IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA SUSAN MERRITTS, : Civil No. 1:17-CV-01881 : Plaintiff, : : v. : : COMMONWEALTH OF : PENNSYLVANIA, et al., : : Defendants. : Judge Jennifer P. Wilson MEMORANDUM This is an employment discrimination case brought by a former employee of the State Correctional Institution in Houtzdale, Pennsylvania (“SCI Houtzdale”). Before the court is Defendants’ motion for summary judgment. For the reasons that follow, the motion is granted in part and denied in part. FACTUAL BACKGROUND AND PROCEDURAL HISTORY1 Plaintiff Susan Merritts began working at SCI Houtzdale on January 26, 2015. (Doc. 40 ¶ 1; Doc. 43 ¶ 1.) During her employment at SCI Houtzdale, Merritts worked in the food services department. (Doc. 40 ¶ 3; Doc. 43 ¶ 3.) Some of her male coworkers, including Sean Lantz, Joseph Smychynsky, Dal Thompson, Yontosh, and Yarger, repeatedly asked her why a woman would want
1 The facts in this section are undisputed and are primarily derived from the Defendants’ statement of material facts and the Plaintiff’s response to the statement of material facts. (See Docs. 40, 43.) Where applicable, facts have also been taken from the complaint and answer, see Docs. 1, 6, or from transcripts of depositions. to work in a prison and why her husband allowed her to work in a prison. (Doc. 40 ¶¶ 11, 13, 17; Doc. 43 ¶¶ 11, 13, 17.) In addition to these comments, the male
coworkers also made sexual comments around Merritts, including comments about anal sex and oral sex. (See Merritts Deposition at 81:6–15.)2 The comments by her male coworkers led her to speak with her supervisors about the way she was
treated. (Doc. 40 ¶¶ 14, 39; Doc. 43 ¶¶ 14, 39.) One of her supervisors advised her to try to get along with the male coworkers. (Doc. 40 ¶ 18; Doc. 43 ¶ 18.) In addition to the comments directed towards Merritts, one of the male employees of the prison told another female employee, Bloom, to “get me a cup of
coffee while you’re up” during a time when the employees were sitting in the break room. (Doc. 40 ¶ 20; Doc. 43 ¶ 20.) Bloom got the cup of coffee, which prompted a male employee to tell Merritts that she should take a lesson from
Bloom. (Doc. 40 ¶¶ 20–21; Doc. 43 ¶¶ 20–21.) Male employees also often refused to help female employees with clean-up at the end of shifts. (Doc. 1 ¶ 15; Doc. 40 ¶ 38.) Based on the treatment Merritts received from her male coworkers, she
approached her supervisor, Don Sharp, about filing a sexual harassment complaint. (Doc. 40 ¶ 46; Doc. 43 ¶ 46.) Multiple male coworkers overheard this
2 The Merritts deposition is docketed at Doc. 46-15. conversation. (Id.) After Merrritts filed her complaint with the prison, another female employee approached Merritts and told her that the male coworkers might
lose their jobs as a result of Merritts’s complaint. (Doc. 40 ¶ 29; Doc. 43 ¶ 29.) During her employment at SCI Houtzdale, Merritts was twice reprimanded for improper radio use. (Doc. 40 ¶¶ 41–44; Doc. 43 ¶¶ 41–44.) In one such
instance, she was reprimanded for making generalized requests for help over the radio instead of directing her communications to individual people. (Doc. 40 ¶ 41; Doc. 43 ¶ 41.) Merritts was additionally reprimanded on one occasion for leaving her work area unsupervised and on another occasion for failing to follow food
preparation procedures. (Doc. 40 ¶¶ 47, 51–52; Doc. 43 ¶¶ 47, 51–52.) Merritts was unaware whether other employees were reprimanded for the same or equivalent conduct as the conduct that led to her reprimands. (Doc. 40 ¶ 54; Doc.
43 ¶ 54.) Merritts was placed on a performance improvement plan in July 2015. (Doc. 1 ¶ 26; Doc. 6 ¶ 26.) She was then suspended without pay based on accusations from male employees that she had violated prison policy by sharing
personal information with inmates and using the middle finger hand gesture. (Doc. 1 ¶ 27; Doc. 6 ¶ 27.) The accusation that Merritts had shared personal information was based on a conversation she had had with an inmate in which she stated that
she had gone boating one weekend on Raystown Lake. (Doc. 40 ¶ 33; Doc. 43 ¶ 33.) Merritts remained on unpaid suspension until her employment at SCI Houtzdale was terminated on October 20, 2015. (Doc. 1 ¶ 10; Doc. 6 ¶ 10.)
