Haines v. Pennsylvania Department of Transportation

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

PAUL HAINES,

Plaintiff, CIVIL ACTION NO. 1:21-CV-01601

v. (SAPORITO, J.)

PENNSYLVANIA DEPARTMENT

OF TRANSPORTATION, a

Commonwealth of Pennsylvania

agency, et al.,

Defendants.

MEMORANDUM

This civil action commenced on September 23, 2021, when the

plaintiff, Paul Haines, appearing through counsel, filed his original

complaint in this matter against his former employer, the Pennsylvania

Department of Transportation (“PennDOT”).

In his original complaint, Haines named three defendants: (1) his

former employer, PennDOT; (2) Ronald Gorko, a PennDOT foreman and

Haines’s immediate supervisor; and (3) Brian Small, a PennDOT senior

highway maintenance manager and indirect supervisor to Haines.1 In his

1 Gorko’s direct supervisor was non-party Steven Roberts, an

assistant county manager who reported directly to Small.

original complaint, Haines claimed that his former employer

discriminated against him on the basis of his sexual orientation and

retaliated against him for protected activities, in violation of Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e , and

the Pennsylvania Human Relations Act (the “PHRA”), 43 P.S. § 951

Haines also claimed that Gorko and Small should be held personally

liable under the PHRA for aiding and abetting PennDOT in this

discriminatory and retaliatory conduct, pursuant to 43 P.S. § 955(e).

Haines further claimed that he had been subjected to ongoing

harassment and a hostile work environment, culminating in his

constructive discharge, in violation of Title VII and the PHRA. Finally,

Haines claimed that these alleged discriminatory and retaliatory

practices had deprived him of his Fourteenth Amendment equal

protection rights, made actionable under 42 U.S.C. § 1983. Doc. 1.

On January 6, 2022, the plaintiff filed his first amended complaint.

The roster of named defendants remained the same in this first amended

complaint, but the plaintiff omitted all state-law PHRA claims, asserting

only federal Title VII claims in this amended pleading. Doc. 14.

On January 19, 2022, the plaintiff filed his second amended

complaint. The second amended complaint included some additional

factual allegations, but it asserted the same federal Title VII claims

against the same roster of named defendants. Doc. 16.

PennDOT, Small, and Gorko answered the second amended

complaint, and they now move for summary judgment.

On May 10, 2023, PennDOT and Small, jointly represented, filed a

motion for summary judgment, a brief in support, and their Local Rule

56.1 statement of material facts with supporting exhibits. Doc. 48; Doc.

49; Doc. 50. On May 30, 2023, the plaintiff filed his brief in opposition

and his response to the moving defendants’ statement of material facts

with counterstatement of material facts and supporting exhibits. Doc. 52;

Doc. 54; Doc. 55.

On May 12, 2023, Gorko filed a short motion to join PennDOT’s

motion for summary judgment, but neither a brief in support nor a

statement of material facts. Doc. 51. On May 30, 2023, the plaintiff filed

a brief in opposition to the motion for joinder, arguing that Gorko’s motion

should be denied as procedurally defective. Doc. 53. On June 20, 2023,

Gorko filed a paper captioned as a “supplemental brief” in support of his

motion for joinder, but which was docketed by Gorko’s counsel as a motion

for summary judgment. Doc. 56. Gorko did not file a separate statement

of material facts, supported by citations to the record, as required under

the federal and local civil rules.2 Fed. R. Civ. P. 56(c)(1); M.D. Pa.

56.1. On June 26, 2023, the plaintiff filed a brief in opposition, together

with a counterstatement of material facts. Doc. 57; Doc. 58.

All three motions—PennDOT’s motion for summary judgment,

Gorko’s motion to join PennDOT’s motion, and Gorko’s motion for

summary judgment—are fully briefed and ripe for decision.

I. LEGAL STANDARDS

A. Rule 12(b)(6) Dismissal

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a

defendant to move to dismiss for “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). The court may dismiss

claims under Rule 12(b)(6) under two circumstances:

(1) where the plaintiff has been “provided notice and an opportunity to

respond”; or (2) “where it is clear that the plaintiff cannot prevail and

that any amendment would be futile.” , 248 Fed.

2 Gorko’s supplemental brief includes a short section that may be

intended to be such a statement of material facts, set forth in numbered

paragraphs, but it does not include any record citations at all.

App’x 331, 333 (3d Cir. 2007) (per curiam).

“Under Rule 12(b)(6), a motion to dismiss may be granted only if,

accepting all well-pleaded allegations in the complaint as true and

viewing them in the light most favorable to the plaintiff, a court finds the

plaintiff’s claims lack facial plausibility.”

, 643 F.3d 77, 84 (3d Cir. 2011) (citing ,

550 U.S. 544, 555–56 (2007)). In deciding the motion, the Court may

consider the facts alleged on the face of the complaint, as well as

“documents incorporated into the complaint by reference, and matters of

which a court may take judicial notice.”

, 551 U.S. 308, 322 (2007). Although the Court must accept

the fact allegations in the complaint as true, it is not compelled to accept

“unsupported conclusions and unwarranted inferences, or a legal

conclusion couched as a factual allegation.” , 719 F.3d

160, 165 (3d Cir. 2013) (en banc) (quoting , 481 F.3d

187, 195 (3d Cir. 2007)). Nor is it required to credit factual allegations

contradicted by indisputably authentic documents on which the

complaint relies or matters of public record of which we may take judicial

notice. , 741 Fed. App’x 88, 91 n.3 (3d Cir.

2018); , 246 F. Supp. 3d 1058, 1075 (E.D.

Pa. 2017); , 568 F. Supp. 2d 579, 588–89 (W.D.

Pa. 2008).

B. Rule 56 Summary Judgment

Under Rule 56 of the Federal Rules of Civil Procedure, summary

judgment should be granted only if “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). A fact is “material” only if it might affect the outcome

of the case. , 477 U.S. 242, 248 (1986). A

dispute of material fact is “genuine” only if the evidence “is such that a

reasonable jury could return a verdict for the non-moving party.”

, 477 U.S. at 248. In deciding a summary judgment motion, all

inferences “should be drawn in the light most favorable to the non-

moving party, and where the non-moving party’s evidence contradicts the

movant’s, then the non-movant’s must be taken as true.”

, 24 F.3d 508, 512 (3d Cir. 1994).

The party seeking summary judgment “bears the initial

responsibility of informing the district court of the basis for its motion,”

and demonstrating the absence of a genuine dispute of material fact.

, 477 U.S. 317, 323 (1986). If the movant makes

such a showing, the non-movant must set forth specific facts, supported

by the record, demonstrating that “the evidence presents a sufficient

disagreement to require submission to the jury.” , 477 U.S. at

251–52.

