HARDIMAN, Circuit Judge.
This interlocutory appeal requires us to decide whether it is constitutional for jails to strip search arrestees upon their admission to the general population. Although the question is one of first impression for this Court, the Supreme Court's decision in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), and the many cases that followed it inform our analysis.
In Bell, the Supreme Court rejected a Fourth Amendment challenge to a policy of visual body cavity searches for all detainees — regardless of the reason for their incarceration — after contact visits with outsiders. Id. at 560, 99 S.Ct. 1861. The Court applied a balancing test and concluded that the visual body cavity searches were reasonable because the prison's security interest justified the intrusion into the detainees' privacy.
Since Bell was decided, ten circuit courts of appeals applied its balancing test and uniformly concluded that an arrestee charged with minor offenses may not be strip searched consistent with the Fourth Amendment unless the prison has reasonable suspicion that the arrestee is concealing a weapon or other contraband. Things changed in 2008, however, when the en banc Court of Appeals for the Eleventh Circuit reversed its prior precedent and held that a jail's blanket policy of strip searching all arrestees upon entering the facility was reasonable even in the absence of individualized suspicion. Powell v. Barrett, 541 F.3d 1298, 1314 (11th Cir. 2008) (en banc). A year later, the en banc Court of Appeals for the Ninth Circuit also reversed its prior precedent and upheld a blanket policy of strip searching all arrestees before they enter San Francisco's general jail population. Bull v. City and County of San Francisco, 595 F.3d 964, 975 (9th Cir. 2010) (en banc).
Confronted with a clear dichotomy between the en banc decisions of the Ninth and Eleventh Circuits on the one hand and the numerous cases that preceded them on the other, we must determine which line of cases is more faithful to the Supreme Court's decision in Bell.
I. A.
We begin with the facts surrounding the arrest and detention of lead Plaintiff Albert Florence. On March 3, 2005, a New Jersey state trooper stopped the car in which Florence was a passenger and arrested him based on an April 25, 2003 bench warrant from Essex County. The warrant charged Florence with a non-indictable variety of civil contempt. Though Florence protested the validity of the warrant by insisting he had already paid the fine on which it was based, he was arrested and taken to the Burlington County Jail (BCJ).
According to Florence, he was subjected to a strip and visual body-cavity search by corrections officers at BCJ. During the jail's intake process, Florence was directed to remove all of his clothing, then open his mouth and lift his tongue, hold out his arms and turn around, and lift his genitals. The officer conducting the search sat approximately arms-length in front of him, and directed Florence to shower once the search was complete. Florence was held at BCJ for six days.
During Florence's sixth day at BCJ, the Essex County Sheriffs Department took custody of him and transported him to the Essex County Correctional Facility (ECCF). Florence alleges that he was subjected to another strip and visual body-cavity search upon his arrival at ECCF. As described by Florence, he and four other detainees were instructed to enter separate shower stalls, strip naked and shower under the watchful eyes of two corrections officers. After showering, Florence was directed to open his mouth and lift his genitals. Next, he was ordered to turn around so he faced away from the officers and to squat and cough. After donning ECCF-issued clothing and visiting a nurse, Florence joined the general jail population until the following day, when the charges against him were dismissed.
After his release, Florence sued BCJ, ECCF, and various individuals and municipal entities (collectively, the Jails) under 42 U.S.C. § 1983. While Florence asserted numerous constitutional claims, the only claim germane to this appeal is his Fourth Amendment challenge to the strip search procedures at BCJ and ECCF.
B.
On March 20, 2008, the District Court granted Florence's motion for class certification, defining the plaintiff class as:
All arrestees charged with non-indictable offenses who were processed, housed or held over at Defendant Burlington County Jail and/or Defendant Essex County Correctional Facility from March 3, 2003 to the present date who were directed by Defendants' officers to strip naked before those officers, no matter if the officers term that procedure a "visual observation" or otherwise, without the officers first articulating a reasonable belief that those arrestees were concealing contraband, drugs or weapons[.]
Florence v. Bd. of Chosen Freeholders of the County of Burlington, 2008 WL 800970, at *17 (D.N.J. Mar. 20, 2008).
Florence sought class certification only on his strip search claims; he did not seek certification on his claim that he was subjected to a visual body cavity search. Florence v. Bd. of Chosen Freeholders of the County of Burlington, 2008 WL 800970, at *8 n. 5 (D.N.J. Mar. 20, 2008).
Following discovery, the parties filed cross motions for summary judgment. In reviewing the motions, the District Court first considered whether the intake procedures at each facility rose to the level of a "strip search." Florence v. Bd. of Chosen Freeholders of the County of Burlington, 595 F.Supp.2d 492, 502 (D.N.J. 2009). To resolve this question, the District Court reviewed the Jails' written search policies as well as the deposition testimony of correctional officers and the wardens at each facility. Ultimately, the District Court concluded that, while there were facts in dispute — such as whether non-indictable male arrestees at BCJ were required to lift their genitals during the search — these disputes were immaterial because even the undisputed procedures of instructing arrestees to remove all of their clothing and subject their naked bodies to visual inspection "rose to the level of a strip search" under the Fourth Amendment. Id. at 502-03 ("Whatever the case may be, a discrepancy of this sort does not necessarily provide a genuine issue of material fact. . . . `It's just common sense. Take off all your clothes. You're strip[] searched.'" (quoting Plaintiffs' counsel)).
BCJ's written policy defined a strip search as "[a] physical search of an inmate by the same sex officer while unclothed consisting of routine and systematic visual observation of the inmate's physical body to look for distinguished identifying marks, scars or deformities, signs of illness, injury or disease and/or the concealment of contraband on the inmate's body." Burlington County Detention Center/Corrections Work Release Center Policies and Procedures: Search of Inmates — No. Section 1186, Supp.App. at 42.
The policy in effect at ECCF from September 2002 through April 2005 provided that all arrestees were to be strip searched and required to shower. Department of Public Safety General Order No. 89-17, Supp.App. 34. A "strip search" under the written policy is to consist of an officer "observ[ing] carefully while the inmate undresses" and examining the arrestee's ears, nose, hair and scalp, the interior of the mouth, fingers, hands, arms and armpits, and all body openings and the inner thighs. Id. The superceding ECCF policy, Department of Corrections Administrative Directive No. 04-06, requires that officers "conduct a thorough search of individual inmates," direct arrestees to shower during in-take, and "observe and document, in writing, any evidence of: a) notable body markings such as `tattoos;' b) [b]ody vermin or disease; [and] c) [o]pen sores, visible wounds, scars, [or] injuries" on the arrestees' bodies. Supp. App. at 40.