Following her termination, Merritts filed suit in this district on October 16, 2017, naming as defendants the Commonwealth of Pennsylvania and the Pennsylvania Department of Corrections (“DOC”), and raising causes of action for
sex discrimination, hostile work environment, and retaliation under both Title VII of the Civil Rights of 1964 and the Pennsylvania Human Relations Act (“PHRA”). (Doc. 1.) Defendants answered the complaint on December 8, 2017. (Doc. 6.) Following the conclusion of discovery, Defendants moved for summary judgment
on October 16, 2019, and filed a statement of material facts in conjunction with the motion on the same day. (Docs. 38, 40.) Merritts responded to the statement of material facts on October 30, 2019. (Doc. 43.) Defendants filed a brief in support
of the motion on November 15, 2019, Merritts filed an opposition brief on December 5, 2019, and Defendants filed a reply brief on December 27, 2019. (Docs. 44–45, 52.) With briefing on the motion having concluded, the motion is now ripe for the court’s disposition.
JURISDICTION This court has jurisdiction under 28 U.S.C. § 1331, which allows a district court to exercise subject matter jurisdiction in civil cases arising under the
Constitution, laws, or treaties of the United States, and 28 U.S.C. § 1367, which gives district courts supplemental jurisdiction over state law claims that are so closely related to federal claims as to be part of the same case or controversy.
STANDARD OF REVIEW A court may grant a motion for summary judgment when “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 dispute of fact is material if resolution of the dispute “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not precluded by “[f]actual disputes that are irrelevant or unnecessary.” Id. “‘A
dispute is genuine if a reasonable trier-of-fact could find in favor of the nonmovant’ and ‘material if it could affect the outcome of the case.’” Thomas v. Tice, 943 F.3d 145, 149 (3d Cir. 2019) (quoting Lichtenstein v. Univ. of Pittsburgh
Med. Ctr., 691 F.3d 294, 300 (3d Cir. 2012)). In reviewing a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288
(3d Cir. 2018) (citing Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006)). The court may not “weigh the evidence” or “determine the truth of the matter.” Anderson, 477 U.S. at 249. Instead, the court’s role in reviewing the facts of the case is “to determine whether there is a genuine issue for trial.” Id.
The party moving for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The non-moving party must then oppose the motion, and in doing so “‘may not rest upon the mere allegations or
denials of [its] pleadings’ but instead, ‘must set forth specific facts showing that there is a genuine issue for trial. Bare assertions, conclusory allegations, or suspicions will not suffice.’” Jutrowski, 904 F.3d at 288–89 (quoting D.E. v. Cent.
Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir. 2014)). Summary judgment is appropriate where the non-moving party “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.”
Celotex, 477 U.S. at 322. “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “Where
the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
DISCUSSION Merritts’s claims are brought under Title VII and the PHRA. Because claims under the two statutes are governed by “essentially the same legal
standards,” the court will analyze them together. Connelly v. Lane Constr. Corp., 809 F.3d 780, 791 n.8 (3d Cir. 2016) (citing Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 317 n.3 (3d Cir. 2000)). The court will first analyze Merritts’s sex discrimination claim before moving on to her hostile work environment and
retaliation claims. A. Defendants Are Not Entitled to Summary Judgment as to Merritts’s Sex Discrimination Claim
Defendants argue there is insufficient evidence for the sex discrimination claim to proceed to trial and that they had a legitimate nondiscriminatory reason for their treatment of Merritts. (See Doc. 44 at 10–13.) Merritts disputes this argument, arguing that there is sufficient evidence for her discrimination claim to go to trial. (Doc. 45 at 8–11.) Title VII makes it an unlawful employment practice for an employer “to fail
or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Here, because Merritts’s claim is based on circumstantial evidence of discrimination, it is governed by the McDonnell
Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The McDonnell Douglas framework contains three steps. At the first step, the plaintiff must establish a prima facie case of discrimination. Burton
v. Teleflex, Inc., 707 F.3d 417, 426 (3d Cir. 2013). If the plaintiff meets that burden, the burden of production shifts to the defendants to offer a legitimate nondiscriminatory reason for the adverse treatment of the plaintiff. Id. The burden then shifts back to the plaintiff to show that the proffered nondiscriminatory reason
was a pretext for discrimination. Id. at 427. To establish a prima facie case of sex discrimination at the first step of the McDonnell Douglas framework, a plaintiff must show (1) that she is a member of a
protected class, (2) that she was qualified for the position she had, (3) that she suffered an adverse employment action, and (4) that “the action occurred under circumstances that could give rise to an inference of intentional discrimination.” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 169 (3d Cir. 2013) (quoting
Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008)). At the summary judgment stage, the plaintiff’s burden is to show that there is sufficient evidence “to convince a reasonable factfinder to find all of the elements of the prima facie case.” Burton, 707 F.3d at 426 (quoting Duffy v. Paper Magic Grp., Inc., 265 F.3d 163, 167 (3d Cir. 2001)).