In evaluating a motion for summary judgment, the Court must first

determine if the moving party has made a prima facie showing that it is

entitled to summary judgment. Fed. R. Civ. P. 56(a); , 477 U.S.

at 331. Only once that prima facie showing has been made does the

burden shift to the nonmoving party to demonstrate the existence of a

genuine dispute of material fact. Fed. R. Civ. P. 56(a); , 477

U.S. at 331.

Both parties may cite to “particular parts of materials in the record,

including depositions, documents, electronically stored information,

affidavits or declarations, stipulations (including those made for the

purposes of the motion only), admissions, interrogatory answers or other

materials.” Fed. R. Civ. P. 56(c)(1)(A). “An affidavit or declaration used to

support or oppose a motion must be made on personal knowledge, set out

facts that would be admissible in evidence, and show that the affiant or

declarant is competent to testify on the matters stated.” Fed. R. Civ. P.

56(c)(4). “Although evidence may be considered in a which is

inadmissible at trial, the of the evidence must be capable of

admission at trial.” , 994 F. Supp. 2d 593, 599

(M.D. Pa. 2014); , 192 F.3d

378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary

judgment, to consider evidence that is not admissible at trial).

II. DISCUSSION

In his five-count second amended complaint, the plaintiff has

asserted the following employment-related claims: (1) the defendants

discriminated against Haines on the basis of his sexual orientation and

retaliated against him for protected activities, in violation of Title VII, as

set forth in the First, Second, and Fourth Counts of the second amended

complaint; and (2) Haines was subjected to ongoing harassment and a

hostile work environment, culminating in his constructive discharge, in

violation of Title VII, and PennDOT was vicariously liable for such

harassment because one of his alleged harassers was his immediate

supervisor, Gorko, as set forth in the Third and Fifth Counts of the second

amended complaint.

A. Personal-Capacity Claims Against Individual Defendants

The Third and Fourth Counts of the second amended complaint

assert Title VII hostile work environment and retaliation claims against

the individual defendants, Small and Gorko, in their personal capacities.3

But it is well established that individual employees may not be held

liable in their personal capacities under Title VII.

, 100 F.3d 1061, 1077–78 (3d Cir. 1996) (en

banc). In his original complaint, the plaintiff asserted state-law PHRA

claims as well, against defendants. , Compl. ¶¶ 61–63

(expressly asserting a PHRA aiding-and-abetting claim against Small

and Gorko), Doc. 1. , 91 F.3d 542, 552–

53 (3d Cir. 1996) (recognizing that, unlike Title VII, the PHRA allows for

individual liability with respect to aiding-and-abetting claims against

supervisory employees) (citing 43 P.S. § 955(e)). But those claims have

been omitted from his amended pleadings, presumably because, as a

3 Based on its label in the second amended complaint, the plaintiff’s

Fifth Count, for “vicarious liability,” is putatively brought against these

individual defendants as well, but based on the substance of the second

amended complaint’s perfunctory recitation of this claim, Second Am.

Compl. ¶ 74, Doc. 16, this vicarious liability claim appears to be directed

solely at the plaintiff’s former employer, PennDOT. Thus, we have

disregarded the pleading’s unsupported “all defendants” designation.

state agency, PennDOT is immune from PHRA claims asserted in federal

court, , 216 F. Supp. 2d 446,

454 (E.D. Pa. 2002), and a § 955(e) aiding-and-abetting claim against an

individual supervisory defendant is not cognizable in the absence of a

predicate PHRA violation by the employer,

, 918 F. Supp. 2d 344, 357 n.5 (E.D. Pa. 2013). The plaintiff’s

second amended complaint asserts personal-capacity claims against

Small and Gorko under Title VII only. Thus, we find that the plaintiff’s

Title VII hostile work environment and retaliation claims against the

individual defendants in their personal capacities are patently meritless,

that it is clear that the plaintiff cannot prevail against them on these

claims, and that any amendment would be futile.

Accordingly, the plaintiff’s claims against the individual

defendants, Small and Gorko, in their personal capacities, will be

dismissed for failure to state a claim upon which relief can be

granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure, and this dismissal will be without leave to amend as any such

amendment would be futile. As a consequence, we will also deny Gorko’s

motions for joinder and for summary judgment as moot, and we will deny

PennDOT’s motion for summary judgment as moot to the extent it seeks

summary judgment on behalf of Small in his personal capacity.

B. Title VII Claims Against Employer

The First, Second, and Fourth Counts of the second amended

complaint assert Title VII discrimination and retaliation claims against

PennDOT arising out of discrete acts of discrimination or retaliation

experienced by Haines. The Third and Fifth Counts of the second

amended complaint assert Title VII hostile work environment claims

against PennDOT arising out of a pattern of harassment of Haines on the

basis of his sexual orientation by his immediate supervisor, Gorko, and

other coworkers, culminating in Haines’s constructive discharge.

PennDOT has moved for summary judgment on the grounds that

Haines failed to properly exhaust administrative remedies with respect

to certain claims and failed to establish a prima facie case with respect

to the remainder of his discrimination, retaliation, and hostile work

environment claims.

We analyze the plaintiff’s discrimination and retaliation claims

under the familiar burden-shifting framework set forth in

, 411 U.S. 792 (1973).

, 484 Fed. App’x 710, 712 (3d Cir. 2012) (discrimination);

, 461 F.3d 331, 340–41 (3d Cir. 2006) (retaliation). As

summarized by the Supreme Court of the United States:

Under , a plaintiff must first

establish a prima face case of discrimination. The

burden then shifts to the employer to articulate a

legitimate, nondiscriminatory reason for its

employment action. If the employer meets this burden,

the presumption of intentional discrimination

disappears, but the plaintiff can still prove disparate

treatment by, for instance, offering evidence

demonstrating that the employer’s explanation is

pretextual.

, 540 U.S. 44, 49 n.3 (2003) (citations omitted).

Paul Haines was hired by PennDOT in late December 2015 or early

4 In compliance with Local Rule 56.1, PennDOT’s motion for

summary judgment is “accompanied by a separate, short and concise

statement of the material facts, in numbered paragraphs, as to which the

moving party contends there is no genuine issue to be tried.” Doc. 50.

M.D. Pa. L.R. 56.1. Moreover, each factual statement presented

by PennDOT in support of its motion for summary judgment “include[s]

references to the parts of the record that support the statements.” ;

Fed. R. Civ. P. 56(c)(1).

A party opposing summary judgment is likewise required by the

local rules to file “a separate, short and concise statement of the material

facts, responding to the numbered paragraphs” in the movant’s

statement of material facts, which must similarly “include references to

the parts of the record that support the statements.” M.D. Pa. L.R. 56.1.

