The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RYANN TILLMAN, )
)
Plaintiff, )
)
v. ) 2:23cv1585
) Electronic Filing
XPO LOGISTICS FREIGHT, INC., )
)
Defendant. )
OPINION
Ryann Tillman ("plaintiff") commenced this action against XPO Logistics Freight, Inc.
("defendant" or "XPO"), seeking redress for a hostile work environment and retaliation under
Title VII and the Pennsylvania Human Relations Act ("PHRA"). Presently before the court is
defendant's motion for summary judgment. For the reasons set forth below, the motion will be
denied.
Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(A). Rule 56 “‘mandates
the entry of summary judgment, after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.’” Marten v.
Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322–
23 (1986)). Deciding a summary judgment motion requires the court to view the facts, draw all
reasonable inferences and resolve all doubts in favor of the nonmoving party. Doe v. Cnty. of
Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001).
The moving party bears the initial burden of identifying evidence which demonstrates the
absence of a genuine issue of material fact. When the movant does not bear the burden of proof
on the claim, the movant’s initial burden may be met by demonstrating the lack of record
evidence to support the opponent’s claim. Nat'l State Bank v. Fed. Reserve Bank of New York,
979 F.2d 1579, 1581-82 (3d Cir. 1992). Once that burden has been met, the non-moving party
must set forth “specific facts showing that there is a genuine issue for trial,” or the factual record
will be taken as presented by the moving party and judgment will be entered as a matter of law.
Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting
FED. R. CIV. P. 56(E)) (emphasis in Matsushita). An issue is genuine only if the evidence is such
that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
In meeting its burden of proof, the “opponent must do more than simply show that there
is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. The non-
moving party “must present affirmative evidence in order to defeat a properly supported motion”
... “and cannot simply reassert factually unsupported allegations.” Williams v. Borough of West
Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent “merely rely upon conclusory
allegations in [its] pleadings or in memoranda and briefs.” Harter v. GAF Corp., 967 F.2d 846,
852 (3d Cir. 1992); Sec. & Exch. Comm'n v. Bonastia, 614 F.2d 908, 914 (3d Cir. 1980)
(“[L]egal conclusions, unsupported by documentation of specific facts, are insufficient to create
issues of material fact that would preclude summary judgment.”). Likewise, mere conjecture or
speculation by the party resisting summary judgment will not provide a basis upon which to deny
the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the
non-moving party's evidence is merely colorable or lacks sufficient probative force summary
judgment may be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v.
BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993)
(although the court is not permitted to weigh facts or competing inferences, it is no longer
required to “turn a blind eye” to the weight of the evidence).
The record as read in the light most favorable to plaintiff establishes the background set
forth below. Defendant is a large national trucking company. Plaintiff is a young adult female
who was hired by defendant on February 25, 2020, as a Driver Sales Representative ("DSR") at
its Pittsburgh, Pennsylvania location. As a DSR, plaintiff was responsible for operating a
tractor-trailer combination. She also was responsible for generating sales leads and loading and
unloading freight at delivery locations and XPO terminals.
Defendant requires all DSR personnel to obtain and maintain HAZMAT endorsements
(i.e., certifications). Federal law mandates any person driving hazardous materials maintain a
HAZMAT endorsement.
Shortly after plaintiff began her employment, she met with service center manager
("SCM") Walt Holtz for her thirty-day review. Plaintiff did not raise any concerns and Holtz
reported plaintiff's demeanor as "positive." As SCM, Holtz typically was on the job site by 6 or
7 a.m. and remained there throughout the day.
In approximately August or September of 2020, plaintiff began driving "the Cranberry"
route for XPO. In order to provide plaintiff with guidance and advice for best practices, service
manager Mark Seftas gave her the telephone number of Charles Ward, another DSR familiar
with the route. Plaintiff reached out to Ward and he immediately began making suggestive
comments to plaintiff.
In September or October of 2020, plaintiff orally informed Holtz that Ward repeatedly
had made unwanted advances towards her. She relayed that despite unequivocally rejecting him
numerous times, Ward remained persistent and began making increasingly salacious offers.
Ward communicated to plaintiff that he would like to purchase a 120-inch television so he and
plaintiff could watch pornography together while they cuddled on his couch. Plaintiff responded
by stating she was involved with the father of her daughter and remained uninterested.
Undeterred, Ward invited her to bring her children with her and offered the babysitting services
of his daughter so that he and plaintiff could watch pornography undisturbed. Finally, plaintiff
relayed to Holtz that Ward proclaimed he could last several rounds of sex with plaintiff.
Holtz indicated he would investigate the matter and speak with Ward. Holtz's
investigation amounted to speaking with both plaintiff and Ward to obtain their personal
recollections. In doing so, Holtz wanted to confirm that plaintiff was not just misunderstanding
playful flirtation and/or rule out that she was not inviting the advances. Holtz, in concert with
XPO policy, determined that the appropriate disciplinary action was a "formal coaching and
entry into [Ward's] file that any further actions of this instance would result in further discipline."
Doc. No. 53-1, at 3.
Ward's conduct towards plaintiff did not decrease after the formal coaching. Throughout
the fall of 2020 and until Ward left XPO in February of 2022, Ward continued to make lewd and
suggestive comments to plaintiff at the loading dock and whenever they spoke on the phone.
Plaintiff voiced concern to supervisory and Human Relations personnel Jason Darocha, Jonathan
Marafiote, and Marissa Wiley. Further, numerous witnesses observed and overheard Ward make
these statements to plaintiff and encroach her personal space on the dock. Defendant, however,
insisted on the production of "actual evidence" such as a text or email to overcome a "he said,
she said" situation. As Holtz testified, defendant's supervisors would not make a credibility
determination between the two parties.
According to Senior Human Relations ("HR") generalist Judith Key, defendant
maintained an "open door policy" concerning workplace harassment. Under this policy,
employees were told they could go to anyone if they had a concern. For example, an employee
could lodge a complaint with a supervisor, their service center manager, or a member of HR,
such as Key herself. Further, the employees could go to the HR member above her, Jonathan
Marafiote, or make a report on defendant's compliance hotline. Key further elaborated that if a
complaint were filed, she would open an investigation, conduct interviews, write a memo of the
interviews, and draft a case summary. The information would then be forwarded to her boss,
Marafiote, who would review the record in its entirety. Defendant's supervisory and HR
employees all stressed that XPO policy required corroborating evidence to overcome a "he said,
she said" scenario.
In approximately August of 2021, Marty Usko began harassing plaintiff. Plaintiff
testified that Usko would routinely pull her hair, invade her personal space, and whisper in her
ear "mmhm, you smell good today," or "mmhm, you look good today." Further, Usko repeatedly
told plaintiff that "[he] wanted to tie [her] up like a farm animal [and] tickle [her] bum with a
feather." Doc. No. 47-1 at 37. Plaintiff reported this to her afternoon shift dispatcher, Seftas,
several times. Seftas witnessed Usko's interactions with plaintiff on occasion.