The District Court found that BCJ's "blanket" strip search policy "entails a complete disrobing, followed by an examination of the nude inmate for bruises, marks, wounds or other distinguishing features by the supervising officer, which is then followed by a supervised shower with a delousing agent." Id. at 502. The Court found that ECCF utilized similar strip-search and supervised-shower procedures; however, the ECCF procedures were slightly more intrusive because "Essex officers carefully observed the entire naked body of the inmate, including body openings and inner thighs." Id. at 503. Having thus defined the Jails' respective search policies, the District Court concluded that the procedures failed the Bell balancing test and observed that "blanket strip searches of non-indictable offenders, performed without reasonable suspicion for drugs, weapons, or other contraband, [are] unconstitutional." Id. at 513. Based on this holding, the District Court granted the Plaintiffs' motion for summary judgment on the unlawful search claim, but denied the Plaintiffs' request for a preliminary injunction. Id. at 519. The Court denied Defendants' cross-motion which sought qualified and Eleventh Amendment immunity. Id.
The Jails do not challenge the District Court's factual findings regarding the scope of the strip search policies. Rather, they assert that such searches are permissible under Bell.
Following the decision, the Jails moved the District Court to certify its summary judgment as an appealable order pursuant to 28 U.S.C. § 1292(b). The District Court agreed that the order "involve[d] a controlling question of law as to which there is substantial ground for difference of opinion," id., and we granted permission to appeal. The District Court certified the following question for our review: "whether a blanket policy of strip searching all non-indictable arrestees admitted to a jail facility without first articulating reasonable suspicion violates the Fourth Amendment of the United States Constitution as applied to the States through the Fourteenth Amendment." Florence v. Bd. of Chosen Freeholders of the County of Burlington, 657 F.Supp.2d 504, 511 (D.N.J. 2009) (order certifying issue for appeal). "In reviewing an interlocutory appeal under 28 U.S.C. § 1292(b), this court exercises plenary review over the question certified." Morris v. Rumsfeld, 420 F.3d 287, 290 (3d Cir. 2005).
II.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures." U.S. Const. amend. IV. To enforce this guarantee, government officials are limited to only those searches which are reasonable. Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Reasonableness under the Fourth Amendment is a flexible standard, Bodine v. Warwick, 72 F.3d 393, 398 (3d Cir. 1995), "not capable of precise definition or mechanical application," Bell, 441 U.S. at 559, 99 S.Ct. 1861. "In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails." Id.
Detention in a correctional facility "carries with it the circumscription or loss of many significant rights." Hudson v. Palmer, 468 U.S. 517, 524, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). "The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of institutional needs and objectives of prison facilities, chief among which is internal security." Id. (internal quotation marks and citations omitted). Because privacy is greatly curtailed by the nature of the prison environment, a detainee's Fourth Amendment rights are likewise diminished. See id. at 526, 104 S.Ct. 3194 (holding that "the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell"); Bell, 441 U.S. at 537, 99 S.Ct. 1861 ("Loss of freedom of choice and privacy are inherent incidents of confinement in such a facility.").
While the Supreme Court has "repeatedly held that prisons are not beyond the reach of the Constitution[,]" Hudson, 468 U.S. at 523, 104 S.Ct. 3194, it has also emphasized that the judiciary has a "very limited role" in the administration of detention facilities, Block v. Rutherford, 468 U.S. 576, 584, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984). Indeed, detention facilities have been described as "unique place[s] fraught with serious security dangers," Bell, 441 U.S. at 559, 99 S.Ct. 1861, the management of which "courts are ill equipped to deal with," id. at 548 n. 30, 99 S.Ct. 1861. Therefore, authorities are entitled to considerable latitude in designing and implementing prison management policies. Thornburgh v. Abbott, 490 U.S. 401, 407-08, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). As the Supreme Court cautioned in Bell: "[p]rison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." 441 U.S. at 547, 99 S.Ct. 1861. In addition to prison administrators' "professional expertise," separation of powers and federalism concerns support "wide-ranging deference" to the decisions of prison authorities. Id. at 548, 99 S.Ct. 1861 ("[Judicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the Legislative and Executive branches of our Government, not the Judicial."); Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) ("[Separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities.").
A.
Having explained the general standards that govern our inquiry, we turn to the Supreme Court's pathmarking decision in Bell v. Wolfish. Although there are factual differences between Bell and the instant case, they are sufficiently similar to warrant a detailed review of Bell.
In Bell, pretrial detainees and convicted prisoners confined at the Metropolitan Correctional Center (MCC) — a federally operated short-term custodial facility — filed suit challenging numerous prison practices and conditions of confinement. 441 U.S. at 523-24, 99 S.Ct. 1861. Although the primary purpose of MCC was to house pretrial detainees awaiting trial on federal criminal charges, the facility also housed: witnesses in protective custody, contemnors, inmates awaiting sentencing or transportation to federal prison, inmates serving relatively short sentences, and inmates lodged under writs of habeas corpus issued to ensure their presence at trial. Id. at 524, 99 S.Ct. 1861. The population at MCC was quite transient, with 50% of its inmates spending fewer than 30 days at the facility and 73% of the population spending fewer than 60 days at MCC. Id. at 524 n. 3, 99 S.Ct. 1861.
Among the conditions of confinement challenged by the inmates at MCC was the policy of strip and visual body-cavity searches after contact visits with outsiders. Under that policy, all persons housed at MCC — regardless of the reason for their detention — were "required to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution." Id. at 558, 99 S.Ct. 1861. For males, this required "lift[ing] [the] genitals and bend[ing] over to spread [the] buttocks for visual inspection." Id. at 558 n. 39, 99 S.Ct. 1861. "The vaginal and anal cavities of female inmates also [were] visually inspected." Id. Inmates were not touched by officers during the searches. Id.
The district court in Bell upheld the strip searches but held the visual body cavity searches unreasonable under the Fourth Amendment. Id. at 558, (1998); Faragher, 524 U.S. at 807. Nonetheless, where a "hostile work environment" results from harassment perpetrated by an employee's co-workers, "there is no presumption of employer liability or accompanying burden on the employer to establish an affirmative defense to liability." Andreoli v. Gates, 482 F.3d 641, 648 (3d Cir. 2007). Where the relevant harassment has been perpetrated by a co-worker rather than by a supervisor, "a plaintiff
The affirmative defense is not available where a supervisor's harassment culminates in a tangible adverse employment action. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 808, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
must demonstrate that the employer failed to provide a reasonable avenue for complaint," or that the employer was aware of the harassment and nevertheless "failed to take appropriate remedial action." Weston v. Pennsylvania, 251 F.3d 420, 427 (3d Cir. 2001). In this context, the employer's liability is direct liability for its own negligence rather than vicarious liability for the actions of a supervisor. Kunin v. Sears Roebuck Co., 175 F.3d 289, 293, n. 5 (3d Cir. 1999); Williamson v. City of Houston, 148 F.3d 462, 465 (5th Cir. 1998); Pierce v. Commonwealth Life Insurance Co., 40 F.3d 796, 804, n. 11 (6th Cir. 1994); Hirschfeldv. New Mexico Corrections Dept., 916 F.2d 572, 577, n. 5 (10th Cir. 1990); Hall v. Gus Construction Co., Inc., 842 F.2d 1010, 1015-1016 (8th Cir. 1988); Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421-1422 (7th Cir. 1986).