January 2016 to work as a temporary Transportation Equipment

Operator A (“TEO A”). Haines was rehired for the two subsequent winter

seasons, 2016/2017 and 2017/2018, in the same temporary capacity.

Following the 2017/2018 winter season, Haines was hired as a permanent

TEO A. In August 2020, Haines was promoted to Transportation

Equipment Operator B (“TEO B”). At times, Haines also served as an

acting foreman, a voluntary position that often served as an opportunity

Here, the non-moving plaintiff has filed the requisite responsive

statement of material facts, responding to the numbered paragraphs of

the moving defendant’s statement of material facts. Doc. 54, at 1–6. But

in addition to his responsive statement of material facts, the plaintiff has

also included a separate “counterstatement of material facts” that does

not respond to PennDOT’s statement of material facts. at 6–13. The

local rules do not permit a non-moving party to file an

statement of material facts that does not respond to the movant’s

statement. , 353 F. Supp. 3d 342, 347 n.1 (M.D. Pa.

2018) (disregarding non-movant’s additional statement of facts for non-

compliance with Local Rule 56.1); , 131 F. Supp. 3d 321,

322 n.1 (M.D. Pa. 2015) (declining to consider separate counter-

statement of facts that was non-responsive to the movant’s statement

because it was “neither contemplated nor permitted by the Local Rules”);

, 793 Fed. App’x 84, 87 (3d

Cir. 2019) (upholding district court decision to strike non-movant’s non-

responsive counter-statement of facts under Local Rule 56.1);

, 909 F.3d 64, 613–14 (3d Cir. 2018) (upholding district

court decision to strike non-responsive paragraphs from non-movant’s

answer to movant’s statement of material facts under Local Rule 56.1).

Thus, we have simply disregarded the plaintiff’s non-responsive

additional “counterstatement of material facts.”

for a TEO B to show management how he would handle being a foreman.

TEOs generally operate commercial trucks and loaders, and they

handle a variety of motorized and non-motorized tools for highway and

bridge maintenance. TEOs are union positions covered by a collective

bargaining agreement between AFSCME and PennDOT. Under that

collective bargaining agreement, every six months, TEOs would “bid” for

worksite locations (“stockpiles”) and work shifts, with selections based on

seniority. On multiple occasions, Haines selected the Center Moreland

stockpile in Wyoming County, Pennsylvania, whose foreman/supervisor

was Ronald Gorko.

On February 3, 2019, Haines reported to Steven Roberts, the

assistant county manager, that he had been texted a “meme” from a

coworker in which Haines’s face had been superimposed on an image

implying that Haines was unqualified to interview for an open foreman

position. Haines reported that a menstrual pad had been left on a seat

where he normally sat. Roberts reported Haines’s complaint to his

supervisor, Brian Small, the county manager, who in turn arranged a

meeting between Haines, Roberts, Small, and a human resources (“HR”)

representative, Carl Kmiec. During the meeting, Haines did not identify

who had sent the meme or who had placed the menstrual pad on the seat

where Haines normally sat. On February 4, 2019, Small sent out an email

to all Wyoming County foremen advising that inappropriate workplace

behavior would not be tolerated.

In August 2019, while Haines was on a light duty restriction due to

a work-related injury, he worked in Roberts’s office. In conversations with

Roberts during that period of approximately one month, Haines told

Roberts that Gorko would constantly call Haines “a little bitch” and say

he was “acting like a girl” about being injured. Roberts testified at

deposition that he found nothing actionable in these conversations that

he could take to HR.

On September 14, 2020, Haines was assigned to work with fellow

TEOs Chris Ritz and Gary Porasky to perform “cold patching” on the

highway. On September 15, 2020, Porasky reported that Haines, who was

the driver of their PennDOT truck the previous day, had driven

erratically and performed “burnouts” that resulted in damage to the

truck.5 Porasky indicated that he did not want to ride in the truck with

5 The plaintiff has admitted this factual statement in part and

disputed it in part, but without articulating which portion is admitted

Haines anymore.6 Witness statements were collected from Porasky, Ritz,

and Haines, and Roberts investigated the scene where the incident

occurred and drafted a full report.7 On September 16, 2020, Haines,

Porasky, and Ritz were all provided with Pre-Disciplinary Conference

(“PDC”) notices in accordance with PennDOT safety and disciplinary

procedures.

The next day, September 17, 2020, Haines asked to leave work

early. His foreman, Gorko, called the assistant county manager, Roberts,

to ask for approval. On the call, Haines indicated that he intended to see

his lawyer. Roberts approved Haines’s request for leave.8

and which portion is disputed, and without citation to any evidence

whatsoever in support of the disputed portion, whatever it may be. Thus,

the defendant’s factual statement has been deemed admitted in full.

6 note 5.

7 note 5.

8 The plaintiff has responded to the defendant’s fact statement

“denied as stated.” In his response, the plaintiff has admitted that he

requested to leave work early on September 17, 2020, that Gorko called

Roberts for approval, and that Roberts approved the request to leave

work early. The plaintiff contends, however, that Haines did not discuss

contacting his lawyer at that time. Pl. Resp. to Statement of Facts

¶ 23 (“There was nothing further discussed on that call.”), Doc. 54. In

support, the plaintiff has cited Roberts’s deposition testimony. But in his

testimony, Roberts specifically stated: “Paul [Haines] then said he

wanted to go see his lawyer. . . . I told [Gorko and Haines] that if he

wanted to leave, just let him go.” Roberts Dep. 67 ll.9–12, Doc. 52-4. The

Gorko then called the county manager, Small, to report that Haines

was “very upset” about the PDC notice. Gorko advised Small that Haines

had been seeing a psychiatrist, was mentally unstable, and had no

problem hurting someone.9 Small instructed Gorko to draft an email

summary of his concerns. Then Small contacted HR personnel, Kmiec

and Jenna Davis, and the three of them together contacted Susan

Moravetz and another staffer at the State Employee Assistance Program

(“SEAP”).10 Based on the available information and SEAP’s

recommendation, Small, Kmiec, and Davis contacted local police to

perform a welfare check on Haines.11 Based on their reports to the 9-1-1

dispatcher that Haines had “made threats that he was going to beat his

family” and that he might “possibly” be violent if police showed up, the

local police officer who was dispatched for a welfare check or domestic

plaintiff has cited no other evidence to dispute the defendant’s factual

statement on this point. Thus, it has been deemed admitted.

9 In his response to the defendant’s statements of facts, the plaintiff

has expressly admitted this fact as stated by the defendant. His

admission, however, is followed by an extensive statement in which he

purports to dispute facts neither stated nor implied by the defendant’s

factual statement. This additional commentary is nonresponsive and

argumentative, and thus we have disregarded it.