On April 20, 2022, plaintiff observed an XPO truck pulled over to the side of the road
near Triadelphia, West Virginia. Plaintiff was unaware of the driver's identity. Concerned about
whether the driver needed aid, plaintiff approached the cabin. The driver, Dallas Brown, opened
the door, caressed the inside of plaintiff's leg and told her he "would like to eat that pussy."
When plaintiff rebuffed his advance, Brown quickly offered her $200 and told her "to keep your
fucking mouth shut." Plaintiff refused the money. Fearing retaliation from Brown because he
was a large man with a known temper, plaintiff did not immediately report this incident.
On July 7, 2022, while unloading a trailer on the dock, a driver named Thomas Keaton
said he was always the one bending over and asked plaintiff when he would get to see her bend
over. She quipped back that she was lazy and he was not going to see that happen.
On July 14, 2022, a fellow DSR named Joe Ross approached plaintiff and showed her a
text that DSR Bill Boehme had sent him in September of 2021. The text contained a provocative
image depicting the backside of an ostensibly nude woman who was bound at her hands and feet.
The woman had elaborate fingernails. Accompanying the photo was Boehme's text: "think
Ryann and Rachel would like to get their nails done?" With this "written evidence," plaintiff
made a complaint to her supervisors.
Terminal Manager Darocha escalated the report to human resources. On July 20, 2022,
Marafiote initiated an investigation by interviewing plaintiff. At this time, plaintiff reported the
incident regarding Brown and also provided a written statement about the Usko, Brown, and
Ross incidents. Ultimately, Marafiote concluded his investigation without finding Brown to be
at fault. As to the text message, defendant's supervisors dismissed the incident as being two
friends sharing a joke on private phones.
When Brown was interviewed by Darocha and Marafiote about plaintiff's initial
complaint regarding the roadside incident, Brown was asked if he touched plaintiff or gave her
money. Brown denied that he did either of these things or that he generally engaged in harassing
conduct. Brown was not asked about whether he caressed plaintiff's leg, made a sexually explicit
proposition or offered her money.
Due to her fears of Brown and her uneasiness about making the complaint against him,
plaintiff asked Darocha for the day off to assure that she and Brown were not present in the
workplace when the investigation occurred. Plaintiff was not permitted to be off and the two
came in close contact on that day in the terminal. Brown just stared at plaintiff and shook his
head in disapproval.
Sometime after the investigation, Brown called plaintiff and apologized for lying about
what happened. On August 26, 2022, plaintiff informed Marafiote and Darocha of the content of
the call. Darocha then wrote an email about the incident memorializing that plaintiff made the
call to Brown. Defendant did not take further action about the call.
Plaintiff filed a charge of discrimination with the EEOC on December 9, 2022, alleging a
sexually hostile work environment which defendant failed to stop. Plaintiff's complaint was
dual-filed with the PHRC. In an email dated January 9, 2023, Seftas informed Darocha that an
employee overheard plaintiff expressing concern about ongoing discrimination.
In February of 2023, plaintiff's HAZMAT certification unexpectedly lapsed when she
renewed her driver's license. During the process of renewing her license, plaintiff was informed
that her HAZMAT certification would transfer over with the renewal. She subsequently learned
that it did not. She immediately reported the situation to defendant and completed her
application with Transportation Security Agency ("TSA") to obtain the certification.
Defendant permitted plaintiff to work on the docks from February 6th through February
10th, 2023. It then informed her that without her certification, she would be placed on unpaid
leave. Defendant advised she would have up to ninety days of unpaid leave to obtain her
HAZMAT certification. Initially, she was given thirty days of leave and told that if she needed
more, she would have to notify defendant.
When plaintiff had a valid HAZMAT certification, she rarely transported HAZMAT
materials. Further, while she was working on the dock she heard two other men, Mark (last
name unknown) and Thomas Keaton joking and bragging about driving without a HAZMAT
certification.
When plaintiff was being forced to go on unpaid leave, she requested that she be assigned
to work on the dock or drive routes that did not require the certification while TSA reviewed her
application. Defendant denied her requests.
Plaintiff did not receive her certification from TSA within the 90 days. Defendant
notified plaintiff the Friday before the deadline expired that she was expected to be at work on
Monday (the 91st day) with her certification. When plaintiff did not appear on that date with the
certification, defendant terminated plaintiff.
On June 6, 2023, the EEOC issued plaintiff a notice of the right to sue. Plaintiff filed an
additional charge of discrimination with the EEOC on November 8, 2023, alleging defendant
placed her on leave and subsequently terminated her in retaliation for making complaints about a
sexually hostile work environment. On July 2, 2024, the EEOC issued plaintiff a notice of the
right to sue.
Defendant moves for summary judgement on two grounds. First, it asserts that plaintiff's
claim(s) for a hostile work environment must be separated into two distinct groups: the alleged
harassment by Ward, and all the other asserted instances of harassment. In delineating between
the two, defendant insists that the allegations against Ward are time barred and plaintiff has
failed to demonstrate that the other harassment is severe or pervasive and/or there is a basis for
respondeat superior liability regarding the same. Second, defendant maintains that plaintiff
cannot establish a claim for retaliation because she herself allowed her HAZMAT certification to
lapse and then failed to renew it on time despite defendant granting her a leave of absence and
multiple extensions.
In response, plaintiff maintains that Ward's behavior and the subsequent harassment are a
continuation of the same severe and pervasive hostile work environment and defendant failed to
take steps reasonably calculated to remediate it. In addition, from plaintiff's perspective the
record will support a finding that defendant terminated her under the pretext of a lapsed
HAZMAT certification in retaliation for her making complaints about several employees and
filing a charge with the EEOC.
Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination “against
any individual with respect to [his or her] compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000 e–2(a)(1). The
prohibition “not only covers ‘terms’ and ‘conditions' in the narrow contractual sense, but
‘evinces a congressional intent to strike at the entire spectrum of disparate treatment of
[protected employees] in employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 78 (1998) (quoting Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)). “Title VII
is violated ‘when the workplace is permeated with discriminatory [sex-based] intimidation,
ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’” Ocheltree v. Scollon Productions,
Inc., 335 F.3d 325, 331 (4th Cir. 2003) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 215
(1993)). Title VII is designed to protect against “working environments [that are] so heavily
polluted with discrimination as to destroy completely the emotional and psychological stability
of minority group workers.” Meritor, 477 U.S. at 66 (quoting Rodgers v. EEOC, 454 F.2d 234,
238 (5th Cir. 1971)).