Although the parties do not directly address this issue in their briefs, it is evident from the record that neither Bishop nor Petak can be fairly characterized as a supervisor. It is undisputed that both individuals were co-workers of Howard, and that they had no job-related authority over him. Therefore, Howard cannot hold Blalock Electric vicariously liable for the harassing conduct perpetrated by Bishop and Petak, even if it is assumed that such conduct was sufficiently hostile or abusive to adversely affect the "terms, conditions, or privileges" of Howard's employment. To hold Blalock Electric liable under a "hostile work environment" theory, Howard must show that Blalock Electric was itself negligent in failing to remedy the harassment. Wilson v. Moulison North Corp., 691 F.Supp.2d 232,236 (D.Me. 2010). Liability for negligence will exist where an employer "knew or should have known of harassment" and nevertheless "failed to take prompt remedial action." Bouton v. BMW of North America, Inc., 29 F.3d 103, 107 (3d Cir. 1994). On the other hand, "prompt and effective action" by an employer to remedy a "hostile work environment" will shield it from liability. Id. A remedial action that is "reasonably calculated to prevent further harassment" satisfies an employer's duty of reasonable care even if, in retrospect, that action proves to have been ineffective in actually accomplishing that objective. Knabe v. Boury Corp., 114 F.3d 407, 411, n. 8 (3d Cir. 1997) ("A remedial action that effectively stops the harassment will be deemed adequate as a matter of law. On the other hand, it is possible that an action that proves to be ineffective in stopping the harassment may nevertheless be found reasonably calculated to prevent further harassment and therefore adequate.").
"Negligence" is typically defined as "the failure to observe, for the protection of another's interest, such care and precaution as the circumstances demand, or the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances." Witt v. Norfe, Inc., 725 F.2d 1277, 1278 (11th Cir. 1984); Seaboard Coast Railroad Co. v. Griffis, 381 So.2d 1063, 1065 (Fla.Dist.Ct.App. 1979). Howard must prove that Blalock Electric was negligent in failing to prevent the harassment that was being perpetrated by Bishop and Petak. Huston v. Proctor Gamble Paper Products Corp., 568 F.3d 100, 104-105 (3d Cir. 2009).
An employer's duty to take remedial action against harassing behavior is clearly triggered once the employer has actual notice that the harassment is occurring. Priller v. Town ofSmyrna, 430 F.Supp.2d 371, 379-380 (D.Del. 2006). In the absence of actual notice, an employer is charged with constructive notice of harassing behavior where an employee provides "management level personnel" with enough information to raise a probability of harassment in the mind of an objectively reasonable employer, or where harassment is "so pervasive and open" that it is logical to presume that an objectively reasonable employer would have been aware of it. Kunin, 175 F.3d at 294. In Huston v. Proctor Gamble Paper Products Corp., 568 F.3d 100, 107-108 (3d Cir. 2009), the United States Court of Appeals for the Third Circuit held that, for purposes of constructive notice, an employee's knowledge of the existence of harassment will be imputed to an employer only where the employee is "sufficiently senior in the employer's governing hierarchy" that such knowledge is important to his or her general managerial duties, or where the employee is specifically employed to deal with issues related to harassment. Speaking through Judge Smith, the Court of Appeals went on to make the following observations:
We clarify that mere supervisory authority over the performance of work assignments by other co-workers is not, by itself, sufficient to qualify an employee for management level status. It is not uncommon for non-managerial co-workers to be organized into groups where one worker is designated to oversee the performance by others of a specific task. But to the extent that such a supervisor does not have a mandate generally to regulate the workplace environment, that supervisor does not qualify as management level.
Huston, 568 F.3d at 108. The Court of Appeals further declared that an employer cannot be expected to know about every instance of harassment perpetrated by one of its employees, since the applicable standard was one of "negligence" rather than one of "strict liability."
Id.
The observations made by the Court of Appeals in Huston suggest that an employee must have some "authority to affect the employment status" of others in order to qualify as a "management level" employee. Id. at 108. This narrow category of individuals does not include those who, while possessing a limited degree of responsibility for overseeing a particular task, have no authority to hire, fire or discipline subordinate employees. Id. at 108-109; Wilson, 691 F.Supp.2d at 236-237. When asked whether he had disciplined Bishop in response to Howard's complaints, Coposky testified that it had not been his place to issue formal reprimands. Coposky Dep. at 12-13. Coposky explained that he had simply told Bishop and Howard to avoid contact with each other after hearing Howard's complaints. Id. at 16-17. In addition, Coposky stated that he had not reported Bishop's transgressions to Blalock prior to Howard's meeting with Blalock and Kephart on June 8, 2005. Id. at 16. The record contains no indication that Coposky was specifically expected to deal with issues related to workplace harassment prior to his own meeting with Blalock and Kephart on June 9, 2005. Consequently, Blalock Electric had neither actual notice nor constructive notice of the ongoing
harassment prior to June 7, 2005, when Howard requested a meeting with Blalock to discuss the situation. Howard Dep. at 66, 70.
The negligence standard must be applied with a specific focus on "the timing and nature" of an employer's response to complaints of job-related harassment. Andreoli, 482 F.3d at 644. In this case, the window of time at issue is very short. Howard first complained about race-based harassment on June 7, 2005, when he requested a meeting with Blalock to discuss the work environment at the UCP site. Howard Dep. at 66, 70. A meeting was held at 4:15 P.M. on June 8, 2005, to address Howard's concerns. Blalock Dep. at 66. Howard, Blalock and Kephart were present for the meeting. Id. Howard relayed his concerns to Blalock and Kephart during the course of the meeting. Howard Dep. at 67-68. Blalock and Kephart met with Coposky on the morning of June 9, 2005, in order to discuss Howard's complaints. Blalock Dep. at 57-60. Kephart placed a written reprimand in Coposky's personnel file concerning his admitted use of the term "nigger-rigged." Coposky Dep. at 26. After the meeting, Coposky admonished the Blalock Electric employees working at the UCP site that a meeting had been conducted, and that on-the-job harassment would not be tolerated. Id. at 25. On the morning of June 10, 2005, Howard arrived at work and discovered that someone had written "Rat 2" on his hard hat. Howard Dep. at 76. Howard called the matter to Coposky's attention, but Coposky viewed it as a joke rather than as a problem that he needed to address. Coposky Dep. at 28. When Howard showed Coposky his hard hat and asked what was going on, Coposky sarcastically replied, "It's a hard hat." Id. at 30.
The evidentiary record contains some conflicts concerning exactly what happened next. Coposky testified that Howard had expressed an intention to "quit" after hearing Coposky's sarcastic statement. Id. Howard telephoned a friend, who subsequently picked him up and drove him to Kephart's office. Howard Dep. at 78-79. Howard testified that he had spoken to Kephart, showed her the defaced hard hat, asked to speak with Blalock, and requested a transfer to a different work location. Howard Dep. at 79. He explained that he had not discussed this with Blalock because Kephart had told him that Blalock was not available. Id. According to Howard, he never told Kephart that he wanted to "quit." Id. at 80.