10 note 9.

11 Small initiated the call to 9-1-1, but then patched in Kmiec and

Davis by conference call.

dispute considered it serious enough to call for backup when deploying.12

Upon arriving at the Haines home, however, he found nothing unusual.

The backup request to a neighboring municipal police force was cancelled

before units arrived. The responding officer’s supervisor, the township

police chief, joined him in any event. The responding officer called Small

that afternoon to report that he and the township police chief conducted

a welfare check at the Haines residence, spoke to everyone there, and

found no problems or concerns.

Later that same day, Haines sent an email referencing a “long list”

of events that had made him feel uncomfortable.13 On September 23,

2020, Haines sent a longer email to HR that included the full list of

alleged incidents of harassment to which he had previously referenced.14

12 The plaintiff has submitted an audio recording of the 9-1-1 call as

an exhibit in opposition to summary judgment. Pl. Ex. G, Doc. 55. A

transcript of the conversation is also transcribed as part of the deposition

of Brian Small, where the recording was played and taken down by the

stenographer. Small Dep. 49–55, Doc. 52-4.

13 The recipient of this September 17, 2020, email is unclear from

the record. The defendant’s statement of material facts describes it in

cursory fashion, and the plaintiff has admitted the factual statement. A

copy of the email does not appear to have been submitted into the record,

but the nature of this brief email is undisputed.

14 A copy of this September 23, 2020, email has been submitted by

the plaintiff as an exhibit in opposition to summary judgment. It was

These incidents included: (1) on June 9, 2018, “ride me hard” was written

in the dirt on the tailgate of Haines’s personal truck while parked at the

Center Moreland stockpile;15 (2) on November 28, 2018, using his state-

issued work cellphone, Gorko called Haines’s personal cellphone and left

a voicemail message that stated only “pee pee toucher”;16 (3) on February

3, 2019, Joe Blat, a coworker of Haines also supervised by Gorko, created

and circulated a meme implying that Haines was unqualified and unfit

to be interviewed for an open foreman position;17 (4) on February 4, 2019,

a menstrual pad was left on a seat where Haines typically sat, and

Haines reported that Gorko had admitted to being responsible for it;18

addressed to Davis, with copies sent to Kmiec, Small, Roberts, and other

PennDOT recipients. Pl. Ex. H, Doc. 52-4.

15 The plaintiff submitted a photograph of this message written on

the tailgate of his truck as an attachment to this email and as an exhibit

in opposition to summary judgment. Pl. Ex. K, Doc. 52-4, at 100.

16 The plaintiff submitted an audio recording of this voicemail

message as an attachment to this email and as an exhibit in opposition

to summary judgment. Pl. Ex. I, Doc. 55. A transcript of this very brief

voicemail is also transcribed as part of the deposition of Brian Small,

where the recording was played and taken down by the stenographer.

Small Dep. 70, Doc. 52-4.

17 The plaintiff submitted a photograph of this meme as an

attachment to this email and as an exhibit in opposition to summary

judgment. Pl. Ex. J, Doc. 52-4, at 98.

18 The plaintiff submitted photographs of the menstrual pad on the

seat as attachments to this email and as an exhibit in opposition to

summary judgment. Pl. Ex. L, Doc. 52-4, at 102–03.

(5) on July 30, 2020, Gorko berated Haines in front of his work crew for

dropping radios; (6) on August 20, 2020, Gorko reported to the assistant

county manager, Roberts, that Haines was working an unauthorized

second job besides PennDOT, and Gorko later told Haines that Roberts

told Gorko to watch Haines’s house for evidence that Haines was doing

so; and (7) the events of September 17, 2020, in which Haines received a

PDC notice, left work early, and police were sent to his house by

PennDOT staff for a welfare check and to investigate a potential domestic

dispute.

The parties dispute whether Haines had previously reported these

incidents to his superiors at PennDOT. Prior to Haines’s September 17

and 23, 2020, email messages, he had never reported any of the alleged

harassment set forth in the preceding paragraph to HR or to his indirect

supervisors, except for the February 3, 2019, incidents that he reported

to Roberts, and he had never before identified Blat or Gorko as the source

of the meme and menstrual pad, respectively.19 Both Haines’s sexual

19 In support of this factual statement, the defendant cites the

Haines email itself. We further note that Small testified at his deposition

that, prior to Haines’s September 2020 email messages, he was not aware

of Haines’s sexual orientation or the alleged harassment. Small Dep. 65–

orientation and the alleged discriminatory, retaliatory, or harassing

66, Doc. 52-4. Roberts similarly testified at his own deposition that was

even then unaware of Haines’s sexual orientation, and, other than the

February 3, 2019, meme and menstrual pad incidents, the alleged

harassment was never brought to his attention either. Roberts Dep. 20–

21, 27, 119, 120–21, 123–24, Doc. 52-4. Fed. R. Civ. P.

56(c)(3) (“The court need consider only the cited materials, but it may

consider other materials in the record.”). The plaintiff has responded to

this factual statement: “Denied as stated. Strict proof demanded.” Pl.

Resp. to Statement of Facts ¶ 30, Doc. 54. The plaintiff, however, has

failed to cite to any evidence in support of this bare denial. Under Rule

56 of the Federal Rules of Civil Procedure,

[a] party asserting that a fact . . . is genuinely

disputed must support that assertion by:

(A) citing to particular parts of materials in

the record, including depositions, documents,

electronically stored information, affidavits or

declarations, stipulations (including those made

for purposes of the motion only), admissions,

interrogatory answers, or other materials; or

(B) showing that the materials cited [by the

movant] do not establish the absence or presence

of a genuine dispute, or that an adverse party

cannot produce admissible evidence to support the

fact.

Fed. R. Civ. P. 56(c)(1). Our local civil rules similarly provide that

“[s]tatements of material facts . . . in opposition to[] a motion [for

summary judgment] shall include references to the parts of the record

that support the statements.” M.D. Pa. L.R. 56.1. Thus, in the absence

of citation to evidence to dispute the defendant’s supported factual

statement on this point, the defendant’s factual statement has been

deemed admitted. Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly

support an assertion of fact or fails to properly address another party’s

assertion of fact as required by Rule 56(c), the court may . . . consider the

fact undisputed for purposes of the motion . . . .”).

conduct was contemporaneously known to Haines’s direct supervisor,

Gorko, who is alleged to be Haines’s primary harasser.