A plaintiff alleging a sexually hostile work environment must establish the following
elements: (1) the employee suffered intentional discrimination because of her sex; (2) the
discrimination was severe or pervasive; (3) the discrimination detrimentally affected the
plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in
that position; and (5) the existence of respondeat superior liability. Abramson v. William
Paterson College of New Jersey, 260 F.3d 265, 276-77 (3d Cir. 2001). Proffering sufficient
evidence to meet each element of a hostile work environment claim generally precludes
summary judgment in the defendant's favor and permits the plaintiff to proceed to trial. Id. at
280-281.
Here, the record contains sufficient evidence to permit a finding that plaintiff suffered
pervasive sexual harassment in the workplace. It also contains sufficient evidence to support a
finding that defendant failed to take steps reasonably calculated to stop the harassment and
prevent it from reoccurring. Thus, defendant is not entitled to summary judgement on this claim.
Defendant's argument that plaintiff cannot establish the second element rests on the
assumption that Ward's alleged harassment and the other instances of later harassment must be
placed into different buckets. Defendant reasons that when the instances of harassment are
separated in this way, it becomes clear that the claim about Ward's behavior is time-barred and
the other instances of harassment fail to meet the severe or pervasive element. This is
unpersuasive.
Defendant's contentions that plaintiff was required to file a harassment claim within 300
days of the last harassment by Ward is misplaced. Defendant has not shown that Ward's conduct
created a discrete form of disparate treatment discrimination that was actionable; nor has it
shown that Ward's conduct was itself independently actionable against defendant as a hostile
work environment claim. In other words, defendant 1) misinterprets the nature of a hostile work
environment claim, 2) fails to establish that Ward's conduct gave rise to a claim for sexual
harassment that independently was actionable, and/or 3) fails to establish that plaintiff had a duty
to file a complaint based on Ward's behavior or lose the right to complain about it as part of the
environment as a whole. As a result, defendant has failed to establish that Ward's harassment
must be separated from the other instances of harassment.
The Supreme Court has considered and rejected the notion that, in the absence of distinct
claims for disparate treatment, the segments of a hostile work environment claim are to be
analyzed separately for timeliness. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101,
115-117 (2002). This is because a hostile work environment claim "is composed of a series of
separate acts that collectively constitute one unlawful employment practice and cannot be said to
occur on any particular day." National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 115-
117 (2002).
The Supreme Court has made clear that because a hostile work environment is by its
nature a continuing violation, "[i]n order for the charge to be timely, the employee need only file
a charge within 180 or 300 days of any act that is part of the hostile work environment." Id. at
118. To further demonstrate this point it opined:
(1) Acts on days 1-400 create a hostile work environment. The employee files the charge
on day 401. Can the employee recover for that part of the hostile work environment that
occurred in the first 100 days? (2) Acts contribute to a hostile environment on days 1-
100 and on day 401, but there are no acts between days 101-400. Can the act occurring
on day 401 pull the other acts in for the purposes of liability? In truth, all other things
being equal, there is little difference between the two scenarios as a hostile environment
constitutes one "unlawful employment practice" and it does not matter whether nothing
occurred within the intervening 301 days so long as each act is part of the whole. Nor, if
sufficient activity occurred by day 100 to make out a claim, does it matter that the
employee knows on that day that an actionable claim has happened; on day 401 all
incidents are still part of the same claim. On the other hand, if an act on day 401 had no
relation to the acts between days 1-100, or for some other reason, such as certain
intervening action by the employer, was no longer part of the same hostile environment
claim, then the employee cannot recover for the previous acts, at least not by reference to
the day 401 act.
Id. In other words, as long as any of the constituent acts were part of the same hostile
environment, they remain within the scope of any timely filing of that single unlawful
employment practice.
Given the nature of the unlawful employment practice at issue, defendant's attempt to
separate Ward's alleged harassment from the other instances that form the basis of plaintiff's
hostile work environment claim is unavailing. Defendant appears to conflate the timeliness of a
hostile work environment claim with that of a disparate treatment claim. But plaintiff does not
seek to prove and defendant has failed to identify any materially adverse employment action that
occurred in conjunction with Ward's conduct. Instead, she present's Ward's conduct as a part of
an ongoing environment of hostility. And there is no dispute that the last act of asserted hostility
contributing to the environment occurred within 180 days of the filing of plaintiff's EEOC
complaint. It follows that the use of Ward's conduct is not untimely merely because it occurred
at an earlier date.
Defendant nevertheless maintains that Ward's conduct was distinct and separate from the
other instances. But it fails to provide any persuasive reason for such treatment and, more to the
point, plaintiff's reliance on Ward's behavior in support of her claim is consistent with the
controlling precedent.
In Morgan, the Court cautioned against segmenting the incidents comprising a hostile
work environment claim into separate groupings for either timeliness or liability. It further
opined:
It is precisely because the entire hostile work environment encompasses a single unlawful
employment practice that we do not hold, as have some of the Circuits, that the plaintiff
may not base a suit on individual acts that occurred outside the statute of limitations unless
it would have been unreasonable to expect the plaintiff to sue before the statute ran on such
conduct. The statute does not separate individual acts that are part of the hostile
environment claim from the whole for the purposes of timely filing and liability. And the
statute does not contain a requirement that the employee file a charge prior to 180 or 300
days “after” the single unlawful practice “occurred.” Given, therefore, that the incidents
constituting a hostile work environment are part of one unlawful employment practice, the
employer may be liable for all acts that are part of this single claim. In order for the charge
to be timely, the employee need only file a charge within 180 or 300 days of any act that is
part of the hostile work environment.
Morgan, 536 U.S. at 117-18. And our court of appeals reiterated these same concerns in West v.
City of Philadelphia, 45 F.3d 744 (3d Cir. 1995). There, in reversing the district court's ruling
that the plaintiff's evidence of a hostile work environment was limited to the incidents occurring
within 300 days of the filing of the complaint or otherwise to a showing it was committed by the
same asserted harasser, the court opined:
To prove a hostile work environment, West had the burden of establishing that he suffered
intentional, pervasive, and regular racial discrimination of which PECO supervisors and
management were aware and which PECO permitted to continue. Nowhere in the case law
establishing these standards is there a requirement that the discriminatory conduct of each
co-worker, who participated in creating the hostile environment, be pervasive and/or on-
going. We believe that West proffered sufficient evidence to demonstrate that the hostile
environment was on-going. Once he had done so, evidence of incidents of pre–300–day
discriminatory activity was admissible if the incidents were related to the overall hostile
environment.
* * *
The “totality” approach cannot support the “same actor” or “same form of discrimination”
requirements imposed at trial here. Because a hostile work environment claim is a single
cause of action, rather than a sum of discrete claims, each to be judged independently, the
focus is the work atmosphere as a whole. If an employer knowingly (actually or
constructively) permits a hostile work environment to exist, it is of no import that the
collection of incidents comprising the claim were committed by a variety of individuals.
Id. at 756.
