Opinion
1:19-cv-00338
03-26-2021
LEIGH ANN KANISH, Plaintiff v. CRAWFORD AREA TRANSPORTAION AUTHORITY, Defendant
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
ECF NO. 23
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
I. Introduction and Recommendation
Plaintiff Leigh Ann Kanish (Kanish) commenced this action against her former employer, the Crawford Area Transportation Authority (CATA), alleging that her immediate supervisor, Benjamin Walker (Walker), subjected her to unwelcome sexual comments and gestures so severe and pervasive that she ultimately felt compelled to resign her employment. Her six-count Complaint asserts quid pro quo and hostile environment sex discrimination claims under Title VII of the Civil Rights Act of 1964 (Counts I and III) and the Pennsylvania Human Relations Act (PHRA) (Counts II and IV) as well as retaliation claims under Title VII (Count V) and the PHRA (Count VI). ECF No. 1. Arguing that the record establishes as a matter of law that it is not liable for Walker's alleged misconduct, CATA has moved for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons that follow, it is respectfully recommended that CATA's motion be DENIED.
II. Facts Supported by the Record
The following facts are taken from CATA's Concise Statement of Material Facts (ECF No. 25) as well as Kanish's Responsive Concise Statement of Material Facts (ECF No. 28-1). Kanish also filed a Counterstatement of Facts. ECF No. 30. CATA did not file a response to the additional facts Kanish asserted in her Responsive Concise Statement of Material Facts or in her Counterstatement of Facts. In accordance with Local Civil Rule 56, the Court should consider those facts that have evidentiary support in the record as admitted for purposes of deciding the instant motion. See LCvR 56(E); see also Focht v. Nationstar Mortg., LLC, 2020 WL 5017643, at *2 (W.D. Pa. Aug. 25, 2020), reconsideration denied, 2020 WL 6866517 (W.D. Pa. Nov. 16, 2020). For purposes of the pending motion, all facts are undisputed unless otherwise noted. Citation to these documents will largely be omitted as the parties are familiar with their filings and the summary judgment record. Where particularly relevant, where needed to highlight a dispute, or where a direct quotation is rendered, the record will be cited.
Kanish commenced employment at CATA on February 17, 2012. She first worked as a parttime bus driver and later as a fixed route supervisor. She continued in that position until her employment ended on May 9, 2017. In February of 2017, Benjamin Walker (Walker) was promoted to the position of Operations Manager at CATA and became Kanish's immediate or direct supervisor. Karen Clark, CATA's Deputy Director, was Walker's immediate supervisor. Clark, in turn, answered to Timothy Geibel, CATA's General Manager. ECF No. 25, ¶ 7; ECF No. 25, p. 338. Kanish, Walker, Clark, and Geibel worked together in the same building.
After Walker became her supervisor, Kanish asserts, he subjected her to repeated acts of sexual harassment that ultimately led her to resign, first on April 20, 2017, and then, after briefly returning to work, again on May 9, 2017, Kanish testified that Walker repeatedly simulated sexual activity with Kanish's chair and grabbed his genitals in her presence, commented on her breasts, sexually propositioned her, discussed his desire to have sexual relations with her, asked her for oral sex, and stated that he wanted to have sex with her daughter. ECF No. 30, ¶¶ 2-3. Walker also disparaged Kanish's husband's alleged sexual deficiency following his treatment for prostate cancer. Kanish testified that Walker told her to “come into my office, I can make you squeal like a pig, ” a comment allegedly overheard by other employees, including Laura King, CATA's human resources manager. The record supports that multiple employees witnessed aspects of Walker's behavior. For example, Steven Nadonly, a CATA driver, submitted a letter after Kanish left her employment stating that he witnessed Walker “making inappropriate comments and physically touching Leigh Ann Kanish in her office.” ECF No. 26, p. 548. Nadonly further elaborated that Walker walked up to Kanish and “‘humped' her from behind and “made gestures to her by grabbing his crotch and saying, ‘I got something for you'.” Id. Another CATA employee, Bruce Hanold, also submitted a letter largely corroborating both Nadonly's and Kanish's descriptions of Walker's behavior and recounting other instances of Walker's sexually inappropriate conduct towards Kanish. Id., p. 549. A similar letter was submitted by CATA employee Larry McKnight. Id., p. 550. McKnight stated that Walker's behavior in this regard was constant and that “on many occasions I would leave the office because it really frustrated me.” Id., pp. 551-552. McKnight also stated that he and others feared retaliation if they would have contemporaneously reported Walker's harassment “because Mr. Walker is the Operations Manager (our supervisor) and our Human Relation Rep. and Mr. Walker are very close friends as well as the Deputy Director Karen Clark.” Id., p. 552.