Following Haines’s September 2020 email messages, PennDOT

immediately investigated his allegations of sexual harassment by

gathering documentation and interviewing witnesses, including Gorko,

Roberts, Blat, and Haines. On October 23, 2020, PennDOT and Gorko’s

union entered into a pre-grievance settlement in which Gorko served the

equivalent of a one-day suspension following PennDOT’s finding that

Gorko’s voicemail message to Haines violated policy.

On November 3, 2020, Haines dual-filed a charge of discrimination,

#530-2021-00519, with the U.S. Equal Employment Opportunity

Commission (“EEOC”) and the Pennsylvania Human Relations

Commission (“PHRC”). Pl. Ex. A, Doc. 52-4.

In the meantime, Haines had requested and was granted FMLA

leave through December 3, 2020. He was simultaneously approved for

extended leave without pay (“LWOP”) through September 1, 2021.

Haines exhausted his FMLA leave and began LWOP, but Haines never

responded to PennDOT’s status requests even after LWOP expired on

September 1, 2021. By letter dated November 4, 2021, PennDOT notified

Haines that his employment was terminated effective close of business

on November 5, 2021, for failure to respond to previous PennDOT

requests for a return-to-work date.20 Haines, however, contends that he

had already been constructively discharged due to a hostile work

environment.

In addition to the foregoing timeline of events, the defendant

contends that Haines is unable to adduce evidence that PennDOT was

aware of Haines’s sexual orientation. Although Small and Roberts

testified at their respective depositions that they were unaware of

Haines’s sexual orientation at the time of the foregoing events,21 in

response to this contention by PennDOT, Haines has cited his own

deposition testimony, in which he reported having informed Gorko and

his coworkers of his sexual orientation in early 2018.22 In addition,

Haines has pointed to deposition testimony in which he stated that Gorko

20 The defendant’s factual statement describes the letter as being

dated November 5, 2021, but a copy of the letter itself has been submitted

as an exhibit, and it is clearly dated November 4, 2021. Def. Ex. 19,

Doc. 50-19.

21 , Small Dep. 16, 65–66, 72–73, Doc. 52-4; Roberts Dep.

20–21, 27, Doc. 52-4.

22 , Haines Dep. 39–41, Doc. 52-4.

had routinely called him “gay” and a “fag.”23

Title VII claims premised on discrete acts of discrimination or

retaliation, which are individually actionable, “must be raised within the

applicable limitations period or they will not support a lawsuit.”

, 440 F.3d 125, 127 (3d Cir. 2006) (citing

, 536 U.S. 101, 113 (2002)). “Before

bringing a lawsuit under Title VII, . . . a plaintiff must exhaust his

administrative remedies by filing a charge of discrimination with the

EEOC within 300 days of the alleged unlawful employment practice.”

, 669 F. Supp. 3d 419, 431 (E.D. Pa. 2023).

Here, the plaintiff filed a charge of discrimination with the EEOC

on Tuesday, November 3, 2020. Therefore, only discrete acts that occurred

within 300 days before that date are actionable. , 536 U.S. at

114 (holding that only discrete acts that took place within the 300-day

timely filing period are actionable). All prior discrete discriminatory or

retaliatory acts—i.e., those that occurred before Wednesday, January 8,

23 The remainder of the defendant’s statement of material facts

consists of legal conclusions rather than factual statements, offered

without any supporting citations to record materials.

2020—are untimely filed and no longer actionable.24 at 115.

Thus, Haines’s discrimination and retaliation claims must be

dismissed for failure to timely exhaust administrative remedies with

respect to the following four discrete acts: (1) a June 2018 incident in

which “ride me hard” was written on the tailgate of his personal truck;

(2) a November 2018 incident in which Gorko left a voicemail on Haines’s

personal cellphone that stated only “pee pee toucher”; (3) a February 2019

incident in which a coworker circulated a meme about Haines being

unqualified for an open foreman position; and (4) a February 2019

incident in which Gorko allegedly left a menstrual pad on a seat where

24 The plaintiff suggests that the limitation period for these prior

discrete acts may be tolled under the continuing violations doctrine, an

equitable doctrine which provides that when a defendant’s conduct is part

of a continuing practice, an action is timely so long as the last act in the

continuing practice falls within the limitations period. But the continuing

violations doctrine is not applicable to Title VII claims based on discrete

discriminatory or retaliatory acts. , 536 U.S. at 114;

, 440 F.3d at 127;

, 170 F. Supp. 3d 801, 825 (W.D. Pa. 2016) (“The Third Circuit

has interpreted the holding in as ‘a bright-line distinction

between discrete acts, which are individually actionable, and acts which

are not individually actionable but may be aggregated to make out a

hostile work environment claim.’ Discrete acts ‘must be raised within the

applicable limitations period or they will not support a lawsuit,’ while a

hostile work environment claim ‘can occur at any time so long as they are

linked in a pattern of actions which continues into the applicable

limitations period.’”) (citations omitted).

Haines typically sat.

Haines’s discrimination and retaliation claims regarding the

following three discrete acts, however, were timely filed: (1) a July 2020

incident in which Gorko berated Haines in front of his coworkers for

dropping radios; (2) an August 2020 incident in which Gorko reported to

Roberts that Haines was working an unauthorized second job, and

Roberts allegedly told Gorko to watch Haines’s house for evidence that

Haines was doing so; and (3) the events of September 17, 2020, in which

Haines received a PDC notice, left work early, and police were sent to his

house by PennDOT staff.

The plaintiff’s hostile work environment claims, moreover, were

timely commenced because at least one act contributing toward the

hostile work environment claim occurred within the filing period.

, 536 U.S. at 116–17.

Accordingly, we find that, based on the record before us, viewed in

the light most favorable to the non-moving plaintiff, there exists no

genuine dispute of material fact, and the defendant, PennDOT, is entitled

to judgment as a matter of law in its favor with respect to the plaintiff’s

Title VII claims of discrimination and retaliation arising out of discrete

acts that occurred prior to January 8, 2020.

To establish a prima face case of retaliation under Title VII, a

plaintiff must establish that: “(1) she engaged in activity protected by

Title VII; (2) the employer took an adverse employment action against

her; and (3) there was a causal connection between her participation in

the protected activity and the adverse employment action.” , 461

F.3d at 340–41.

It is undisputed that Haines’s September 17, 2020, and September

23, 2020, email messages to PennDOT HR staff complaining about

incidents of harassment he had experienced constituted protected

activity under Title VII, as did his November 3, 2020, EEOC charge. But

aside from his ultimate termination in November 2021, all of the

allegedly retaliatory actions identified by the plaintiff these

protected activities, including those that occurred earlier on the same day

when Haines sent his first email to HR. Thus, while these prior incidents

might contribute to Haines’s hostile work environment claim, there is

simply no causal connection where an allegedly retaliatory action

the protected activity upon which a Title VII retaliation claim

is based. , 418 Fed. App’x 68, 72 (3d Cir. 2011) (per

curiam); , 120 F.3d at 1301; , No. 3:22-CV-

00977, 2025 WL 565832, at *10 (M.D. Pa. Feb. 20, 2025), , No.