Kephart testified on April 9, 2009, that she could not recall whether Howard had expressed an intention to "quit" his job with Balock Electric on June 10, 2005. Kephart Dep. at 64, 70. Nevertheless, in a verified statement signed on December 5, 2005, Kephart declared:
On the morning of June 10, 2005, less than 2 full days after hearing Mr. Howard's concerns, I met Ken in the hallway of our office. Asked him what he was doing here and why he wasn't on the job working and he stated he quit and could no longer work on that job.
Verified Statement of Michelle Kephart. Although Kephart used the word "quit" in her statement, the phrase "on that job" could be read to indicate that Howard had only expressed an intention not to return to the UCP site rather than an intention to terminate his employment relationship with Blalock Electric altogether.
June 10, 2005, was a Friday. Howard testified that he had attempted to reach Blalock by telephone on that date, but that he had been told that Blalock was not available. Howard Dep. at 81. He stated that he had unsuccessfully attempted to contact Blalock on Monday, June 13, 2005, and each day thereafter until Thursday, June 16, 2005, when he finally spoke with Blalock. Id. According to Howard's deposition testimony, Blalock told Howard that his departure from the UCP site had been construed as a resignation. Id. at 82. Howard evidently tried to persuade Blalock to transfer him to a different work location, denying that he had resigned. Id. Howard further testified that Blalock had refused his request for a transfer. Id.
Blalock described a different course of events in his deposition testimony. Blalock testified that he had spoken with Howard by telephone on June 10, 2005, and that Howard had stated that he could no longer work for the "company." Blalock Dep. at 77-79. According to Blalock, Howard did not request a transfer to a different work location until the following week, at which point Blalock was not willing to let Howard reconsider his decision to "quit." Id. at 80. The decision to deny Howard the opportunity to continue working for Blalock Electric was allegedly conveyed to Howard by Kephart. Id. at 80-81. Blalock denied that he had spoken with Howard subsequent to June 10, 2005. Id. at 81.
At this stage, the testimonial evidence must be viewed in the light most favorable to Howard. Moore v. Darlington Township, 690 F.Supp.2d 378, 397 (W.D.Pa. 2010). Accordingly, the Court's analysis must proceed on the assumption that Howard did not express an intention to resign when he spoke with Kephart on June 10, 2005, that he did not speak with Blalock on that date, that he repeatedly attempted to talk to Blalock about a reassignment throughout the ensuing six days, and that he first learned of his termination on June 16, 2005. Given Howard's testimony that he did not resign, taken in a light most favorable to the nonmoving party, the termination of his employment relationship with Blalock Electric must be treated (at this stage) as a "discharge." Prise v. Alderwoods Group, Inc., 657 F.Supp.2d 564, 589-591 (W.D.Pa. 2009).
In order to establish that he was "constructively discharged," Howard would need to show that his working conditions had become "so intolerable that a reasonable person would have felt compelled to resign." Pennsylvania State Police v. Suders, 542 U.S. 129, 147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). A constructive discharge claim entails "something more" than an ordinary discriminatory discharge claim. Id. In this case, however, Howard appears to argue that he did not resign. Pl.'s Br. 10. Therefore, the termination of his employment relationship with Blalock Electric must be viewed (at least at this stage) as an ordinary discharge rather than as a constructive discharge.
Although Blalock promptly spoke with Coposky after meeting with Howard and Kephart, he acknowledged that nothing was done about the situation after Howard had left the UCP site on June 10, 2005. Blalock Dep. at 95. Bishop was never asked to explain his prior conduct. Id. at 94. Blalock did not check to see if Howard's request for a reassignment could be accommodated. Id. at 142. In light of the ongoing harassment that Howard had endured, the Court cannot conclude as a matter of law that Howard had no reason to view the "Rat 2" notation on his hard hat as a threat to his safety. After all, this incident occurred less than twenty-four hours after Coposky had informed the employees at the UCP site of Howard's complaints. Admittedly, there is some evidence which undermines Howard's assertion that he had a legitimate reason to fear for his safety. Coposky testified that it was not uncommon for Blalock Electric employees to write on other employees' hard hats, and that someone had once written "Rat 5" on his hard hat. Coposky Dep. at 28, 43-45. Michael Ellis ("Ellis"), a black employee of Blalock Electric, testified that the word "Rat" had been written on hard hats other than the one belonging to Howard. Ellis Dep. at 23-24. Nevertheless, Parks testified that Howard's safety-related concerns had been reasonable in light of what had been going on at the UCP site. Parks Dep. at 27. Viewing the evidence in the light most favorable to Howard, the Court is convinced that a reasonable trier of fact could conclude that Blalock Electric failed to take "prompt and adequate remedial action" after Howard complained of ongoing harassment. Andreoli, 482 F.3d at 649. Therefore, Blalock Electric's motion for summary judgment will be denied with respect to Howard's "hostile work environment" claims under Title VII, § 1981 and the PHRA. Compl. at ¶¶ 43-51.
2. The Discriminatory Discharge Claims
In Counts IV, V and VI of his complaint, Howard appears to assert that Blalock Electric violated Title VII, § 1981 and the PHRA by engaging in a more generalized form of race-based discrimination. Compl. at ¶¶ 52-60. Construing the evidence in a light most favorable to the nonmoving party, the Court must treat the termination of Howard's employment relationship with Blalock Electric as a "discharge" for purposes of the instant Motion.
Since this is an employment discrimination case in which no "direct evidence" of discrimination is presented, the Supreme Court's analyses in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), provide the formula for allocating the requisite burdens of proof and production for purposes of the instant motion for summary judgment. In an employment discrimination case of this kind, the plaintiff must establish aprima facie case of illegal discrimination. McDonnell Douglas, 411 U.S. at 802. If a prima facie case of discrimination is established, the defendant must articulate legitimate, nondiscriminatory reasons for treating the plaintiff in an adverse manner. Id. at 802-803. If the defendant articulates legitimate, nondiscriminatory reasons for the plaintiff's adverse treatment, the plaintiff must demonstrate that the reasons given by the defendant for such treatment are merely a pretext for unlawful employment discrimination. Id. at 804-805. Evidence that an employer's stated reasons for an adverse employment action are unworthy of credence is one form of circumstantial evidence that a plaintiff can use to establish the existence of intentional discrimination. Desert Palace, Inc. v. Costa, 539 U.S. 90, 100, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003).
The McDonnell Douglas-Burdine burden-shifting framework does not apply in an employment discrimination case in which "direct evidence" of discrimination is presented. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). "Direct evidence" of discrimination is evidence that is "so revealing of discriminatory animus that it is not necessary to rely on any presumption" from the plaintiff's prima facie case to shift the applicable burden of production to the defendant. Starceski v. Westinghouse Electric Corp., 54 F.3d 1089, 1096, n. 4 (3d Cir. 1995). The evidence presented in this case does not constitute "direct evidence" of discrimination.
