PAGAN v. HOLDER

im as gender stereotyping. Prowel, 579 F.3d at 292; Dawson v. Bumble Bumble, 398 F.3d 211, 218 (2nd Cir. 2005). Accordingly, the Court will grant Defendants' Motion for Summary Judgment on Plaintiff's sexual orientation claim. D. Discrimination Based on Sex

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination because of an individual's sex, see 42 U.S.C. § 2000e-2(a)(1).

The analysis of a Title VII action with no direct evidence of discrimination follows the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973). First, the plaintiff must establish a prima facie case of discrimination by showing that (1) she is a member of a protected class, (2) she was qualified for the position, (3) she suffered an adverse employment action, and (4) circumstances exist that give rise to an inference of unlawful discrimination. Vernon v. A L Motors, 2010 WL 2089640, at *2 (3d Cir. May 26, 2010). Once the plaintiff has established a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the alleged discriminatory action. McDonnell Douglas, 411 U.S. at 802. Once the defendant does this, then plaintiff must present evidence that the proffered reason is pretextual. Id. at 804.

Plaintiff's sex discrimination claim depends on her allegation made to the EEOC investigator in 2005 that she was the only member of the recreation staff not to be trained and certified as a personal trainer. Plaintiff alleges that she was not given this opportunity because Conley told her "that's a guy position" and "all about lifting weights and exercising. That's for the guys." (Sunnergren Dec. Ex. C at 35) Plaintiff has failed to establish a prima facie case because she did not present evidence that she suffered an adverse employment action.

Although the record includes this quote, it does not establish who made this comment. The relevant page of Plaintiff's February 8, 2005 testimony to the EEOC investigator is missing from Exhibit C. Plaintiff asserts in her Response to Defendant's 56.1 Stat. that Conley made the statement. (Pl's Resp. ¶ 16) Despite the fact that Plaintiff cites to a nonexistent exhibit (Pl's Exhibit F) with an incorrect date (January 8, 2005), the Court assumes Plaintiff's statement to be correct.

An adverse employment action is "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Durham life Ins. Co. v. Evans, 166 F.3d 139, 152-53 (3d Cir. 1999) (quoting Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). An adverse employment action may also be found where an employee's earning potential has been substantially decreased and a significant disruption to her working conditions results. Id. at 153.

Plaintiff has not alleged that she has been fired, suspended, demoted, denied a requested promotion, or suffered any other loss of pay. Instead, Plaintiff details a series of workplace slights and petty grievances, including, inter alia, denied requests for days of annual leave, a three week delay in repairing an air conditioner, working alone in the gymnasium, having her personal belongings boxed up and removed from her former work station, supervisory reports of her failure to comply with policies, and not being told to go home early in a snow storm. These allegations, taken individually or collectively, do not constitute an adverse employment action. See, e.g., Clayton v. Pennsylvania Dept. of Welfare, 304 Fed. Appx. 104, 106-07 (3d Cir. 2008) (plaintiff's complaints of reduced on-call time, threat of furlough, change of work schedule, moved mailbox, denied bonus, removal of furniture from office, and failure to timely respond to grievances did not amount to adverse employment action); Nagel v. RMA, 513 F.Supp. 2d 383, 391 (E.D.Pa. 2007) (heated meeting with supervisor who made performance criticisms followed by tense and uncomfortable working environment is not adverse employment action); Mihalko v. Potter, 2003 WL 23319594, at *2, 6 (W.D.Pa. Dec. 12, 2003) (denying leave, issuing warnings, monitoring plaintiff at work, forcing plaintiff to work in unheated room, ordering other employees not to speak to plaintiff do not amount to adverse employment actions).

See supra note 7.

Plaintiff argues that she "suffered an adverse employment action when she was charged with being AWOL while out on medical leave due to a panic attack." (Pl's Opp. 14) However, the AWOL charge was removed once Plaintiff hired an attorney in the matter. (Defs' 56.1 Stat. ¶ 30) Plaintiff acknowledged that she needed to request permission to carry a negative balance on her sick leave and once she made such a request, it was granted. (Id. ¶ 30a, Anger Dec. Ex. B at 209-10) Given the prompt resolution of the AWOL issue and the fact that it did not change or alter Plaintiff's employment in any way, it cannot be an adverse employment action. See Rivers v. Potter, 2007 WL 4440880, at *4-5 (D.N.J. Dec. 18, 2007) (concluding that temporary letters of reprimand are not adverse employment actions because they are not permanently affixed to the employment file, and do not change or alter employment status).

Furthermore, the denial of Plaintiff's request for training as a personal trainer does not constitute an adverse employment action. There is no evidence that Plaintiff's work suffered as a result of her lack of training as a personal trainer or that such training was necessary for advancement in status or pay. See Rogers v. Alternative Resources Corp., 440 F.Supp. 2d 366, 375 (D.N.J. 2006) (granting summary judgment where plaintiff could not establish that a certain level of training was required for promotion, retention or financial benefit); Cf. Hodgkins v. Kontes Chemistry Life Sci. Product, 2000 WL 246422 at *19 (D.N.J. March 6, 2000) (denying summary judgment where training was necessary for job advancement and pay increases).