25-1521 (3d Cir. Mar. 20, 2025); , No. 15-

0916, 2016 WL 4430650, at *21 (E.D. Pa. Aug. 22, 2016);

, 90 F. Supp. 2d 643, 653 n.20 (E.D. Pa. 2000).

The plaintiff points to his February 2019 complaint to Roberts

about the meme and menstrual pad incidents and his August 2019

conversations with Roberts in which he complained about Gorko calling

him “a little bitch” and telling him he was “acting like a girl” about being

injured. But the earliest allegedly retaliatory actions identified by the

plaintiff did not occur until July 2020,25 well more than a year after

Haines complained about the meme and menstrual pad incidents and

nearly a year after he complained about Gorko calling him “a little bitch”

and saying he was “acting like a girl.” In the absence of any other

evidence of an intervening pattern of antagonism, the temporal proximity

between these events is insufficient to support an inference of retaliatory

25 The plaintiff alleges that, in July 2020, Gorko assigned him to

work as a flagger and yelled at him for dropping radios.

animus. , 783 Fed. App’x 229, 233–34 (3d

Cir. 2019) (termination two months after participation in investigation

was insufficient to suggest a causal relationship on its own);

, 587 Fed. App’x 731, 735 (3d Cir. 2014) (per curiam)

(holding that, in the absence of any other evidence suggesting a causal

link, the temporal proximity between a plaintiff’s termination and his

filing of an EEOC charge more than two months earlier was “not so close

as to be unduly suggestive” of a causal connection);

, 380 F.3d 751, 759–60 (3d Cir. 2004) (explaining

that a two-month gap is insufficient to support an inference of causal

connection between protected activity and termination).

As for his ultimate termination, a similarly extended gap of more

than a year exists between the undisputed protected activity—Haines’s

September 2020 email complaints to HR and his November 2020 EEOC

charge—and his termination in November 2021. Thus, in the absence of

any other evidence of an intervening pattern of antagonism, the temporal

proximity between these events is similarly insufficient to support an

inference of retaliatory animus. , 783 Fed. App’x at 233–34;

, 587 Fed. App’x at 735; , 380 F.3d at 759–60.

On this point, the plaintiff argues that he was constructively

discharged when he left work on September 17, 2020, went on authorized

FMLA leave and LWOP status, and never returned to work. Based on

this, the plaintiff argues that the temporal proximity of these protected

activities and his constructive discharge is unduly suggestive of a causal

relationship. But while his alleged constructive discharge did occur close

in time to his initial email complaint to HR, as with the other putative

retaliatory actions addressed above, the plaintiff’s alleged constructive

discharge commenced before noon on September 17, 2020, and was based

on intolerable employment conditions that occurred over a period of

months or years and preceded his departure, with the relevant protected

activities occurring only his constructive discharge. Thus, as we

have already noted above, there is simply no causal connection where the

allegedly retaliatory action the protected activity upon which a

Title VII retaliation claim is based. , 418 Fed. App’x at 72;

, 120 F.3d at 1301; , 2025 WL 565832, at *10; ,

2016 WL 4430650, at *21; , 90 F. Supp. 2d at 653 n.20.

Accordingly, we find that, based on the record before us, viewed in

the light most favorable to the non-moving plaintiff, there exists no

genuine dispute of material fact, and the defendant, PennDOT, is entitled

to judgment as a matter of law in its favor with respect to the remainder

of the plaintiff’s Title VII retaliation claims.

To establish a prima face case of discrimination under Title VII, a

plaintiff must establish that: “(1) s/he is a member of a protected class;

(2) s/he was qualified for the position s/he sought to attain or retain;

(3) s/he suffered an adverse employment action; and (4) the action

occurred under circumstances that could give rise to an inference of

intentional discrimination.” , 541 F.3d 205, 214 (3d Cir.

2008); , 399 F. Supp. 3d 258,

276 (M.D. Pa. 2019). “The central focus of the inquiry in a case such as

this is always whether the employer is treating ‘some people less

favorably than others because of their race, color, religion, sex, or

national origin.’” , 438 U.S. 567, 577 (1978);

, 399 F. Supp. 3d at 276 (quoting , 438 U.S. at 577).

Therefore, a plaintiff must “present sufficient evidence to allow a fact

finder to conclude that the employer is treating some people less

favorably than others based on a trait that is protected under Title VII.”

, 190 F.3d 151, 161 (3d Cir. 1999); , 399

F. Supp. 3d at 276 (quoting , 190 F.3d at 161).

In addition to his ultimate termination, Haines has identified three

timely filed discrete acts of discrimination: (1) a July 2020 incident in

which Gorko berated Haines in front of his coworkers for dropping radios;

(2) an August 2020 incident in which Gorko reported to Roberts that

Haines was working an unauthorized second job, and Roberts allegedly

told Gorko to watch Haines’s house for evidence that Haines was doing

so; and (3) the events of September 17, 2020, in which Haines received a

PDC notice, left work early, and police were sent to his house by

PennDOT staff.

The July 2020 incident in which Gorko berated Haines in front of

his coworkers does not constitute an adverse employment action. “An

adverse employment action may be a discharge or a failure to hire, or any

action that alters an employee’s compensation, terms, conditions, or

privileges of employment.” , 212 Fed. App’x 136, 140 (3d

Cir. 2007) (per curiam). Allegations of “unsubstantiated oral reprimands”

or “unnecessary derogatory comments” do not rise to the level of the

adverse employment action required for a discrimination claim.

, 120 F.3d 1286, 1301 (3d Cir. 1997),

, ,

548 U.S. 53 (2006); , No. 1:21-CV-1528, 2023 WL

2616096, at *3 (M.D. Pa. Mar. 23, 2023) (finding verbal reprimands did

not rise to the level of an adverse employment action);

, No. 15-5352, 2015 WL 7776896, at *2 (D.N.J. Dec. 2, 2015)

(finding mere humiliation suffered in meeting with supervisor and

coworkers did not amount to an adverse employment action);

, No. 13-1390, 2015 WL 4571554, at *6 (D. Del. July

29, 2015) (finding circulation of email complaint about the plaintiff to his

subordinates, causing embarrassment and humiliation, did not

constitute adverse employment action);

, No. 09-1182, 2011 WL 841374, at *9 (W.D.

Pa. Mar. 8, 2011) (finding no adverse employment action where plaintiff

was berated before coworkers on minor or insignificant grounds and

burdened with harsh work assignments); , No.

