity and pervasiveness of the alleged harassment, or regarding its
liability for the actions of its employees vis-à-vis Hamilton, summary judgment will be denied as
to Hamilton’s hostile-work-environment claim.
An appropriate order follows.
BY THE COURT:
/s/Wendy Beetlestone, J.

___________________________
WENDY BEETLESTONE, J.

9 Because Hamilton has established a genuine dispute exists regarding whether Portnoy was her supervisor,
Norristown’s argument regarding its negligence (which only applies if Portnoy is a co-worker, not a supervisor)
need not be addressed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10666934. Public record. Not legal advice.