Moreover, "[u]nder the continuing violation doctrine, discriminatory acts that are not
individually actionable may be aggregated to make out a hostile work environment claim [and]
such acts 'can occur at any time so long as they are linked in a pattern of actions which continues
into the applicable limitations period.'" Mandel v. M&Q Packaging Corp., 706 F.3d 157, 165
(3d Cir. 2013) (quoting O'Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006)). And in
distinguishing between incidents that reflect isolated episodes of discrimination from those that
are actionable as a persistent, ongoing pattern, examining whether the episodes are sufficiently
linked through their subject matter, frequency and similarity provide non-exclusive guideposts
from which to determine whether the incidents can be used as component parts of a hostile work
environment claim. Mandel, 706 F.3d at 167.
So from a timing perspective, a defendant cannot at its whim separate out the individual
acts its employees are alleged to have committed from the whole in order to prevent a plaintiff
from pursuing or establishing a hostile work environment claim. The statute does not separate
the individual acts that are part of the whole and it does not require that an employee file a
charge prior to 180 or 300 days after the single unlawful practice has occurred. Morgan, 535
U.S. at 118; West, 45 F.3d at 756 ("Finally, the [on going hostile work] harassment did not cause
a discrete event such as a lost job or a denied promotion and, thus, it did not trigger a duty of the
plaintiff to assert his rights arising from that deprivation."). And from a liability perspective, a
plaintiff may rely on episodes that are sufficiently linked through their subject matter, frequency
and similarity to form the component parts of a hostile work environment claim.
In this instance, plaintiff does not attempt to recover from defendant for a specific acute
harm suffered from Ward's actions. Instead, she presents Ward's harassment as a part of a larger
tapestry of ongoing hostility in the work environment. Using his conduct in this way is not time
barred because plaintiff did file her claim within 180 days of at least one of the incidents forming
the basis for proving a persistent, ongoing pattern of hostility. And Ward's conduct and the other
incidents are sufficiently linked from a liability perspective: all of the conduct involves other
male employees approaching plaintiff for sex and/or treating her as a sex object and/or harassing
her because of her sexual appeal; the incidents occurred at intervals spanning the entire three-
year period she worked for defendant; and they reflect the same or similar forms of hostility
based on sex. Consequently, plaintiff may present Ward's harassment as evidence of her hostile
work environment claim.
Defendant's contention that plaintiff lacks sufficient evidence to permit a factfinder to
determine that the harassment was pervasive suffers from similar shortcomings. In general, the
Supreme Court’s cases in this area have taken “a middle path between making actionable
conduct that is merely offensive and requiring the conduct to cause a tangible psychological
injury.” Harris, 510 U.S. at 21. Striking such a balance is necessary to maintain the distinction
between objectively hostile or abusive work environments that violate Title VII’s broad rule of
workplace equality and simple teasing, offhand comments and isolated incidents that are beyond
its reach. Id.; Clark County v. Breeden, 532 U.S. 268, 271 (2001).
The Supreme Court has emphasized that the standards for judging hostility must remain
sufficiently demanding so that Title VII does not become “a general civility code.” Faragher v.
City of Boca Raton, 524 U.S. 775, 788 (1998). It has reiterated that "sexual harassment is
actionable under Title VII only if it is so severe or pervasive as to alter the conditions of the
victim's employment and create an abusive working environment." Clark County, 121 S.Ct.
1509; Meritor, 477 U.S. at 67. Conduct which amounts to the "ordinary tribulations of the
workplace" such as sporadic use of abusive language, off-handed jokes and occasional taunting
and teasing is beyond the purview of Title VII. Faragher, 524 U.S. at 788. Conduct becomes
actionable only where it has become sufficiently "extreme to amount to a change in the terms
and conditions of employment." Faragher, 524 U.S. at 788.
All of the circumstances surrounding the asserted hostile conduct are to be examined in
determining whether a work environment is sufficiently severe or pervasive. See Harris, 510
U.S. at 23. The court should assess the objective severity of the harassment and can consider (1)
its frequency, (2) its severity, (3) whether it is physically threatening or humiliating (as opposed
to an offensive utterance), (4) whether it unreasonably interferes with the employee's work
performance and (5) the effect on the employee's psychological well-being. Id.; Moody v.
Atlantic City Board of Educ., 870 F.3d 206, 214 (3d Cir. 2017) (“The question of ‘whether an
environment is sufficiently hostile or abusive must be judged by looking at all the circumstances,
including the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.’”) (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S.
268, 270-71 (2001)). It is the totality of the circumstances that is critical and no single factor is
required or dispositive. Faragher, 524 U.S. at 788. As the Court has opined:
[t]he real social impact of workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships which are not fully
captured by a simple recitation of the words used or the physical acts performed.
Common sense, and an appropriate sensitivity to social context, will enable courts
... to distinguish between simple teasing or roughhousing ... and conduct which a
reasonable person in the plaintiff's position would find severely hostile or abusive.
Oncale, 523 U.S. at 81-82; accord Abramson, 260 F.3d at 279-80 (pervasive requirement is
satisfied where the evidence on the environment as a whole "can be found to aggregate to create
an environment hostile to a person [sharing the plaintiff's protected trait].") (citing in support
Durham Life Ins. Co., 166 F.3d 155).
Moreover, the severity of the asserted conduct must be considered. Ordinarily, isolated
incidents of offensive conduct do not rise to level of actionable conduct. Castleberry v. STI
Group, 863 F.3d 259, 264 (3d Cir. 2017) (citing Jensen v. Potter, 435 F.3d 444, 449 (3d Cir.
2006)). Nevertheless, the Supreme Court's precedent makes clear that "the correct standard is
"severe or pervasive." Id. (emphasis in original). These are "alternative possibilities." Id. In
other words, "some harassment may be severe enough to contaminate an environment even if not
pervasive; other, less objectionable, conduct will contaminate the workplace only if it is
pervasive.” Id. (quoting Jensen, 435 F.3d at 449 n. 3). Thus, isolated incidents or even a single
incident of discriminatory treatment can satisfy the "severe or pervasive" requirement where the
conduct is sufficient to amount to a change in the terms and conditions of employment. Id.
When considered under the above standards, plaintiff's evidence falls well above the
threshold needed to proceed to trial. Ward's harassing conduct began approximately one month
into plaintiff's employment and it continued from the late summer of 2020 until Ward's departure
in February of 2022. Ward repeatedly made unwanted sexual advances to plaintiff. Despite
having his advances continuously rebuffed, Ward made progressively more aggressive and
provocative statements to plaintiff. He told her that he wanted to watch pornography with her on
his couch, he "could last several rounds" with her and he envisioned her in provocative sexual
positions. Ward even encouraged plaintiff to bring her children to his house so his daughter
could watch them and then he and plaintiff could watch porn together.