07-87, 2009 WL 2996507, at *7 (D.V.I. Sept. 11, 2009) (finding a plaintiff’s

“feelings of humiliation do not establish a tangible adverse employment

action).

The August 2020 incident in which Gorko investigated or

threatened an investigation of Haines for working an unauthorized

second job likewise does not constitute an adverse employment action.

There is no evidence in the record before us to suggest that this

investigation resulted in any actual disciplinary action or any material

change to Haines’s compensation, terms, conditions, or privileges of

employment. , 212 Fed. App’x at 140. Without such a material

change to the terms or conditions of his employment, mere investigation,

or the threat of investigation, does not constitute an adverse employment

action. , 283 F. Supp. 3d 309, 324

n.4 (E.D. Pa. 2017) (“An investigation does not qualify as an adverse

employment action when it does not result in discipline or reduced

responsibilities.”); , 94 F. Supp. 3d 704, 714 (E.D. Pa.

2015) (“Investigations, separate from any negative consequences that

may result from them, do not generally constitute adverse employment

actions.”); , 683 Fed. App’x 151, 159–60 (3d

Cir. 2017); , 598 Fed. App’x 86, 90–91

(3d Cir. 2015); , 990 F. Supp. 2d 478, 504–05

(M.D. Pa. 2014), , 612 Fed. App’x 124 (3d Cir. 2015).

The investigation and resulting PDC notice to Haines in September

2020 likewise do not constitute adverse employment actions. Haines was

never suspended or otherwise disciplined as a result of this investigation

and pre-disciplinary conference notice; instead, he immediately went on

FMLA leave and then LWOP status. , 683 Fed. App’x at 159–60;

, 598 Fed. App’x at 90–91; , 283 F. Supp. 3d at 324 n.4;

, 94 F. Supp. 3d at 714; , 990 F. Supp. 2d at 504–05.

Moreover, Haines has failed to demonstrate that he was treated less

favorably than similarly situated employees not in his protected class, to

wit: Porasky and Ritz, both whom were investigated and received PDC

notices as well. , 829 F.2d 437, 440 (3d Cir.

1987).

The call to police, however, is a different matter. While a truthful

call to police about a threatening or dangerous employee might not be an

adverse employment action, there is case law to support the proposition

that a report to police may constitute one.

, 241 F.3d 589, 593 (7th Cir. 2001) (affirming directed verdict for

defense following trial); , 183 F.3d 598, 606 (7th

Cir. 1999) (reversing summary judgment decision). Based on the evidence

before us, viewed in the light most favorable to the non-moving plaintiff,

particularly the fact that the concerns regarding a potential danger posed

by Haines originated with an email from Gorko, his immediate

supervisor, we find there exists a genuine dispute of material fact with

respect to whether this call to police on September 17, 2020, constitutes

an adverse employment action.

It is beyond cavil that Haines’s ultimate termination was an

adverse employment action. Although this termination did not formally

occur for more than year on FMLA leave and LWOP status, and came

only after he failed to respond to his employer’s inquiries about a return-

to-work date, Haines contends that he was constructively discharged

when he left work on September 17, 2020, never to return, as a result of

the events of that day.26 Based on the evidence before us, viewed in the

light most favorable to the non-moving plaintiff, we find there exists a

genuine dispute of material fact with respect to whether Haines was

constructively discharged, whether as a result of the allegedly traumatic

encounter with police at his home on September 17, 2020, or as a result

26 In the alternative, his hostile work environment claim separately

alleges that he was constructively discharged as a result of a longer

running pattern of harassment on the basis of his sexual orientation.

of the hostile work environment alleged in a separate count of the second

amended complaint.

With respect to the fourth element of a discrete act discrimination

claim—whether the action occurred under circumstances that could give

rise to an inference of intentional discrimination—we note that there is

no evidence of discriminatory animus with respect to Small, Roberts, or

other senior PennDOT management personnel. But, based on the

evidence before us, viewed in the light most favorable to the non-moving

plaintiff, we find there exists a genuine dispute of material fact with

respect to whether discriminatory animus by Gorko, Haines’s direct

supervisor and the apparent origin for reports of Haines’s mental

instability and potential dangerousness, may be imputed to their

common employer, PennDOT. , 244 F.

Supp. 3d 476, 483–84 (W.D. Pa. 2017) (genuine dispute of material fact

existed with respect to foreman with authority to assign work to plaintiff,

not merely oversee its performance as a co-worker);

, 131 F. Supp. 2d 637, 651 (M.D. Pa. 2001) (“A

supervisor’s knowledge generally will be imputed to the company for

purposes of liability only if the supervisor is at a sufficiently high level in

the company hierarchy.”) (brackets omitted).

, 568 F.3d 100, 107 (3d Cir. 2009).

Accordingly, we find that, based on the record before us, viewed in

the light most favorable to the non-moving plaintiff, there exists no

genuine dispute of material fact, and the defendant, PennDOT, is entitled

to judgment as a matter of law with respect to the plaintiff’s Title VII

claims of discrimination arising out of the following discrete acts: (1) a

July 30, 2020, incident in which Gorko berated Haines in front of his

coworkers for dropping radios; (2) an August 20, 2020, incident in which

Gorko reported to Roberts that Haines was working an unauthorized

second job, and Roberts allegedly told Gorko to watch Haines’s house for

evidence that Haines was doing so; and (3) an investigation regarding a

September 14, 2020, incident involving damage to a PennDOT truck

driven by Haines and a PDC notice dated September 16, 2020, and

delivered to Haines on September 17, 2020.

We further find that, based on the record before us, viewed in the

light most favorable to the non-moving plaintiff, a genuine dispute of

material fact does exist with respect to the plaintiff’s Title VII claims of

discrimination arising out of the following discrete acts: (1) a September

17, 2020, incident in which PennDOT staff called 9-1-1 to request that

local police to conduct a welfare check on Haines at his home, informing

the 9-1-1 dispatcher that Haines had made threats of violence concerning

his family, and that he might possibly be violent if police showed up, and

two local police officers were dispatched to encounter Haines at his

residence as a consequence; and (2) the alleged constructive discharge of

Haines on or after September 17, 2020. Having found that the plaintiff

has established a prima facie case of discrimination arising out of these

discrete acts, the defendant’s motion for summary judgment will be

denied with respect to these particular claims.

The plaintiff claims that he was subjected to ongoing harassment

and a hostile work environment over a course of years, culminating in his

constructive discharge. The plaintiff’s hostile work environment claim is

not evaluated under the framework.

