Tracy Szyper v. American Medical Response Mid

• Court: Court of Appeals for the Third Circuit
• Decided: March 22, 2023
• Docket: 21-3272
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 21-3272 _____________

TRACY SZYPER, Appellant v.

AMERICAN MEDICAL RESPONSE MID-ATLANTIC, INC.; AMERICAN MEDICAL RESPONSE, INC.; LESLIE BROCK, as aider and abettor _____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-20-cv-04642) District Judge: Honorable Chad F. Kenney _____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) February 2, 2023 _____________

Before: HARDIMAN, KRAUSE, and MATEY, Circuit Judges.

(Filed: March 22, 2023) _____________

OPINION* _____________

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. MATEY, Circuit Judge.

Tracy Szyper appeals the District Court’s grant of summary judgment denying her

gender discrimination claims against American Medical Response (“AMR”) and Leslie

Brock. Because the District Court correctly found the alleged harassment was not severe

or pervasive enough to create a hostile work environment, we will affirm.

I.

AMR hired Szyper to work as an emergency medical technician. App. 82. About a

month after Szyper started, Leslie Brock, a more senior employee, grabbed Szyper’s

wrist and made two crude and offensive sexual comments.1 App. 213–14. Szyper filed a

complaint and was interviewed by Daniel Brown, AMR’s operations manager in charge

of AMR’s Essington Avenue location, and Sonsaraye Byers, an AMR human resources

generalist. App. 92, 271. Szyper alleged no other incidents of harassment by Brock or

any other AMR employees.

Byers recommended Brock’s termination. App. 169–170. Brown preferred

sanctions short of firing, a conclusion shared by Edward Powers, the AMR regional

director responsible for Brock’s discipline. App. 60–61. AMR issued Brock a “Final

Written Warning” for inappropriate behavior, punishment just short of termination. App.

1 Szyper documented the incident in a report recounting that “Brock had told me to cover my ears. I looked at him & said jokingly ‘I’m not listening to you anyway.’ He asked me again to cover my ears. I cupped my hands over my ears but could still hear what was said. Brock said to [two other employees], ‘that made my dick hard.’ I uncupped my hands and told him I heard what he said. Brock then proceeded to grab me by my wrist and say something along the lines of ‘Help me fix my problem.’ I told him to ‘get the fuck off me.’ I proceeded to put my cigarette out and go back inside. This incident made me feel extremely uncomfortable.” App. 213–14. 2 209. Szyper resigned from AMR as a result, stating she could not continue working with

Brock. App. 277.

Szyper sued AMR under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e, et seq. (“Title VII”); the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. §

951, et seq. (“PHRA”); and the Philadelphia Fair Practices Ordinance, Phila. Code § 9-

1100, et seq. (“PFPO”), alleging that the incident created a hostile work environment.

She also sued Brock under the PHRA and PFPO, alleging that he aided and abetted

AMR’s sex discrimination. The District Court granted the Defendants’ motions for

summary judgment on all claims “because the record evidence, even when viewed in the

light most favorable to Plaintiff, does not establish that the alleged harassment was

sufficiently ‘severe or pervasive’ to rise to the level of a Title VII or PHRA violation.”

App. 9. Szyper appeals.2

II.

“Under Title VII, an employer may not ‘discharge [or] . . . discriminate against

any individual with respect to . . . compensation, terms, conditions, or privileges of

employment because of such individual’s . . . sex.’” Huston v. Procter & Gamble Paper

Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (quoting 42 U.S.C. § 2000e-2(a)(1)).

Title VII prohibits sexual harassment in the workplace that is “sufficiently severe or

2 The District Court had jurisdiction under 28 U.S.C. § 1331 and § 1367 and we have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s grant of summary judgment de novo and affirm if the record contains no genuine issue of material fact. Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). We view the facts in the light most favorable to the nonmoving party, drawing “reasonable inferences” in her favor. Scott v. Harris, 550 U.S. 372, 378 (2007). 3 pervasive to alter the conditions of [the plaintiff’s] employment and create an abusive

working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)

(citation and quotation marks omitted). Hostile work environment claims require a

“plaintiff [to] 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.” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013) (citation

omitted).3

We agree with the District Court that Szyper did not show that Brock’s conduct

was sufficiently “severe or pervasive” as to “alter the conditions of [her] employment and

create an abusive working environment.” Meritor Sav. Bank, FSB, 477 U.S. at 67

(citation and quotation marks omitted). When assessing hostility or abusiveness, courts

must look “at all the circumstances,” such as 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.” Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998) (citation

omitted). “[O]ffhand comments[ ] and isolated incidents (unless extremely serious) will

not amount to discriminatory changes in the ‘terms and conditions of employment.’” Id.

at 788.

3 Hostile work environment claims under the PHRA and the PFPO are governed by the same standards as Title VII claims. See, e.g., Huston, 568 F.3d at 104 n.2. 4 Szyper complains of one instance of offensive conduct and concedes that Brock

never acted inappropriately toward her before or after. App. 214. As the incident was

isolated, the conduct must have been “extremely serious” to create a hostile work

environment. Id. Szyper has not shown that. The circumstances reveal an unquestionably

offensive and distasteful action by a more senior employee. But courts have regularly

held that more severe actions fall short of the severity required by Title VII. See, e.g.,

Bowman v. Shawnee State Univ., 220 F.3d 456, 463–65 (6th Cir. 2000) (supervisor’s

offensive touching not severe enough to create hostile work environment); Adusumilli v.

City of Chicago, 164 F.3d 353, 361–62 (7th Cir. 1998) (supervisor’s four incidents of

improper contact and sexual comments to subordinate did not establish a hostile work

environment).

Considering all material facts and drawing reasonable inferences in Szyper’s

favor, the District Court correctly concluded that “[l]ooking at the totality of the

circumstances in this case, the single incident alleged was not severe enough to be sexual

harassment.” App. 12. So summary judgment to AMR was proper because Szyper’s sex-

based hostile work environment claims fail under Title VII—and thus also under the

PHRA and PFPO. Huston, 568 F.3d at 104 n.2. And because those claims served as

predicate violations for her PHRA and PFPO claims against Brock, summary judgment

was proper for them as well. See 43 Pa. Cons. Stat. § 955(e) (prohibiting the aiding or

abetting of “any act declared by this section to be an unlawful discriminatory practice”).

III.

For these reasons, we will affirm.