Plaintiff sought to end the harassment by lodging an oral complaint with her service
center manager. The ensuing investigation conducted by Holtz consisted of interviewing Ward
and plaintiff. As part of the process Holtz asked plaintiff whether she had misinterpreted Ward's
conduct or had flirtatiously invited the advances. And although Holtz told plaintiff that he found
her to be credible, he concluded by informing her that without corroborating evidence, under
defendant's policy all he could do was issue Ward a formal coaching. There is evidence from
others who worked with plaintiff that this did not deter Ward and the harassment continued until
Ward's employment ended in February of 2022.
Around August of 2021, Usko began harassing plaintiff. He routinely pulled her hair,
invaded her personal space, and provocatively whispered in her ear. Usko repeatedly told
plaintiff that he wanted to tie her up like a farm animal and tickle her salaciously with a feather.
Plaintiff again reported this conduct, this time to her afternoon shift dispatcher, Seftas.
On April 20, 2022, plaintiff stopped to offer assistance (if needed) to a fellow DRS driver
who was pulled over on the side of the road. The encounter quickly turned into plaintiff being
touched inappropriately in a sexual nature and a crass statement being made. When rebuffed, the
offender offered plaintiff money and told her not to say anything about the encounter. Plaintiff
did not immediately report this incident because she feared the perpetrator.
Finally, in July of 2022, a fellow DSR showed plaintiff a lascivious text message with
sexually charged imagery. The message had been shared among at least three of plaintiff's
coworkers and contained an inquiry implying plaintiff would like to engage in the same
behavior. With the message as corroborating evidence, plaintiff logged another complaint.
Darocha handled the initial complaint and brought a member of HR, Marafiote, in on the matter.
Marafiote interviewed plaintiff and she then informed him about the Usko and Brown incidents.
Marafiote then interviewed Brown and Brown at that point denied the allegations as false.
Ultimately, defendant once again found the Usko and Brown claims to be based on a "he
said, she said" scenario without corroborating evidence and dismissed them. As to the salacious
text, defendant dismissed that as two buddies having a laugh over a text on personal time.
Of course, in isolation each of these instances could be construed as the actions of
separate actors that in combination lack the severity to carry the day on a workplace harassment
claim. But the analysis does not focus on the differences between the actors and their conduct or
the timing of their behavior as it relates to that of the others engaging in such behavior.
Andrews, 895 F.2d at 1485; West, 45 F.3d at 756. Instead, the focus is on the whole or sum total
of the work environment. West, 45 F.3d at 756 (citing Andrews, 895 F.2d at 1485). And taken
together, the record will support a fact finder determining that plaintiff was being subjected to
sexually charged harassment that was ongoing and persistent. In other words, the jury may well
conclude that the evidence depicts an environment wherein plaintiff suffered fairly continuous
harassment from many angles for nearly three years. And when she sought relief or protection,
her superiors investigated the matter under company policy – they interviewed each party and
then based on that policy they consistently denied her claims as uncorroborated "he said, she
said" claims.
Additionally, the record will support a finding that defendant tacitly inculcated an
environment in which the employees believed they could sexually harass plaintiff with little or
no repercussions. Plaintiff was the only woman on the dock. As plaintiff testified, her
harassment was not done in seclusion. To the contrary, in many instances she was harassed in
plain sight of other dock employees. Employees routinely witnessed the crass treatment of
plaintiff and heard Ward and Usko speak to her lasciviously. Her complaints were persistently
dismissed for lack of corroborating evidence. Treatment of the complaints in this manner may
well be viewed by the trier of fact as facilitating the likelihood of further harassment. Cf. West,
45 F.3d at 756 ("Rather, by implicitly condoning harassing behavior, the employer may facilitate
its spread by a greater number of harassing employees."). And this in turn may persuade the jury
that plaintiff's account of ongoing harassment is to be credited. In other words, the finder of fact
may well conclude that the harassment for the most part continued unabated and it and the lack
of meaningful discipline caused plaintiff to feel evermore isolated; and it enhanced the
discomfort and distress she was experiencing from the harassment. All of which can be found to
have contributed to the severity and pervasiveness of the harassment.
The record as a whole will support a finding that plaintiff suffered sexually charged
workplace harassment that was ongoing and persistent. For approximately three years she
endured harassment from several individuals. When she reported the harassment, defendant
conducted what can be found to be superficial investigations and repeatedly dismissed the
incidents as uncorroborated "he said, she said." And more harassment by the same individuals
followed. Consequently, the evidence will support a finding that defendant subjected plaintiff to
a workplace that contained sexually charged harassment that was sufficiently severe or pervasive
to alter the conditions of plaintiff's employment and create an abusive working environment.
Turning to the fifth element, the evidentiary record will permit the finder of fact to
determine that defendant knew or should have known about the ongoing harassment and failed to
take remedial action effectively calculated to stop it. As a result, there is a sufficient basis to
establish respondeat superior liability.
Defendant maintains that it promptly investigated all complaints and the harassing
behavior plaintiff brought to its attention and it pursued the investigations to their logical end. It
imposed discipline in the instances where plaintiff made a formal complaint and she did not
report further harassment from those individuals. Thus, it argues that it is entitled to summary
judgment because the record shows as a matter of law its responses were reasonably calculated
to prevent future harassment. We disagree.
“Employers may be liable for either a supervisor’s or a co-worker’s discriminatory acts.”
In re Tribune Media Co., 902 F.3d 384, 399 (3d Cir. 2018). When a hostile work environment is
created by a non-supervising employee, such as a co-worker, the employer is vicariously liable
only if the employer was negligent in controlling working conditions. Vance v. Ball State Univ.,
570 U.S. 421, 424 (2013); Huston v. Procter & Gamble Paper Products Corp., 568 F.3d 100, 104
(3d Cir. 2009). In general, "employer liability for co-worker harassment exists only if the
employer failed to provide a reasonable avenue for complaint or, alternatively, if the employer
knew or should have known of the harassment and failed to take prompt and appropriate
remedial action." Huston, 568 F.3d at 105.
In cases based on co-worker harassment, "an employer is directly, not vicariously, liable
for its negligent response to knowledge of sexual harassment by co-workers and the term
respondeat superior may thus not be accurate; rather, in this context, 'respondeat superior' . . .
connotes notice to the employer." Id. at 104 n. 3 (citing Kunin v. Sears Roebuck and Co., 175
F.3d 289, 293 n. 5 (3d Cir. 1999)). In contrast to the affirmative defense governing harassment
by a supervisor, the employee has the burden of proving the negligence needed to establish
vicarious liability for co-worker harassment. Andrews, 895 F.2d at 1482; Kunin, 175 F.3d at
294; Moore v. City of Philadelphia, 461 F.3d 331, 349 (3d Cir. 2006); Vance, 570 U.S. at 443.