Kanish acknowledges that she did not report Walker's sexual harassment to Clark or Geibel during her employment. ECF No. 25, ¶¶ 9, 13; ECF No. 28 ¶¶ 9, 13. Kanish also did not report Walker's behavior to King, CATA's human resources manager, although, as noted, King reportedly witnessed at least one instance when Walker made a sexual and highly offensive comment to Kanish. Kanish was aware that, according to CATA's Employee Handbook, she was required to notify King of any instances where Kanish believed “she was being treating (sic) inappropriate (sic).” Id., ¶ 19. Kanish also acknowledges that she attended a meeting on October 2, 2016, where the topic of sexual harassment was discussed. Id., ¶ 22.
Kanish initially resigned her position with CATA on April 20, 2017. Id., ¶ 46. On that same date, she met with Geibel but did not mention any alleged harassment. Id., ¶ 48. Geibel called her a “good employee” and indicated that “she should come back to work.” Id., ¶ 49. Three days later, Kanish told Geibel that she would come back to work, but she could not work with Clark. Id., ¶ 50. Kanish acknowledged that Walker would be her supervisor if she returned to CATA. Id., ¶ 51. Once again, she did not mention any problems she was having with Walker. Id., ¶ 54. Kanish did return to work at CATA and met with Walker, Clark, King, and Geibel about her job description on May 9, 2017. Id., ¶ 55. At some point later that day, she again resigned her position. Id., ¶ 9. This time, she did not return.
III. Procedural History and the Complaint
After exhausting her administrative remedies, Kanish filed her Complaint against CATA on November 14, 2019. ECF No. 1. On December 31, 2019, CATA filed its Answer denying the material allegations of the Complaint. ECF No. 6. After the close of discovery, CATA filed its motion for summary judgment, concise statement of material facts, brief, and appendix of exhibits. ECF Nos. 23-26. Kanish filed her brief in opposition to the motion, responsive concise statement of material facts, and a “Counter Statement of Facts.” ECF Nos. 28-30. CATA did not respond to Kanish's Counterstatement of Facts but did file a Reply Brief. ECF No. 31. The undersigned conducted oral argument on CATA's motion on March 24, 2021. Thus, CATA's motion has been fully briefed and argued and is ready for disposition.
IV. Standard of Decision
Federal Rule of Civil Procedure 56(a) requires the court to enter summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Under this standard “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A disputed fact is “material” if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence is such that a reasonable jury could find in favor the nonmoving party on that issue. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether a genuine issue of material fact remains for trial, the court must view the record and all reasonable inferences to be drawn therefrom in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. Instead, once the movant satisfies its burden of identifying evidence that demonstrates the absence of a genuine issue of material fact, the nonmoving party must go beyond his pleadings with affidavits, depositions, answers to interrogatories or other record evidence to demonstrate specific material facts that give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Further, under Rule 56, a defendant may seek summary judgment by pointing to the absence of a genuine fact issue on one or more essential claim elements. The Rule mandates summary judgment if the plaintiff then fails to make a sufficient showing on each of those elements. When Rule 56 shifts the burden of production to the nonmoving party, “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992). However, where the defendant seeks summary judgment based on an affirmative defense concerning which “it would bear the burden of proof at trial, ” it “must show that it has produced enough evidence to support the findings of fact necessary to win.” El v. Southeastern Pennsylvania Transportation Authority, 479 F.3d 232, 237 (3d Cir. 2007). The burden to produce evidence to establish a genuinely disputed issue of material fact concerning the defense shifts to the nonmoving party only if the movant satisfies this threshold burden of production. Karpiel v. Ogg, Cordes, Murphy & Ignelzi, LLP, 297 Fed.Appx. 192, 194 (3d Cir. 2008).
V. Analysis
A. CATA's motion should be denied because genuinely disputed issues of material fact remain regarding the effectiveness of its anti-discrimination policy and whether Kanish's failure to report Walker's harassment was unreasonable.
1. CATA does not challenge the sufficiency of the record to support the essential elements of Kanish's hostile work environment, quid pro quo, or retaliation claims under Title VII or the PHRA.
Under Title VII, an employer cannot “‘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 Prod. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (quoting 42 U.S.C. § 2000e-2(a)(1)). “[T]he phrase ‘terms, conditions, or privileges of employment' evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (internal citations, quotation marks, and brackets omitted). “Thus, ‘[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.'” Id. (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (some internal quotation marks omitted)). “To succeed on a hostile work environment claim, the plaintiff must establish that (1) [she] suffered intentional discrimination because of [her] sex, (2) the discrimination was severe or pervasive, (3) the discrimination detrimentally affected the plaintiff, (4) the discrimination would detrimentally affect a reasonable person 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) (quoting Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006), overruled in part on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)).