Here, the court finds that Merritts has met her burden to establish a prima facie case of sex discrimination. It is undisputed that Merritts is a member of a protected class and that she was qualified for the position that she had. It is also
clear that she suffered adverse employment actions when she was suspended without pay and subsequently terminated. Finally, there is sufficient evidence for a finder of fact to conclude that the adverse employment actions “occurred under circumstances that could give rise to an inference of intentional discrimination.”
Mandel, 706 F.3d at 169. For example, Merritts’s coworkers questioned why a woman would want to work in a prison and asked her why her husband allowed her to work in a prison. (Doc. 40 ¶¶ 11, 13, 17; Doc. 43 ¶¶ 11, 13, 17.) Her
supervisors were made aware of these comments, and, rather than taking action against the male employees, one of her supervisors advised her to try to get along with the male employees. (Doc. 40 ¶¶ 14, 18, 39; Doc. 43 ¶¶ 14, 18, 39.) Viewing the facts in the light most favorable to Merritts as the non-movant, the court finds
that such inaction and seeming acquiescence by the supervisors regarding the comments by her male coworkers could support an inference of intentional discrimination. See, e.g., Andrews v. City of Phila., 895 F.2d 1469, 1479 (3d Cir.
1990) (finding that supervisor’s “boys will be boys” response to female employee’s complaints of sexual harassment supported an inference of discrimination), superseded by statute in nonrelevant part, 42 U.S.C. § 1981;
accord McLaughlin v. Rose Tree Media Sch. Dist., 52 F. Supp. 2d 484, 491 (E.D. Pa. 1999); Hurley v. Atlantic City Police Dep’t, 933 F. Supp. 396, 401 (D.N.J. 1996).
Because Merritts has established a prima facie case of sex discrimination, the burden shifts to Defendants to offer a legitimate nondiscriminatory reason for the adverse employment actions. Burton, 707 F.3d at 426. “This burden is ‘relatively light’ and is satisfied if the employer provides evidence, which, if true,
would permit a conclusion that it took the adverse employment action for a non- discriminatory reason.” Id. (quoting Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006)).
In this case, Defendants have met their burden of showing a legitimate nondiscriminatory reason for the adverse actions against Merritts because they have offered evidence that Merritts was reprimanded on multiple occasions for using her radio improperly, leaving her work area unsupervised, and failing to
follow food preparation procedures. (See Doc. 40 ¶¶ 41–44, 47, 51–52; Doc. 43 ¶¶ 41–44, 47, 51–52.) There is also evidence in the record from which a reasonable finder of fact could conclude that Merritts’s suspension and subsequent termination were due to her violating prison policies by sharing personal information with inmates and using the middle finger hand gesture. (Doc. 1 ¶ 27; Doc. 6 ¶ 27.)
Accordingly, the burden shifts back to Merritts to show that the proffered nondiscriminatory reason was a pretext for sex discrimination. Burton, 707 F.3d at 427. To meet her burden at this stage, a 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.” Id. (quoting Fuentes v. Perskie, 32
F.3d 759, 764 (3d Cir. 1994)). Merritts has met her burden at the third stage of the McDonnell Douglas framework. Although her suspension and termination were ostensibly based on
her sharing personal information with inmates and using the middle finger gesture, there is evidence in the record from which a reasonable finder of fact could conclude that male coworkers engaged in similar conduct without getting suspended or fired. (See Merritts Deposition at 43:21–24 (testimony that male
coworkers talked to inmates about attending football games), 81:6–15 (testimony that male coworkers often made comments about anal sex and oral sex). Accordingly, because there is sufficient evidence in the record for a reasonable
finder of fact to find that Defendants discriminated against Merritts on the basis of sex, the court will deny Defendants’ motion for summary judgment as to that claim.