Here, all of the harassment came from non-supervising employees. And plaintiff does
not specifically contend that defendant failed to provide an avenue for complaint. As a result,
plaintiff bears the burden of establishing that defendant is liable because it knew or should have
known of the harassment and failed to take remedial action reasonably calculated to end it. The
evidentiary record will support a finding in plaintiff's favor as to these requirements and as a
result defendant may be found to have been negligent.
Defendant places significant stock in the fact that it did investigate each of plaintiff's
formal complaints and asserts it took "remedial action" where its investigations suggested such
measures were warranted. And plaintiff did not continue to complain about each particular co-
worker's behavior and admits there was no further harassment by Boehme, Brown or Keaton
after she made a formal complaint about them. As a result, defendant argues that plaintiff is
merely quibbling with the remedial actions defendant chose to implement and it is relieved of
liability.
But this approach once again attempts to isolate the incidents of harassment into discrete
and unrelated segments and fails to account for the breadth of notice plaintiff may be able to
establish at trial under the applicable standards. It also fails to acknowledge that as to the
evidence plaintiff can present regarding Ward and Usko, the finder of fact may be convinced that
the harassment continued unabated notwithstanding plaintiff's formal reports. Likewise, the jury
will be able to infer that defendant's approach to plaintiff's formal complaints created an
atmosphere where plaintiff's co-workers believed nothing serious would result from their on-
going harassing behavior. It is the combination of these facts and inferences that provide the
foundation for the jury to pass on whether defendant was negligent in a manner that fostered
ongoing and reasonably foreseeable harassment in plaintiff's workplace.
An employee can establish "that an employer knew or should have known about
workplace sexual harassment if 'management-level employees had actual or constructive
knowledge about the existence of a sexually hostile environment.'" Huston, 568 F.3d at 105
(quoting Andrews, 895 F.2d at 1486). Principles of agency law guide the assessment of whether
a particular employee is a management level employee through whom knowledge may be
imputed to the employer. Id. at 105-06. Both the employee's duties to the employer and the
materiality of the information delimit the knowledge that may be imputed to the employer. Id. at
107-08. To be imputed, the knowledge must be within the scope of an employee's duties and it
must be material - that is important or significant - to that employee's responsibilities to the
employer. Id. at 106-07.
Generally, the principles of agency law indicate that harassment may be imputed to the
employer through two separate categories of employees. First, "an employee's knowledge of
sexual harassment may be imputed to the employer when the employee is employed to report or
respond to sexual harassment." Id. at 107. Typically, such an employee "is sufficiently senior in
the employer's governing hierarchy, or otherwise in a position of administrative responsibility
over employees under him, such as a departmental or plant manager, so that such knowledge is
important to the employee's general managerial duties." Id. Such an employee "usually has the
authority to act on behalf of the employer to stop the harassment, for example, by disciplining
employees or by changing their employment status or work assignments." Id. Such an
employee's knowledge of sexual harassment properly is imputed to the employer because it is
significant to that employee's general mandate to manage employer resources, including human
resources. Id.
"Second, an employee's knowledge of sexual harassment will be imputed to the employer
where the employee is specifically employed to deal with sexual harassment." Id. Employees
within this category include those who are "part of the employer's human resources, personnel,
or employee relations group or department." Such employees are often designated as "a point
person for receiving complaints of harassment." And such a designation provides sufficient
justification for imputing knowledge within the realm of fulfilling the duty to respond to and
report on sexual harassment. Id.
Knowledge may be actual or constructive. Actual knowledge is created by the
employee's firsthand experience in the workplace as it relates to managing workplace matters of
importance to performance of the employee's duties.
The ability to impute constructive knowledge generally has been recognized in two
situations. The first is "where an employee provides management level personnel with enough
information to raise a probability of sexual harassment in the mind of a reasonable employer."
Kunin, 175 F.3d at 294 (citing Zimmerman v. Cook County Sheriff's Dep't, 96 F.3d 1017, 1018–
19 (7th Cir. 1996)).
Constructive knowledge also may be imputed "where the harassment is so pervasive and
open that a reasonable employer would have had to be aware of it." Id. This standard seeks to
“strike the correct balance between protecting the rights of the employee and the employer by
faulting the employer for turning a blind eye to overt signs of harassment but not requiring it to
attain a level of omniscience, in the absence of actual notice, about all misconduct that may
occur in the workplace.” Kunin, 175 F.3d at 294; Poe-Smith v. Epic health Services, Inc., 2017
WL 915139, *3 (D. Del. March 8, 2017) (same).
In contrast, mere oversight of a fellow employee or of workplace production by co-
employees does not elevate an employee to a management level position for the purposes of
imputing knowledge of sexual harassment. Huston, 568 F.3d at 108-10. Such employees may
have a responsibility to manage certain work assignments in a work group or detail, but they lack
the general attributes of an employee who has the authority to regulate the workplace
environment. Id.
Here, the record will support a finding that defendant should have become aware that
plaintiff was experiencing harassment on an ongoing and persistent basis that extended well
beyond the formal complaints made by plaintiff. Plaintiff did give notice of harassment by
Ward, Brown, Usko, Boehme and Keaton. The notice was provided or conveyed to Seftas,
Holtz, and Darocha, who were management-level employees present in the workplace. From
there, notice was conveyed up the chain to Marafiote, Key and Tafilaw, who were higher-level
supervisors within defendant's human relations department.
Furthermore, the record indicates that defendant's policy treated any oral complaint made
to any manager or supervisor to be a valid and legitimate complaint. If an employee made a
complaint to any supervisor, it was the supervisor's duty to report it to HR. As such, all of
plaintiff's complaints were deemed by defendant to be valid complaints. And as the human
relations supervisor in charge of the Pittsburgh district, all of plaintiff's complaints were reported
to Marafiote, who in turn brought in Key and Tafilaw on some of the investigations. Thus, it is
clear that defendant can be found to have knowledge of all the details of the harassment which
plaintiff did report.
The record will also support a finding that defendant should have been aware of many
additional instances of harassment. Plaintiff testified that she made repeated verbal reports about
Ward's ongoing behavior to Wiley that provided details about what was happening on the dock.
She emphasized that Ward's conduct often was out in the open and everyone on the dock could
see Ward approaching her and initiating conversations with her out of the earshot of others. As
stated by HR generalist Key, XPO employees had the ability to make a legitimate complaint to
any managerial personnel. It was then the duty of the manager/supervisor to forward the
complaint to HR. Given this policy, the finder of fact may well conclude that plaintiff's
complaints to her immediate supervisors and foremen should have been conveyed up the chain of
command and defendant should have known of Ward's ongoing harassment.
Plaintiff also made several verbal complaints to Seftas about Usko's ongoing behavior on
the dock, such as personal touching and making sexually based statements. Usko corroborated
this by confirming that his personal interaction with plaintiff often did occur in locations where it
could be observed by others present at the dock or work site location. Seftas listened to the
complaints and then directed plaintiff to return to work on the dock.