, 870 F.3d 206, 213 n.11 (3d Cir. 2017); , 669

F. Supp. 3d at 439–40.

To succeed on a hostile work environment claim under Title VII, a

plaintiff must establish that:

(1) he suffered intentional harassment based on his

[sexual orientation]; (2) the harassment was severe or

pervasive; (3) the harassment detrimentally affected

him; (4) the harassment would have detrimentally

affected a reasonable person in similar circumstances;

and (5) a basis for employer liability. The last factor

requires that the plaintiff point to facts showing that

the employer was aware of the discrimination and yet

failed to take prompt and appropriate corrective action.

, 578 F. Supp. 3d 649, 665–66 (M.D. Pa.

2022) (citations omitted); , 669 F. Supp. 3d at 441.

In its brief, PennDOT addresses this claim in perfunctory fashion

only. It argues that most of the acts identified by the plaintiff occurred

more than 300 days before Haines filed his EEOC charge, and therefore

need not be considered. PennDOT argues that the remaining three acts—

the July 2020 radio incident, the August 2020 “investigation” regarding

outside employment, and the September 2020 investigation regarding

damage to a PennDOT truck and a call to police reporting Haines as a

potential danger to his family and to responding officers—offer no indicia

of sex discrimination and do not constitute severe or pervasive

harassment.

But, as explained in the foregoing section of this opinion addressing

the exhaustion of administrative remedies, “[a] hostile work environment

claim is composed of a series of separate acts that collectively constitute

one unlawful employment practice . . . .”

, 706 F.3d 157, 165 (3d Cir. 2013) (internal quotation marks

omitted).

Hostile environment claims are different in kind from

discrete acts. Their very nature involves repeated

conduct. The “unlawful employment practice” therefore

cannot be said to occur on any particular day. It occurs

over a series of days or perhaps years and, in direct

contrast to discrete acts, a single act of harassment

may not be actionable on its own. Such claims are

based on the cumulative effect of individual acts.

, 536 U.S. at 115 (citations omitted). “[A]cts which are not

individually actionable but may be aggregated to make out a hostile work

environment claim . . . can occur at any time so long as they are linked in

a pattern of actions which continues into the applicable limitations

period.” , 440 F.3d at 127;

, 170 F. Supp. 3d 801, 825 (W.D. Pa. 2016).

“The existence of a hostile work environment is determined by

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.’”

, ___ F. Supp. 3d ____, 2025 WL 62803, at *3

(E.D. Pa. Jan. 9, 2025); , 906 F. Supp.

2d 345, 355 (M.D. Pa. 2012) (“[A] court’s hostile work environment

analysis must concentrate not on individual incidents, but on the overall

scenario because it is often difficult to determine the motivation behind

allegedly discriminatory actions. The workplace conduct is not measured

in isolation. Rather, whether an environment is sufficiently hostile or

abusive must be determined by looking at all the circumstances.”)

(citations and internal quotation marks omitted).

Based on the evidence before us, viewed in the light most favorable

to the plaintiff, we find there is a genuine dispute of material fact with

respect to each of the five elements of a hostile work environment claim

articulated above. Based on the material facts set forth above, which

describe an extensive pattern of harassment, much of it explicitly related

to Haines’s sexual orientation, beginning in June 2018 and continuing

until an encounter with police sent to his home by his supervisors on

September 17, 2020, a reasonable jury could conclude that Haines

suffered intentional harassment due to his sexual orientation, the

harassment was severe or pervasive, the harassment detrimentally

affected Haines, and the harassment would have detrimentally affected

a reasonable person in similar circumstances.

With respect to the fifth element, a basis for employer liability, the

Supreme Court has explained:

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. In cases in which the harasser is a

“supervisor,” however, different rules apply. If the

supervisor’s harassment culminates in tangible

employment action, the employer is strictly liable. 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 preventative or corrective

opportunities that the employer provided.

, 570 U.S. 421, 424 (2013).

Here, although some of the harassment appears to have been by co-

workers on the same crew as Haines, it was Gorko, Haines’s immediate

supervisor and the foreman of that crew, who was the primary harasser.

Neither party has expressly addressed the issue of whether Gorko’s

alleged harassment of Haines culminated in a tangible employment

action, but the plaintiff has argued in his hostile work environment claim

that the pattern of harassment ultimately culminated in his constructive

discharge on September 17, 2020, when he left work early, went on FMLA

leave and LWOP status, and never returned to work at PennDOT. A

plaintiff may show he was constructively discharged by establishing

“working conditions bec[a]me so intolerable that a reasonable person in

the employee’s position would have felt compelled to resign.”

, 542 U.S. 129, 141 (2004). A constructive discharge

constitutes a tangible employment action “when a supervisor’s official act

precipitates the constructive discharge.” at 140–41. Based on the

record before us, viewed in the light most favorable to the non-moving

plaintiff, we find there exists a genuine dispute of material fact with

respect to whether Haines was constructively discharged and the

constructive discharge was precipitated by an official act by his

supervisor Gorko, in which case PennDOT may be held strictly liable, or

whether PennDOT exercised reasonable care to prevent and correct any

harassing behavior and Haines unreasonably failed to take advantage of

any preventative or corrective opportunities that PennDOT had

provided.

Accordingly, we find that, based on the record before us, viewed in

the light most favorable to the non-moving plaintiff, there is a genuine

dispute of material fact with respect to the plaintiff’s Title VII hostile

work environment claim. Therefore, the defendant’s motion for summary

judgment will be denied with respect to this particular claim.

III. CONCLUSION

For the foregoing reasons, the individual defendants—Brian Small

and Ronald Gorko, each named as a defendant in his personal capacity—

will be dismissed sua sponte for failure to state a claim upon which relief

can be granted. Gorko’s motion for joinder and his motion for summary

judgment will be denied as moot. PennDOT’s motion for summary

judgment will be granted in part and denied in part. The clerk will be

directed to enter judgment in favor of defendant PennDOT and against

the plaintiff with respect to: (1) all of the plaintiff’s Title VII retaliation

claims; (2) all of the plaintiff’s Title VII discrimination claims arising out

of discrete acts except for those arising out of the September 17, 2020,

call to police and arising out of his constructive discharge. PennDOT’s

motion for summary judgment will be denied with respect to the

plaintiff’s Title VII hostile work environment claim and his Title VII

discrete act discrimination claims arising out of the September 17, 2020,

call to police and arising out of his constructive discharge. PennDOT’s

motion for summary judgment will be denied as moot to the extent it

seeks summary judgment on behalf of defendant Small.

This matter shall be set down for a jury trial with respect to the

plaintiff’s surviving claims against PennDOT.

An appropriate order follows.

Dated: March 28, 2025

JOSEPH F. SAPORITO, JR.

United States District Judge