B. Defendants Are Entitled to Summary Judgment as to Merritts’s Hostile Work Environment Claim
The court will next address Merritts’s claim that she was subjected to hostile work environment harassment in violation of Title VII and the PHRA. Defendants argue they are entitled to summary judgment as to this claim because there is insufficient evidence for Merritts to prove the claim. (Doc. 44 at 15–18.) Defendants additionally advance a Faragher-Ellerth defense,3 arguing that they are entitled to summary judgment because they took reasonable steps to prevent harassment. (Id. at 19–22.) Merritts argues that her hostile work environment
claim should survive summary judgment and that there are genuine issues of material fact regarding Defendants’ Faragher-Ellerth defense. (Doc. 45 at 12–13.) To establish a hostile work environment claim, a plaintiff must establish that
“1) the employee suffered intentional discrimination because of his/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 in like circumstances, and 5) the existence of respondeat superior liability.”
3 The Faragher-Ellerth defense is available when an employer takes reasonable steps to prevent and correct harassment and depends on whether the plaintiff avails herself of available preventive and corrective remedies. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Minarsky v. Susquehanna Cty., 895 F.3d 303, 310 (3d Cir. 2018) (quoting Mandel, 706 F.3d at 167).
For harassment to be sufficiently severe to support a hostile work environment claim, “it must alter the conditions of the employee’s employment and create an abusive working environment.” Moody v. Atl. City Bd. of Educ., 870
F.3d 206, 214 (3d Cir. 2017) (internal alterations omitted) (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986)). To determine whether this is the case, a court must analyze the circumstances surrounding the alleged harassment, “including the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. at 215 (quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270–71 (2001)). Mere
offensive comments are generally insufficient to establish a hostile work environment claim. See, e.g., Greer v. Mondelez Global, Inc., 590 F. App’x 170, 173 (3d Cir. 2014) (“‘Mere offensive utterances’ are insufficient to create a hostile environment, even if they engender offensive feelings in an employee.” (quoting
Faragher, 524, U.S. at 786)); cf. Ali v. Woodbridge Twp. Sch. Dist., 957 F.3d 174, 181 (3d Cir. 2020) (concluding under New Jersey Law Against Discrimination that “[u]tterances that are merely offensive do not rise to the level of unreasonably interfering with an employee’s job performance,” and noting that NJLAD is subject to the same standards of liability as Title VII).
In this case, Merritts’s hostile work environment claim is based solely on offensive comments made by her male coworkers. Specifically, Merritts’s male coworkers repeatedly asked her why a woman would want to work in a prison and
why her husband allowed her to work in a prison. (Doc. 40 ¶¶ 11, 13, 17; Doc. 43 ¶¶ 11, 13, 17.) Merritts also testified that the male coworkers made frequent comments about anal sex and oral sex. (Merritts Deposition at 81:6–15.) Those comments, although clearly offensive and inappropriate in the workplace, do not
rise to the level of severity necessary to support a hostile work environment claim. See Ali, 957 F.3d at 181; Greer, 590 F. App’x at 173; see also, e.g., Grassmyer v. Shred-It USA, Inc., 392 F. App’x 18, 25, 30 (3d Cir. 2010) (holding that comments
were not sufficiently severe to support hostile work environment claim where male supervisor regularly made sexually explicit and offensive comments in the workplace). Accordingly, the court will grant Defendants’ motion for summary judgment with regard to Merritts’s hostile work environment claim.
C. Defendants Are Not Entitled to Summary Judgment as to Merritts’s Retaliation Claim
Finally, the court will analyze whether Defendants are entitled to summary judgment as to Merritts’s retaliation claim. Defendants argue they are entitled to summary judgment as to the retaliation claim because there is insufficient evidence to support such a claim, because they had legitimate nonretaliatory reasons for their treatment of Merritts, and because the decision to terminate Merritts would
have been made regardless of whether any retaliation occurred. (Doc. 44 at 24– 30.) Merritts argues the claim should go forward because she has produced sufficient evidence to support an inference of retaliation. (Doc. 45 at 14.)