Quid pro quo sexual harassment has been defined as
unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature [where] (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment [or] (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.Boneberger v. Plymouth Twp., 132 F.3d 20, 27 (3d Cir. 1997) (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1296 (3d Cir. 1997) (abrogated on unrelated grounds)). Finally, to establish a Title VII retaliation claim, the plaintiff must prove the following elements: “(1) she engaged in conduct protected by Title VII; (2) the employer took adverse action against her; and (3) a causal link exists between her protected conduct and the employer's adverse action.” Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016) (citing Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 201 (3d Cir.1994)). The respective elements of hostile work environment, quid pro quo sexual harassment, and retaliation under Title VII are identical to the elements of each's counterpart claim under the PHRA. See Weston v. Pennsylvania, 251 F.3d 420, 425 n.3 (3d Cir. 2001) (recognizing that “[t]he proper analysis under Title VII and the Pennsylvania Human Relations Act is identical, as Pennsylvania courts have construed the protections of these two acts interchangeably”).
For purposes of its motion for summary judgment, CATA does not argue that the record is insufficient to support the essential elements of any of Kanish's six claims in this case. Instead, CATA's motion seeks summary judgment on all six counts of the Complaint on the grounds that CATA exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and Kanish unreasonably failed to take advantage of any preventive or corrective opportunities provided by CATA or to avoid harm otherwise. Thus, CATA's motion is based entirely on the Faragher/Ellerth affirmative defense to sexual harassment claims.
2. The record is sufficient to allow CATA to raise Faragher/Ellerth affirmative defense at trial but insufficient to support the entry of summary judgment in favor of CATA based on that defense.
The Faragher/Ellerth affirmative defense derives its name from two United States Supreme Court cases- Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2257, 141 L.Ed.2d 662 (1998) and Burlington Indus. Inc., v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). These cases proceed from the premise that an employer is not strictly liable for sexual harassment perpetrated by its supervisors, see Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), and set out the standards for determining when employer liability will attach.
The first step in this analysis is to determine whether the employee has experienced a tangible employment action, that is, “a significant change in employment status, such as hiring, firing, failing to promote, reassignment, or a decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761, 765. Where the employee has sustained a tangible employment action, the employer may not assert the Faragher/Ellerth affirmative defense. Id. This is because “a tangible employment action taken by the supervisor becomes, for Title VII purposes, the act of the employer, ” triggering vicarious liability. Id., at 762. See also Thomas v. Bronco Oilfield Servs., 2020 WL 7021474, at *15 (W.D. Pa. Nov. 30, 2020) (citing Andreoli v. Gates, 482 F.3d 641, 648 (3d Cir. 2007)).
In cases where the employee has not suffered a tangible employment action, the employer can defeat liability under the Faragher/Ellerth defense by proving two elements: (1) that the employer exercised reasonable care both to prevent and to correct promptly any sexually harassing behavior and (2) that the plaintiff-employee unreasonably failed to take advantage of any preventative or corrective opportunities that were provided by the employer or otherwise available. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. See also Wakefield v. Beaver Area Sch. Dist., 2020 WL 4925679, at *3 (W.D. Pa. Aug. 21, 2020) (citing Huston v. P&G Paper Prods. Corp., 568 F.3d 100, 104-105 (3d Cir. 2009)).
Ellerth involved a claim of quid pro quo sexual harassment, but the Court did not find the distinction between quid pro quo and hostile work environment harassment helpful to a vicarious liability analysis. See id., at 753-54. Instead, the Court looked to the principles underpinning common law agency and adopted the foregoing test that distinguishes between cases where “the supervisor takes a tangible employment action against the subordinate and those in which he does not.” Id., at 75565; Faragher, 524 U.S. at 805-07. See also Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 215 (3d Cir. 2017) (applying agency principles). Accordingly, the analysis to determine the availability of the Faragher/Ellerth defense applies equally to quid pro quo harassment claims and hostile work environment harassment claims. Id.
In this case, CATA's motion for summary judgment must fail if the record is sufficient to support a finding that Kanish experienced a tangible employment action. If CATA's motion clears this hurdle, CATA must still demonstrate the absence of any genuinely disputed issues of material fact with respect to both elements of the Faragher/Ellerth defense. Accordingly, the Court will first address whether Kanish was subjected to a tangible employment action and only reach the two elements of the Faragher/Ellerth defense if the record establishes that she did not.