The plaintiff's burden of establishing a prima facie case of disparate treatment is not onerous. Burdine, 450 U.S. at 253. In order to establish a prima facie case of discrimination, the plaintiff need only show that: (1) he or she was a member of a statutorily-protected class; (2) he or she was aggrieved by an adverse employment action; and (3) the adverse employment action occurred under circumstances giving rise to an inference of illegal discrimination. Shah v. Bank ofAmerica, 598 F.Supp.2d 596, 604 (D.Del. 2009). The specific elements of a prima facie case generally "depend on the facts of the particular case" before the court and "cannot be established on a one-size-fits-all basis." Jones v. School District of Philadelphia, 198 F.3d 403, 411 (3d Cir. 1999). The prima facie inquiry "remains flexible and must be tailored to fit the specific context in which it is applied." Sarullo v. United States Postal Service, 352 F.3d 789, 797-798 (3d Cir. 2003). A prima facie case
The Court recites these elements in a general manner in order to accommodate different factual scenarios. In a "discharge" or "failure-to-hire" case, the plaintiff's qualifications for the position at issue are often relevant at the prima facie stage. Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 366 (3d Cir. 2008). This is because an inference of discrimination cannot be drawn where an employer discharges or refuses to hire an individual who is obviously unqualified for the desired position. For instance, no inference of sex-based discrimination can be drawn where a hospital seeking to employ a new surgeon chooses to hire a female physician rather than a male with no medical background. Makky v. Chertoff, 541 F.3d 205, 215 (3d Cir. 2008). In that situation, consideration of the plaintiff's qualifications is appropriate at the prima facie stage, since deficient qualification is among the most common reasons relied upon by employers for declining to hire specific applicants for employment. Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 352 (3d Cir. 1999). In other instances, however, one's qualifications for a position may have nothing to do with the prima facie inquiry. Where the relevant adverse employment action is a suspension (or some other form of discipline which does not end an individual's employment relationship with his or her employer), the aggrieved employee's qualifications for his or her position are not likely to have any relevance at all to the prima facie inquiry. Boykins v. Lucent Technologies, Inc., 78 F.Supp.2d 402, 409 (E.D.Pa. 2000). The three elements identified by the Court are generally relevant in all employment discrimination cases. All other issues at the prima facie stage are more accurately characterized as factors relevant to a more generalized inquiry as to whether a challenged employment action has occurred under circumstances giving rise to an inference of discrimination. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-313, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996).
"raises an inference of discrimination" sufficient to shift the burden of production to the defendant because the court presumes that certain actions, if left unexplained, were "more likely than not based on the consideration of impermissible factors." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). Because the prima facie inquiry in any case is fact-specific, "[t]he touchstone of the inquiry is whether the circumstances giving rise to an inference of discrimination are of evidentiary value, not whether they fit into a mechanical formula." Cobetto v. Wyeth Pharmaceuticals, 619 F.Supp.2d 142, 153, n. 3 (W.D.Pa. 2007) (emphasis in original), citing O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-313, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996).
If the plaintiff establishes a prima facie case of discrimination, the burden of production shifts to the defendant to rebut the presumption of discrimination through the introduction of admissible evidence indicating that the challenged employment action was taken for legitimate, nondiscriminatory reasons. Burdine, 450 U.S. at 254-255. To sustain this burden, "[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons." Id. at 254. The inquiry concerning whether the defendant has met its burden of production "can involve no credibility assessment," since "the burden-of-production determination necessarily precedes the credibility-assessment stage." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (emphasis in original). The defendant satisfies its burden of production, and rebuts the plaintiff's prima facie showing of discrimination, simply by introducing admissible evidence that, if taken as true, would permit a finding that the challenged employment action was taken for legitimate, nondiscriminatory reasons. Id.
If the defendant meets its burden of production, the dispositive factual issue is framed with "sufficient clarity" to provide the plaintiff with "a full and fair opportunity to demonstrate pretext." Burdine, 450 U.S. at 255-256. In order to establish that the defendant is liable for illegal employment discrimination, the plaintiff must ultimately convince the trier of fact that a discriminatory animus was the real reason for the adverse employment action at issue. Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). Liability cannot be established upon a jury's mere disbelief of the defendant's proffered reasons for an adverse employment action, but rather upon the jury's affirmative belief of the plaintiff's contention that the action was taken on the basis of an impermissible discriminatory criterion. St. Mary's Honor Center, 509 U.S. at 519 ("It is not enough, in other words, to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.") (emphasis in original). Nevertheless, when coupled with a plaintiff's prima facie case, evidence that an employer's proffered reasons for an adverse employment action are false may sufficiently undermine the employer's credibility such that a reasonable trier of fact could conclude that illegal discrimination has occurred. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147-148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Evidence used to establish a prima facie case of discrimination may also be relied upon to demonstrate pretext, since nothing about the McDonnell Douglas-Burdine burden-shifting framework requires a court to ration the evidence presented in a particular case among the prima facie and pretext stages of the analysis. Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 370 (3d Cir. 2008). Proof that an employer's explanation for an adverse employment action is unworthy of credence can be a powerful form of circumstantial evidence that is probative of intentional discrimination. Reeves, 530 U.S. at 147. Circumstantial evidence is not only sufficient to sustain a finding of liability for intentional discrimination, "but may also be more certain, satisfying and persuasive than direct evidence." Desert Palace, 539 U.S. at 100, quoting Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 508, n. 17, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). Depending on the circumstances of the particular case at issue, a plaintiff can sometimes prevail on the basis of circumstantial evidence without introducing "additional, independent evidence of discrimination." Reeves, 530 U.S. at 149. Whether summary judgment is warranted in a given case depends upon the strength of the plaintiff's prima facie case, the probative value of the evidence discrediting the defendant's proffered reasons for the challenged employment action, and the presence or absence of additional evidence that may properly be considered by a court in determining whether a judgment as a matter of law is appropriate. Id. at 148-149.