Seftas was one of the employees who fielded plaintiff's initial complaints of harassment
and assisted in conveying those complaints up the management/human relations chain. What's
more, defendant's anti-harassment policies established that he was a point person and it was
acceptable for plaintiff to make complaints to management-level employees such as Seftas. As
such, the finder of fact may consider plaintiff's follow-up complaints to Seftas and the
information that was conveyed, as well as Seftas' observations of the ongoing behavior in
plaintiff's workplace environment that followed those reports. See Young v. Bayer Corp., 123
F.3d 672, 675 (7th Cir. 1997) (finding it sufficient for a plaintiff to give notice to someone who
reasonably should be expected to stop the harassment or refer the complaint up the chain of
command to someone who can stop it) (cited with approval in Hurley, 174 F.3d at 118 n. 17);
Jackson, 191 F.3d at 663 (the standard is not whether a specific employee reported all of the
offensive conduct of co-workers; instead, the employee must demonstrate that the employer
knew or should have known of the offending conduct and the finder of fact may consider all of
the direct and circumstantial evidence that has a bearing on what the employer should have
known under the circumstances); Torres, 116 F.3d at 634 n. 9 (“An employer can be held liable
if it had constructive notice of the harassment, that is, if officials sufficiently high in the
management hierarchy should have gained knowledge of it through the exercise of reasonable
care.”). The information plaintiff reported to Seftas and his observations of how her co-workers
interacted with her adds an additional level of information from which the finder of fact my
assess what defendant knew or should have known about the duration and degree of harassment
in plaintiff's workplace.
Plaintiff also reported instances where additional information about previously reported
harassment came to light and/or the harassment continued notwithstanding a prior report. This
evidence as well as the pattern from the investigations defendant did conduct may well persuade
the finder of fact that defendant knew or should have known about far more instances of
harassment than it admits.
The record also will support a finding that plaintiff's attempts to quell the harassment by
making formal complaints with defendant's management were not given more than superficial
consideration; and the repeated treatment of plaintiff's complaints in this manner had the result of
emboldening her harassers as well as signaling to others that they could join in the harassment
with little or no repercussion. Marafiote had the responsibility of fielding and investigating the
complaints from the Pittsburgh district and most if not all of plaintiff's formal complaints
eventually made their way to him for formal development and resolution. Marafiote and those
supervisors working under him repeatedly interviewed only plaintiff and the alleged harasser
such as Ward or Usko and then concluded the situation was limited to a "he said, she said"
situation. Under company policy, Marafiote then dismissed the matter or only made a notation
of formal counseling in the alleged perpetrator's personnel file.
The fact finder could conclude Marafiote's insistence on independent, corroborating
evidence became known as defendant's standard response to plaintiff's complaints. And once it
became known that in the absence of independent evidence any inquiry would end with no
repercussion or such a minimal admonishment, the finder of fact might likewise infer that the
harassers soon came to believe there was little if any reason to be concerned about further or
more meaningful discipline if they continued to engage in offensive behavior. Compare Hall v.
Pennsylvania Dept. of Corrections, 2006 WL 2772551, *14 (M.D. of Pa., Sept. 25, 2006
(Vanaski, J.) ("The jury could conclude that the Department's investigation was inadequate and
had emboldened Baddick to persist in his discriminatory treatment. The Department's inaction
cannot shield it from liability.") (citing Fuller v. City of Oakland, 47 F.3d 1522, 1528-29 (9th
Cir. 1995) ("An employer whose sole action is to conclude that no harassment occurred cannot in
any meaningful sense be said to have 'remedied' what happened. Denial does not constitute a
remedy. Nor does the fact of investigation alone suffice; an investigation is principally a way to
determine whether any remedy is needed and cannot substitute for the remedy itself.")). Should
the finder of fact determine that defendant's approach fostered such ongoing harassment and
lacked any deterrent effect on others, it follows that it may likewise conclude that this state of
affairs constituted a form of negligence that contributed to the persistence and degree of ongoing
harassment in plaintiff's workplace. See Kidd v. Pennsylvania, 1999 WL 391496, *7 (E.D. Pa.
May 20, 1999) (Van Antwerpen, J.) (although defendant "investigated" each complaint of
harassment the plaintiff made, material issues of fact remained as to whether the remedial action
taken was “reasonably calculated to prevent further harassment” where the corrective measures
consisted of “speaking with” or “counseling” the accused individuals).
The finder of fact might also conclude that the internal mechanisms of defendant's anti-
harassment policy were not reasonably calculated to end or remediate the harassment that did
occur and defendant's failure to take active measures to correct the deficiencies reflected
negligence that contributed to the harassment plaintiff experienced. Indeed, Darocha essentially
testified that in the absence of "smoking gun" evidence that was independent from and
corroborated plaintiff's account, he was not going to credit any of plaintiff's complaints. He
explained that his "traditional American" upbringing prevented him from finding any credibility
in plaintiff's complaints. He stated: "I don't believe any part [of plaintiff's complaint(s)]
specifically. I just think from my own personal experience that it's a little far-fetched. I guess it
is just from my upbringing, that I just don't think something like that would go on in the world."
Doc. No. 47-1 at 123-124.
So with respect to any of plaintiff's sexual harassment complaints brought to or
proceeding through Darocha, who was the terminal manager at the Cranberry terminal, the finder
of fact may well conclude they were not taken at face value and meaningful investigation or
efforts to corroborate plaintiff were not thoroughly explored. As defendant's investigations made
clear, defendant always required corroborating evidence. And without corroborating evidence,
plaintiff's only recourse was to convince defendant's investigating supervisors of her word. But
as shown by his own testimony, Darocha had an innate resistance to taking a complaining female
such as plaintiff at her word. And defendant's company policy of requiring corroborating
evidence to move beyond a "he said, she said" situation could be found to suffer from similar
shortcomings.
Given this backdrop, the finder of fact may determine that based on defendant's repeated
approach, plaintiff effectively was discouraged from making formal complaints about ongoing
and/or additional harassment and under the existing circumstances it was reasonable for her to
forego making additional complaints about her harassers. The finder of fact could likewise
believe that this state of affairs diminished the level of defendant's understanding about the
workplace-generated harassment plaintiff was experiencing. It may also find that failing to judge
the credibility of plaintiff and the harasser in the absence of corroborating evidence fell short of
exercising reasonable care to correct and end the harassing behavior that was known. Compare
Vandergrift v. City of Philadelphia, 228 F. Supp.3d 464, 488 (E.D. Pa. 2017) (Kearney, J.)
(failure to pass on the credibility of the plaintiff, the alleged harassers and the witnesses created
"a genuine dispute of material fact as to whether the City properly responded to Ms. Vandegrift's
harassment allegations and whether it exercised reasonable care to correct the alleged
harassment."). Such findings would be more than sufficient to establish negligence on
defendant's behalf.