To establish a prima facie case of retaliation, a plaintiff must show (1) that she engaged in protected employee activity; (2) that the employer took an adverse action against the employee either after or contemporaneous with the employee’s protected activity; and (3) that there was a causal connection between the
employee’s protected activity and the employer’s adverse action. Moody, 870 F.3d at 220 (internal alterations omitted) (quoting Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015)). In determining whether there is a causal connection
between the plaintiff’s protected activity and the retaliatory action, a court considers a “broad array of evidence.” Daniels, 776 F.3d at 196 (quoting LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007)). A causal connection can be established by an “unusually suggestive” temporal proximity
between the protected activity and the retaliatory action. Id. (quoting LeBoon, 503 F.3d at 232). The “circumstances as a whole” can also establish a causal connection, including “any intervening antagonism by the employer,
inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action.” Id. (quoting LeBoon, 503 F.3d at 232–33.)
In a case such as this one where there is no direct evidence of retaliation, a court analyzes a plaintiff’s claim under the McDonnell Douglas burden-shifting framework. Id. at 193. Thus, once a plaintiff establishes a prima facie case of
retaliation, the burden of production shifts to the employer to offer a legitimate nonretaliatory reason for the adverse action against the plaintiff. Id. “If the employer advances such a reason, the burden shifts back to the plaintiff to demonstrate that ‘the employer’s proffered explanation was false, and that
retaliation was the real reason for the adverse employment action.’” Id. (quoting Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007)). Here, Merritts has established a prima facie case of retaliation. Merritts
engaged in protected conduct by complaining about her coworkers’ comments to her supervisor. “[P]rotected ‘opposition’ activity includes not only an employee’s filing of formal charges of discrimination against an employer but also ‘informal protests of discriminatory employment practices, including making complaints to
management.’” Id. (quoting Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 135 (3d Cir. 2006)). She has also shown an adverse action through her suspension and subsequent termination. See Abramson v. William
Paterson Coll. of N.J., 260 F.3d 265, 288 (3d Cir. 2001) (holding that termination constituted adverse employment action). Finally, there is sufficient evidence in the record for a reasonable finder of fact to find a causal connection between her
protected conduct and her subsequent termination. Specifically, there is evidence from which a finder of fact could conclude that at least one male employee overheard Merritts’s sexual harassment complaint, that other employees were
aware that Merritts had made a complaint, and that male employees accused her of violating prison policy after she had made the complaint despite other employees frequently engaging in similar conduct. (See Doc. 40 ¶¶ 27, 29, 33, 46; Doc. 43 ¶¶ 27, 29, 33, 46; Merritts Deposition at 43:21–24, 81:6–15.)
The burden accordingly shifts to Defendants to offer a legitimate nonretaliatory reason for the adverse employment action taken against Merritts. Daniels, 776 F.3d at 193. Defendants have met that burden here. As noted above,
there is evidence in the record from which a finder of fact could conclude that Merritt’s termination was due to her improper use of her radio, leaving her work area unsupervised, failing to follow food preparation procedures, sharing personal information with inmates, and using the middle finger hand gesture while at work.
(See Doc. 40 ¶¶ 27, 41–44, 47, 51–52; Doc. 43 ¶¶ 27, 41–44, 47, 51–52.) At the third step of the McDonnell Douglas framework, Merritts must produce evidence from which a reasonable finder of fact could conclude that
retaliation was the real reason for the adverse employment action. Daniels, 776 F.3d at 193. She has met that burden because, as noted above, a reasonable finder of fact could conclude that the allegations that she had violated prison policy were
made in retaliation for her sexual harassment complaints and that other employees were not disciplined for conduct that was similar to the conduct that led to her termination. (See Doc. 40 ¶¶ 27, 29, 33, 46; Doc. 43 ¶¶ 27, 29, 33, 46; Merritts
Deposition at 43:21–24, 81:6–15.) Accordingly, the court will deny Defendants’ motion for summary judgment with regard to Merritts’s retaliation claim. CONCLUSION For the foregoing reasons, Defendants’ motion for summary judgment is
granted in part and denied in part. An appropriate order follows. s/Jennifer P. Wilson JENNIFER P. WILSON United States District Court Judge Middle District of Pennsylvania
Dated: June 12, 2020