At the prima facie stage, the "central focus" is on whether an employer has treated an employee less favorably than others on the basis of an illicit discriminatory criterion. Wilson v. Blockbuster, Inc., 571 F.Supp.2d 641, 647 (E.D.Pa. 2008). An inference of race-based discrimination cannot arise simply from an employee's subjective belief that his or her race somehow influenced the challenged employment action. Id. In order to establish a prima facie
Section 107 of the Civil Rights Act of 1991 amended Title VII to provide that, "[e]xcept as otherwise provided in [Title VII], an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." Pub.L. No. 102-166, § 107; 105 Stat. 1071, 1075 (1991); 42 U.S.C. § 2000e-2(m). In light of the statutory amendment, which is codified at 42 U.S.C. § 2000e-2(m), a plaintiff can establish the existence of "discrimination" by showing that his or her race was a "motivating factor" in the challenged employment action. Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343, 2349, 174 L.Ed.2d 119 (2009). In Watson v. Southeastern Pennsylvania Transportation Authority, 207 F.3d 207, 217-218 (3d Cir. 2000), the United States Court of Appeals for the Third Circuit assumed that § 2000e-2(m) was applicable only where a plaintiff presents "direct evidence" of discrimination. The Supreme Court unanimously rejected that view in Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003), holding that, "[i]n order to obtain an instruction under § 2000e-2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that `race, color, religion, sex, or national origin was a motivating factor for any employment practice.'" In the aftermath of Desert Palace, the application of § 2000e-2(m) can no longer be confined to the narrow category of Title VII cases involving "direct evidence" of discrimination. Cobetto v. Wyeth Pharmaceuticals, 619 F.Supp.2d 142, 154-158 (W.D.Pa. 2007). An employer able to show that it "would have taken the same action in the absence of the impermissible motivating factor" may avail itself of a partial affirmative defense permitting the granting of declaratory relief, injunctive relief, attorney's fees and costs but precluding an award of damages or the issuance of "an order requiring any admission, reinstatement, hiring, promotion, or payment." 42 U.S.C. § 2000e-5(g)(2)(B)(i)-(ii). The Court of Appeals recently noted that § 2000e-2(m) does not apply to claims arising under § 1981. Brown v. J. Kaz, Inc., 581 F.3d 175, 182, n. 5 (3d Cir. 2009). Thus, the standard of causation applicable under Title VII is not always identical to that applicable under § 1981. Nevertheless, the differences between Title VII and § 1981 with respect to the issue of causation do not impact the analysis at the prima facie stage, where the relevant question is whether a reasonable inference of race-based discrimination can be drawn. Brown, 581 F.3d at 182, n. 5 ("If race plays any role in a challenged decision by a defendant, the plain terms of the statutory text suggest that the plaintiff has made out a prima facie case that section 1981 was violated because the plaintiff has not enjoyed `the same right' as other similarly situated persons. However, if the defendant then proves that the same decision would have been made regardless of the plaintiff's race, then the plaintiff has, in effect, enjoyed `the same right' as similarly situated persons."). Therefore, there is no need for the Court to conduct separate inquiries at the prima facie stage.
case of discriminatory discharge, Howard must demonstrate that the circumstances surrounding his "discharge" give rise to an inference of race-based discrimination. Terrell v. City of Harrisburg Police Department, 549 F.Supp.2d 671, 681 (M.D.Pa. 2008). The most common way in which a plaintiff can establish a prima facie case of illegal discrimination is to show that he or she has received less favorable treatment than similarly situated employees who did not share his or her statutorily-protected trait. Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 352-357 (3d Cir. 1999).
Although the record contains evidence that Bishop and Petak were motivated by a race-based animus when they harassed Howard, the record is devoid of evidence permitting an inference that Blalock decided to "discharge" Howard because of his race. An individual can establish a violation of Title VII by showing that a decision rendered by an otherwise neutral decisionmaker has resulted from the taint of faulty evaluations or assessments supplied to the decisionmaker by a racially-motivated subordinate. Qamhiyah v. Iowa State University of Science Technology, 566 F.3d 733, 742-745 (8th Cir. 2009); Staub v. Proctor Hospital, 560 F.3d 647, 651-659 (7th Cir. 2009); Poland v. Chertoff, 494 F.3d 1174, 1182-1183 (9th Cir. 2007); EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 484-488 (10th Cir. 2006); Roebuck v. Drexel University, 852 F.2d 715, 727,
734 (3d Cir. 1988). In this case, however, there is no evidence that Blalock was influenced by Bishop or Petak when he "terminated" Howard's employment with Blalock Electric.
Howard attempts to show that he was treated less favorably than two white employees named Jeffrey Freiwald ("Freiwald") and Ray Norman ("Norman"). Pl.'s Br. 16-18. Blalock Electric's internal documents indicate that Freiwald "quit" his job with Blalock Electric on September 25, 2003. Freiwald's Employee Notes, DEF 00091, DEF 00449. The next day, Freiwald described his decision to "quit" as a "mistake" and asked Blalock to let him continue working for Blalock Electric. Id. There is an inconsistency between two otherwise identical documents, one of which states that Blalock "would not" re-employ Freiwald and the other of which states that Blalock would "think about" re-employing Freiwald. Id. Nonetheless, the documents are consistent in that they both indicate that, as of October 8, 2003, Blalock had decided not to accept Freiwald back as an employee. Id. Regardless of whether Blalock actually considered letting Freiwald return as a Blalock Electric employee, the record clearly indicates that he ultimately decided not to do so. Since Freiwald was not treated more favorably in October 2003 than Howard was treated in June 2005, Howard cannot establish a prima facie case of race-based discrimination simply by pointing to Blalock Electric's internal documents concerning the termination of Freiwald's employment.
According to Blalock Electric's internal documents, Norman had been using a company-owned van in order to travel to and from work. Norman's Employee Notes, DEF 01149-DEF 01150. On September 18, 2003, Norman was told that he could no longer take the van to his home. Id. Upon hearing this news, Norman apparently "got mad" and left work "for the day." Id. He returned to his work location the next day and continued to work as a Blalock Electric employee. Id.
Norman testified that he could not remember leaving his job site on September 18, 2003. Norman Dep. at 11. He further testified that he had later "quit" his job with Blalock Electric, and that he had not been permitted to return as a Blalock Electric employee after "quitting." Id. at 12. Assuming Howard's testimony that he did not "quit" his job to be true, it remains undisputed that Howard indicated that he did not want to return to the UCP site. He claims to have told Kephart that he did not feel safe returning to that work location. Pl.'s Br. 15. He does not argue that he merely left the UCP site "for the day." Thus, Howard and Norman were never similarly situated for purposes of the prima facie inquiry.
While the prima facie threshold is relatively easy for a plaintiff to meet, he or she cannot repeatedly pile one inference upon another in order to establish a prima facie case of discrimination. Mackey v. Shalala, 43 F.Supp.2d 559, 566 (D.Md. 1999). The record does not contain evidence adequate to create an inference that Blalock Electric "discharged" Howard because of his race. O'Connor, 517 U.S. at 312. Accordingly, Blalock Electric is entitled to summary judgment with respect to the discriminatory discharge claims asserted by Howard under Title VII, § 1981 and the PHRA.
B. The Retaliation Claims
Howard contends that Blalock Electric "terminated" him "in retaliation for his complaints of racial harassment and discrimination." Compl. at ¶¶ 62, 65, 68. Title VII's anti-retaliation provision declares it to be an "unlawful employment practice" for a covered employer "to discriminate against" an employee "because he [or she] has opposed any practice made an unlawful employment practice" by Title VII, "or because he [or she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VII. 42 U.S.C. § 2000e-3(a) (emphasis added). Similarly, the PHRA declares it to be an "unlawful discriminatory practice" for an employer "to discriminate in any manner against any individual because such individual has opposed any practice forbidden by [the PHRA], or because such individual has made a charge, testified or assisted, in any manner, in any investigation, proceeding or hearing under [the PHRA]." 43 PA. STAT. § 955(d) (emphasis added). Given the similar language used in these two provisions, federal courts have consistently construed them to provide covered employees with the same degree of statutory protection. Hubbell, 688 F.Supp.2d at 437; Mascioli v. Arby `s Restaurant Group, Inc., 610 F.Supp.2d 419, 447, n. 9 (W.D.Pa. 2009); Johnson v. Community College of Allegheny County, 566 F.Supp.2d 405, 442, n. 13 (W.D.Pa. 2008); Mathias v. Allegheny Valley School, 560 F.Supp.2d 354, 359 (E.D.Pa. 2008); McGlone v. Allegheny Valley School, 556 F.Supp.2d 498, 503 (E.D.Pa. 2008). In CBOCS West, Inc. v. Humphries, 553 U.S. 442, 128 S.Ct. 1951, 1958-1961, 170 L.Ed.2d 864 (2008), the Supreme Court held that retaliation claims are cognizable under § 1981. The United States Court of Appeals for the Third Circuit recently observed that the standards applicable to retaliation claims brought under § 1981 are the same as those applicable to retaliation claims brought under Title VII. Estate of Oliva v. New Jersey Department of Law Public Safety, 604 F.3d 788, 798, n. 14 (3d Cir. 2010).