Plaintiff made a formal request for training as a personal trainer in September, 2004. (Sunnergren Dec. Ex. M at 312)

Because Plaintiff cannot demonstrate that she suffered an adverse employment action, summary judgment will be granted for Defendants on Plaintiff's discrimination on the basis of sex claim.

E. Sexual Harassment

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination because of an individual's sex, see 42 U.S.C. § 2000e-2(a)(1). An employer will be liable for hostile work environment sexual harassment when a plaintiff proves that: (1) she suffered intentional discrimination because of her sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected her; (4) the discrimination would have detrimentally affected a reasonable person of the same sex, in like position; and (5) a basis for respondeat superior liability. Kunin v. Sears Roebuck Co., 175 F.3d 289, 293 (3d Cir. 1999) (citing Andrews v. City of Phila., 895 F.2d 1469, 1482 (3d Cir. 1990)).

Title VII prohibits two types of sexual harassment: quid pro quo harassment and hostile work environment. Quid pro quo harassment occurs when sexual advances or sexual favors are made a condition of employment or when the submission to or rejection of such conduct is the basis of an employment decision. See 29 C.F.R. § 1604.11(a)(1)-(2). Plaintiff has not made any allegations of a quid pro quo claim; therefore, the Court will construe her sexual harassment count as a hostile work environment claim.

The Supreme Court has made it clear that "not all workplace conduct that may be described as `harassment'" is actionable under Title VII. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Sexual harassment is only actionable if the discriminatory conduct is "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Id. (internal quotations marks omitted). The "`mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee' would not affect the conditions of employment to a sufficiently significant degree to violate Title VII." Meritor, 477 U.S. at 67 (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). In assessing a hostile work environment claim, district courts should consider 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) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)).

Plaintiff has failed to make out a prima facie case of hostile work environment sexual harassment. First, Plaintiff admits that she "could point to no comment or action within the statutory time period that could be defined as sexual harassment." (Pl's Resp. ¶ 18) As discussed supra in Section III.C, Conley's alleged statements about Plaintiff's "lifestyle" and his alleged references to Plaintiff as a "lesbian" and "dyke" are not discrimination because of sex. Although Conley's alleged statement that Plaintiff could not be a personal trainer because of her gender is discrimination because of sex, it is not sufficiently severe or pervasive so as to create a hostile work environment. Therefore, Plaintiff has failed to establish a prima facie case.

A reasonable finder of fact could find that the bicycle handle incident could support a sexually offensive work environment; however, as Plaintiff acknowledged, this incident is not an actionable issue as it occurred prior to the year 2000 and was not reported to the EEOC. See supra pages 8-10 (discussion of administrative exhaustion requirement).

In her Opposition Brief, Plaintiff appears to be alleging a hostile work environment claim generally in addition to a hostile work environment claim resulting solely from sexual harassment. Count six of Plaintiff's Amended Complaint is a claim of sexual harassment, but the Amended Complaint contains no count for a hostile work environment on any other basis.
The whole of Plaintiff's argument in support of the general hostile work environment claim is as follows: "[Plaintiff] found the workplace to be hostile and abusive, as evidenced by her panic attack. It caused a tangible psychological injury. An injury that cause [sic] [Plaintiff] to be out of work for approximate [sic] three and one-half months." (Pl's Opp. 18) Plaintiff's subjective belief that the work environment is hostile along with the mere fact of her panic attack are insufficient to support a hostile work environment claim. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993) (To be actionable under Title VII, hostile work environment must be subjectively and objectively abusive). To the extent that Plaintiff alleges a hostile work environment claim separate from her sexual harassment claim, the Court grants summary judgment in favor of Defendants on such a claim.

Accordingly, the Court will grant summary judgment in favor of Defendants on Plaintiff's sexual harassment claim.

F. Retaliation

Title VII prohibits retaliation for opposing an unlawful employment practice. See 42 U.S.C. § 2000e-3. To establish a prima facie case of retaliation under Title VII, a plaintiff must prove that (1) she engaged in protected activity, (2) an employer took an adverse action against her, and (3) there was a causal connection between her participation in the protected activity and the adverse action. Wilkerson v. New Media Tech. Charter School, Inc., 522 F.3d 315, 320 (3d Cir. 2008).

The adverse action must be "materially adverse" such that it would "dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). This standard is intended to distinguish significant from trivial harms. Id. "An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience." Id.

As discussed supra in Section III.D, Plaintiff has failed to allege an adverse employment action, let alone a materially adverse action. Accordingly, summary judgment will be granted for the Defendants on Plaintiff's retaliation claim.

IV.

For the reasons stated above, Defendants' Motion for Summary Judgment will be granted. An appropriate Order accompanies this Opinion.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Dkt. No. 34)

This matter having appeared before the Court upon Defendants' Motion for Summary Judgment (Dkt. No. 34), the Court having considered the submissions of the parties, for the reasons set forth in an Opinion issued by this Court on even date herewith, and for good cause appearing; IT IS on this 5th day of October, 2010,

ORDERED THAT:

(1) Defendants' Motion for Summary Judgment is hereby GRANTED.

(2) The Clerk of Court is hereby directed to CLOSE THIS FILE.