As to the fifth element, plaintiff's burden is to produce sufficient evidence to support a
finding that defendant knew or should have know of ongoing sexual harassment in the workplace
and negligently failed to take measures that were reasonably calculated to stop it. She has met
this burden.
Turning to retaliation, the record will support a finding that a retaliatory motive was a
determinative factor in plaintiff's termination. Plaintiff's retaliation claims are governed by the
tripartite McDonnell Douglas burden-shifting paradigm. See Fasold v. Justice, 409 F.3d 178 (3d
Cir. 2005) (PHRA retaliation claims follow Title VII's McDonell Douglas framework). Under
this paradigm, a plaintiff must first make out a prima facie case. Id. at 184. Once she does so,
the burden shifts to the defendant to articulate a legitimate, non-discriminatory rationale for the
challenged employment action. Id. If defendant articulates a non-discriminatory reason, it then
becomes the plaintiff's burden to prove, by a preponderance of the evidence, that the defendant's
stated reason for the challenged action is a pretext for unlawful discrimination. Id.
In this case, defendant challenges plaintiff's ability to establish a prima facie case or
genuine issue of material fact. To establish a prima facie case of retaliation, plaintiff must show
that (1) she engaged in a protected activity; (2) she was subject to adverse employment action;
and (3) that there is a causal connection between the protected activity and the adverse action
taken against her. Fasold, 409 F.3d at 188.
Here, plaintiff has established a prima facie case. First, she engaged in the protected
activity of reporting harassment in the workplace. Plaintiff orally registered multiple complaints
against Ward and Usko. Further, plaintiff filed a couple of ethics point complaints. She later
dual-filed a charge of discrimination with the EEOC and the PHRA. Second, plaintiff suffered
an adverse employment action when defendant terminated her. Third, there is sufficient evidence
for a factfinder to connect plaintiff's termination to her numerous complaints and the filing of a
charge of harassment.
Having established a prima facie case, the court now turns to the second step in the
McDonell Douglas framework. In response to plaintiff's prima facie showing of retaliation,
defendant successfully carries its burden to articulate a legitimate non-discriminatory rationale
for the adverse employment action.
Defendant maintains that it terminated plaintiff because she failed to renew her
HAZMAT certification. In support, it notes it permitted plaintiff to work on the dock from
February 6th to February 10th, and then afforded her thirty days of unpaid leave to renew her
certification. In the event plaintiff did not renew her certification in that time, defendant had
policies in place that permitted her to request an extension. Defendant and plaintiff agree that
plaintiff failed to follow this protocol, yet defendant still granted plaintiff the full ninety-day
window in which to renew her certification. Having failed to renew her certification in a timely
manner, defendant terminated plaintiff. Plaintiff appealed the termination and defendant granted
plaintiff a termination hearing. Plaintiff failed to attend the termination hearing, at which point
defendant made the termination final. As such, defendant has successfully articulated a non-
discriminatory reason for plaintiff's termination.
Shifting the burden back to plaintiff, "the plaintiff must point to some evidence, direct or
circumstantial, 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, 32 F.3d at
764. And more specifically as to a retaliation claim, the record must contain sufficient evidence
from which the finder of fact can link the materially adverse action to the retaliatory animus.
Moore v. City of Philadelphia, 461 F.3d 331, 346 (3d Cir. 2006). Two central factors are brough
into play: (1) the "temporal proximity" between the protected activity and the alleged retaliation
and (2) the existence of any "pattern of antagonism in the intervening period." Id.
Here, reviewing the record in the light most favorable to plaintiff, the record will permit a
factfinder to disbelieve defendant's articulated reasons. First, the close temporal proximity
between plaintiff filing her charge with the EEOC, defendant placing her on leave, and the
termination directly following the expiration of the leave will support an inference that defendant
utilized the certification requirement as pretext for terminating plaintiff. Plaintiff filed her EEOC
complaint in December of 2022 and defendant placed her on leave without pay in February of
2023. Her termination followed on the first day following the expiration of her leave. So the
timing of the events, the surrounding circumstances and the immediacy of the termination
present a scenario which authorizes the jury to pass on the reasons for the adverse employment
action.1
1 Defendant insists that a HAZMAT certification was an unconditional requirement for
maintaining employment as a DSR worker. But plaintiff may be able to proffer admissible
evidence to establish that two male DSRs worked on the docks and drove without their
Second, the record will support a finding that there was a pattern of antagonism in the
intervening period. Between plaintiff's filing a charge with the EEOC and her subsequent
placement on leave, an email dated January 9, 2023, from Seftas to Darocha flagged and
discussed an employee overhearing plaintiff expressing concern about discrimination in the
workplace. Further, plaintiff requested and defendant denied that she be permitted to continue
working on the dock or drive non-hazmat routes until her certification arrived; and while this
first appeared to be an option, defendant's position changed and plaintiff quickly was placed on
unpaid leave. And when plaintiff did not appear on one day's notice at the end of her unpaid
leave, defendant terminated her. Taken in concert, these facts and circumstances provide
sufficient evidence to permit a finding of a growing pattern of antagonism that will permit the
finder of fact to link plaintiff's firing with her complaints and charge of discrimination.
For the reasons set forth above, defendant’s motion for summary judgment will be
HAZMAT certifications. In this regard hearsay statements can be considered on a motion for
summary judgment only if they will be admissible at trial or are capable of being reduced to a
form of admissible evidence. Stelwagon Manufacturing Co. v. Tarmac Roofing Systems, Inc.,
63 F.3d 1267, 1275 n.17 (3d Cir. 1995) (citing Petruzzi's IGA Supermarkets Inc. v. Darling-
Delaware Co., 998 F.2d 1224, 1234 n.9 (3d Cir. 1993) and J.F. Fesser, Inc. v. Serv-a-portion,
Inc., 909 F.2d 1524, 1542 (3d Cir. 1990)). Because plaintiff may be able to establish this point
through defendant's witnesses or records, plaintiff's hearsay statements may be considered. In
addition, plaintiff asserts that HAZMAT certification was only required when transporting
hazardous materials. According to defendant's records, only one-third or fewer transports
involve hazardous materials. And defendant did permit plaintiff to work on the dock without the
certification before it transferred her to unpaid leave. Given these facts, there is enough
circumstantial evidence to support a factfinder in disbelieving that defendant fired plaintiff
because it unequivocally required all DSRs to maintain a HAZMAT certification. And this
finding of disbelief will then permit the factfinder to conclude that a retaliatory motive was a
determinative factor in the termination.
denied. An appropriate order will follow.
Date: August 17, 2026
s/David Stewart Cercone
David Stewart Cercone
Senior United States District Judge
cc: Gabrielle Shaulis, Esquire
David Spear, Esquire
Terri Patak Esquire
(Via CM/ECF Electronic Mail)