The first clause of Title VII's anti-retaliation provision is known as the "opposition clause," while the second clause of that provision is known as the "participation" clause. Hubbell, 688 F.Supp.2d at 435. "The pendency of an EEOC charge, and a resulting `investigation, proceeding, or hearing' under Title VII, is a prerequisite to the application of the participation clause." Id. at 440, citing Abbott v. Crown Motor Co., 348 F.3d 537, 543 (6th Cir. 2003). The "discharge" of which Howard complains occurred prior to the commencement of proceedings before the EEOC and the PHRC. Consequently, his retaliation claims are based on an "opposition" theory rather than on a "participation" theory.
In the absence of "direct evidence" of retaliation, a retaliation claim must be evaluated in accordance with the McDonnell Douglas-Burdine burden-shifting framework. Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005). In order to establish a prima facie case of retaliation, Howard must show that: (1) he engaged in statutorily-protected conduct ( i.e., he "opposed" conduct made "unlawful" by Title VII, § 1981 and the PHRA); (2) Blalock Electric took a "materially adverse" action against him; and (3) there was a causal connection between his statutorily-protected conduct and Blalock Electric's "materially adverse" action. LeBoon v. Lancaster Jewish Community Center Association, 503 F.3d 217, 231 (3d Cir. 2007). Viewing the evidence in the light most favorable to Howard, the Court assumes that he was "discharged" by Blalock Electric. It is axiomatic that a "discharge" constitutes a "materially adverse" action. Johnson v. McGraw-Hill Companies, 451 F.Supp.2d 681, 711 (W.D.Pa. 2006). Therefore, the only remaining questions are whether Howard engaged in statutorily-protected conduct and whether there was a causal connection between such conduct and Blalock Electric's decision to "discharge" him.
An action is considered to be "materially adverse" to an employee if it might have dissuaded an objectively reasonable employee from engaging in statutorily-protected conduct. Burlington Northern Sante Fe Railway Co. v. White, 548 U.S. 53, 67-71, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).
In order to establish that he engaged in statutorily-protected conduct, Howard must show that he somehow "opposed" illegal discrimination. In Crawford v. Metropolitan Government of Nashville Davidson County, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009), the Supreme Court indicated that an individual can "oppose" an unlawful act of discrimination simply by refusing to assent to it. Speaking through Justice Souter, the Supreme Court explained:
"Oppose" goes beyond "active, consistent" behavior in ordinary discourse, where we
would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it. Countless people were known to "oppose" slavery before Emancipation, or are said to "oppose" capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it "opposition" if an employee took a stand against an employer's discriminatory practices not by "instigating" action, but by standing pat, say, by refusing to follow a supervisor's order to fire a junior worker for discriminatory reasons.
Crawford, 129 S.Ct. at 851. Because Howard
actively attempted to have Blalock rectify the alleged "hostile work environment" at the UCP site by requesting a meeting to discuss the situation and later seeking a transfer to a different work location, his conduct easily constituted "opposition" under the standard enunciated by the Supreme Court in
Crawford. Howard must also show that, at the time of his "opposition," he was under an objectively reasonable belief that the conduct that he was "opposing" was actually violative of Title VII.
Clark County School District v. Breeden, 532 U.S. 268, 269-271, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001);
Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006);
Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996). Since it has already been determined that a triable issue exists as to whether Howard's work environment at the UCP site was sufficiently hostile or abusive to constitute an actionable violation of Title VII, it follows
a fortiori that Howard can show that he acted under an objectively reasonable belief that he was "opposing" a statutory violation. Hence, Howard has established (for purposes of summary judgment) that he engaged in statutorily-protected conduct.
It remains to be determined whether Howard can establish the existence of a causal relationship between his statutorily-protected conduct and Blalock Electric's "materially adverse" action against him. Howard testified that he had spoken with Kephart on the morning of June 10, 2005, asking to be moved to a different work location. Howard Dep. at 79. According to Howard, Kephart stated that Balock would contact him to discuss the matter. Id. Howard denied that he had expressed an intention to resign. Id. at 79-80. He explained that he had unsuccessfully tried to reach Blalock after returning home. Id. at 81. Howard stated that he had finally spoken to Balock on June 16, 2005, at which point Blalock informed him that his decision to leave the UCP site without notice had been construed as a resignation. Id. at 81-82.
Blalock testified that he had spoken with Howard on June 10, 2005, and that Howard had indicated that he no longer wanted to work for Blalock Electric. Blalock Dep. at 73-79. Blalock stated that Howard had not specifically requested a transfer to a different work location until the following week, and that Blalock Electric would not re-employ Howard because of a policy precluding the rehiring of an individual who had terminated his or her employment relationship with the company without providing adequate notice of his or her intention to do so. Id. at 95. The rehiring of Howard was apparently never given serious consideration until after the filing of his administrative complaint with the PHRC, at which point Blalock offered Howard a position in order to resolve the ongoing dispute. Id. at 97.
It is undisputed that Howard never signed a letter expressing an intention to resign. Kephart testified that she could not remember whether Blalock Electric had typically asked departing employees to sign letters of resignation. Kephart Dep. at 77. Under these circumstances, a reasonable trier of fact could conclude that Howard never actually resigned, and that his employment relationship with Blalock Electric was terminated because of his request for a transfer to a different work location. Given that Howard had just met with Blalock and Kephart two days earlier about race-based harassment at the UCP site, the "context" of his request for a transfer was clearly indicative of his "opposition" to the "discrimination" that he was experiencing. Curay-Cramer v. Ursuline Academy of Wilmington, Delaware, Inc., 450 F.3d 130, 135 (3d Cir. 2006) (recognizing that "opposition to an illegal employment practice must identify the employer and the practice-if not specifically, at least by context"). Because Howard was "discharged" almost immediately after requesting a transfer, an inference of a retaliatory motive on the part of Blalock Electric could certainly be drawn. Marra v. Philadelphia Housing Authority, 497 F.3d 286, 302 (3d Cir. 2007) ("In certain narrow circumstances, an `unusually suggestive' proximity in time between the protected activity and the adverse action may be sufficient, on its own, to establish the requisite causal connection."). Howard has clearly established a prima facie case of retaliation under Title VII, § 1981 and the PHRA.
Howard's prima facie case of retaliation shifts the burden of production to Blalock Electric to articulate a legitimate, nondiscriminatory reason for "discharging" Howard. Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006). In Burdine, the Supreme Court made the following observations about the defendant's burden of production in this situation:
The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. See [
Board of Trustees ofKeene State College v.]
Sweeney, [
439 U.S. 24,] 25 [(1978)]. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish
this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiff's prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext. The sufficiency of the defendant's evidence should be evaluated by the extent to which it fulfills these functions.
Burdine, 450 U.S. at 254-256 (footnotes omitted). Although Blalock Electric argues that Howard was not actually "discharged," the Court must assume that Howard was "discharged" at this stage.
Prise, 657 F.Supp.2d at 593.
Coposky testified that Howard's performance at the UCP site had been deficient. Coposky Dep. at 11. Nonetheless, Blalock Electric does not contend that Howard was terminated for performance-related reasons. Instead, Blalock testified that Howard had not been reassigned to a different work location because of his alleged decision to "quit." Blalock Dep. at 82. Blalock explained that he generally did not reassign (or rehire) employees who had already left his company without notice. Id. at 95. He stated that he had later been willing to rehire Howard only for the purpose of resolving the administrative proceedings pending before the PHRC. Id. at 97. Although Blalock's testimony concerning Howard's alleged resignation cannot be credited (at this stage) in light of Howard's conflicting testimony, it is nevertheless sufficient to satisfy Blalock Electric's burden of production under Burdine.
The factual inquiry has proceeded "to a new level of specificity," thereby giving Howard "a full and fair opportunity to demonstrate pretext." Burdine, 450 U.S. at 255-256. Blalock Electric essentially argues that its "reason" for "discharging" Howard was Howard's own decision to "discharge" himself. Def.'s Br. 13-14. Howard attempts to discredit this proffered reason simply by denying its factual premise. Pl.'s Br. 15-16. In other words, Howard contends that he never resigned, and that Blalock Electric's assertion that he did is simply false. Id. The respective positions of Howard and Blalock Electric are supported by conflicting deposition testimony given by Howard and Blalock. Howard Dep. at 79-82; Blalock Dep. at 73-79. A trier of fact would have to discredit Blalock's testimony in order to credit Howard's testimony. This Court cannot make credibility-related findings when ruling on a motion for summary judgment. Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1024 (3d Cir. 2008). Viewing the evidence in the light most favorable to Howard, the Court is convinced that a reasonable trier of fact could find Blalock Electric's proffered "reason" for "discharging" Howard ( i.e., its explanation that Howard was not truly "discharged") to be unworthy of credence. For this reason, Blalock Electric's motion for summary judgment must be denied with respect to Howard's retaliation claims under Title VII, § 1981 and the PHRA. Reeves, 530 U.S. at 148 ("Thus, a plaintiff's prima facie case, combined with sufficient evidence that the employer's justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.").
In determining that a genuine issue of material fact exists as to whether Blalock Electric "discharged" Howard in retaliation for his "opposition" to unlawful discrimination, the Court expresses no opinions concerning issues that have no direct relevance to Blalock Electric's motion for summary judgment. Since Howard contends that he did not resign, and that he merely wanted to be transferred to another work location, the Court has no occasion to consider whether he would have been justified in resigning had he chosen to do so. A plaintiff proceeding on a theory of "constructive discharge" must establish that his or her working conditions had become "so intolerable that a reasonable person in his [or her] position would have felt compelled to resign." Hill v. Borough of Kutztown, 455 F.3d 225, 232, n. 7 (3d Cir. 2006). To make such a showing, a plaintiff must establish not merely the existence of a "hostile work environment," but also that his or her resignation "qualified as a fitting response." Suders, 542 U.S. at 134. The instant motion for summary judgment must be denied regardless of whether Howard would have been justified in
resigning, since Howard did not testify that he had actually resigned. It is also worth noting that an employee has no statutory right to "oppose" unlawful discrimination in a manner that is "disruptive" or "disorderly." Laughlin v. Metropolitan Washington Airports Authority, 149 F.3d 253, 260 (4th Cir. 1998); Hubbell, 688 F.Supp.2d at 440-441. Although Howard had the right to "oppose" what he reasonably perceived to be unlawful discrimination, it is not clear whether, under the precise circumstances of this case, he was justified in refusing to continue working at the UCP site. Blalock Electric simply argues that Howard "quit." Def.'s Br. 15-16. Blalock testified that Howard had expressed an intention to cease his employment relationship with the entire "company." Blalock Dep. at 77. Blalock did not claim that Howard had simply refused to work at a particular job location ( i.e., the UCP site), nor did he state that it would not have been feasible for Blalock Electric to accommodate Howard's request for a transfer. There is a genuine factual dispute not only as to why Howard was "discharged," but also as to whether he was "discharged." Since Blalock Electric does not argue that Howard's refusal to work at the UCP site was the reason for his termination, the Court has no occasion to consider whether, under the circumstances of this case, such a refusal would have itself been a lawful reason for Blalock Electric to "discharge" Howard. At this juncture, it suffices to say that, in light of the specific positions advanced by the parties, there is a genuine issue of material fact as to whether Blalock Electric "discharged" Howard in retaliation for his "opposition" to unlawful discrimination.
It must be noted, however, that Howard cannot prevail at trial simply by establishing that he subjectively intended to remain an employee of Blalock Electric when he spoke with Kephart on June 10, 2005. Since the dispositive question is whether Blalock Electric discriminated against Howard because of his statutorily-protected activity, Howard cannot prevail simply by showing that Blalock and Kephart were "wrong or mistaken" about what he intended. Fuentes, 32 F.3d at 765. Instead, he must establish that Blalock's decision to "discharge" him was motivated by a retaliatory animus. Venter v. Potter, 694 F.Supp.2d 412, 429-430 (W.D.Pa. 2010).
VI. CONCLUSION
When viewed in the light most favorable to Howard, the evidence suggests that Howard's work environment at the UCP site was sufficiently hostile or abusive to be violative of Title VII, § 1981 and the PHRA, and that Blalock Electric was negligent in failing to appropriately remedy the situation. Blalock Electric's motion for summary judgment will be denied with respect to Counts I, II and III of Howard's complaint. Compl. at ¶¶ 43-51. Although some of Howard's co-workers may have engaged in racially-motivated harassment, there is no evidence that Blalock Electric "discharged" Howard because of his race. Therefore, the motion for summary judgment will be granted with respect to Counts IV, V and VI. Id. at ¶¶ 52-60. If Howard's testimony is believed, a reasonable trier of fact could conclude that he was "discharged" by Blalock Electric in retaliation for his "opposition" to unlawful discrimination. Accordingly, Blalock Electric's motion for summary judgment will be denied with respect to Counts VII, VIII and IX. Id. at ¶¶ 61-69. An appropriate order follows. AND NOW, this 21st day of September, 2010, this matter coming before the Court on the Motion for Summary Judgment filed by the Defendant ( Document No. 23), IT IS HEREBY ORDERED that the Motion for Summary Judgment is GRANTED with respect to Counts IV, V and VI of the Plaintiff's Complaint and DENIED with respect to Counts I, II, III, VII, VIII and IX of the Complaint.