CATA argues that neither Walker nor any other supervisor took a tangible employment action against Kanish. CATA points out, and Kanish does not dispute, that she resigned from her position-not once, but twice. ECF No. 24, pp. 8-9; ECF No. 25, pp. 55-57. But Kanish maintains Walker's sexual harassment left her no choice except to resign. ECF No. 28, p. 3. In other words, Kanish claims that she was “constructively discharged” from her employment and that this constructive discharge constituted a tangible employment action. Based upon this, she submits, the Faragher/Ellerth affirmative defense is not available to CATA. Kanish's argument fails as a matter of law. The Supreme Court has held that where, as in this case, “an official act does not underlie the constructive discharge, ” it is not considered a “tangible employment action, ” precluding the Faragher/Ellerth defense. Pennsylvania State Police v. Suders, 542 U.S. 129, 148, 124 S.Ct. 2342, 2355, 159 L.Ed.2d 204 (2004). Tangible employment actions include “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Minarsky v. Susquehanna County, 895 F.3d 303, 310 (3d Cir. 2018) (quoting Ellerth, 524 U.S. at 761). In Suders, the Supreme Court explained that such actions require “an official act of the enterprise.” Id. (quoting Ellerth, 524 U.S., at 762, 118 S.Ct. 2257). The Court went on to hold that no official act of the enterprise is present where a constructive discharge is based solely on the supervisor's harassment. Id. The Supreme Court explained this distinction and the rationale for it as follows:
To be sure, a constructive discharge is functionally the same as an actual termination in damages-enhancing respects. ... [B]oth “en[d] the employer-employee relationship, ” and both “inflic[t] ... direct economic harm.” . But when an official act does not underlie the constructive discharge, the Ellerth and Faragher analysis, we here hold, calls for extension of the affirmative defense to the employer.. Absent “an official act of the enterprise, ” [see Ellerth, 524 U.S., at 762, 118 S.Ct. 2257], as the last straw, the employer ordinarily would have no particular reason to suspect that a resignation is not the typical kind daily occurring in the work force. And as Ellerth and Faragher further point out, an official act reflected in company records-a demotion or a reduction in compensation, for example-shows “beyond question” that the supervisor has used his managerial or controlling position to the employee's disadvantage. See Ellerth, 524 U.S., at 760, 118 S.Ct. 2257. Absent such an official act, the extent to which the supervisor's misconduct has been aided by the agency relation, as we earlier recounted, . is less certain. That uncertainty, our precedent establishes, . justifies affording the employer the chance to establish, through the Ellerth/Faragher affirmative defense, that it should not be held vicariously liable.Id. at 148-49, 124 S.Ct. at 2355 (some internal citations omitted).
Here, the Complaint does not allege, nor does the record support, that Kanish experienced a tangible employment action that would preclude CATA from asserting the Faragher/Ellerth affirmative defense. Kanish's employment was not terminated by company action. She was not demoted, subjected to a material reduction in pay, or transferred to another less desirable position. Of course, this does not mean that she is precluded from asserting at trial that she was constructively discharged or that, if she establishes that claim, it is without significance. As the Suders Court noted, “a constructive discharge is functionally the same as an actual termination in damages-enhancing respects. ..” Id. at 148, 124 S.Ct. at 2355. In other words, Kanish may claim damages flowing from the alleged constructive discharge. The absence of a tangible employment action accompanying the alleged constructive discharge simply means that CATA is not precluded from raising the Faragher/Ellerth defense. Having determined that CATA may raise this defense, the analysis now shifts to whether issues of material fact exist as to its two components.
Where the Faragher/Ellerth affirmative defense is available to the employer, “the cornerstone” of its application “is reasonableness: of the employer's preventative and corrective measures, and the reasonableness of the employee's efforts (or lack thereof) to report misconduct and avoid further harm.” Minarsky, 895 F.3d at 311. As to the first element of the affirmative defense, “the existence of a functioning anti-harassment policy could prove the employer's exercise of reasonable care ..” Id. (citation omitted; first emphasis added). The mere existence of an antidiscrimination policy, however, does not establish that a defendant has met its burden for the first element of the defense. Tillison v. Capitol Bus Co., 2008 WL 2704536, at *8 (M.D. Pa. July 8, 2008) (citing Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 118 (3d Cir.1999) (“Ellerth and Faragher do not, as the defendants seem to assume, focus mechanically on the formal existence of a sexual harassment policy, allowing an absolute defense to a hostile work environment claim whenever the employer can point to an anti-harassment policy of some sort.”); EEOC v. Smokin' Joe's Tobacco Shop, Inc., 2007 WL 1258132, at *7 (E.D. Pa. Apr.27, 2007) (holding that dissemination of antidiscrimination policy in employee handbook is not a sufficient basis for granting summary judgment to defendant).
Proof of the second element of the defense requires the employer to show that the plaintiff unreasonably “failed to avail herself of the employer's preventative or corrective opportunities.” Id. Put another way, the employer's burden is satisfied under this second element when they show that the employee “failed to exercise reasonable care to avoid harm.” Id. (citations omitted). This second component of the Faragher/Ellerth defense is tied to the objective of Title VII-to avoid harm, rather than provide redress. Minarsky, 895 F.3d at 313 (quoting Faragher, 524 U.S. at 806-07, 118 S.Ct. 2275 (“[N]o award against a liable employer should reward a plaintiff for what her own efforts could have avoided.”)). Accordingly, an employee's complete failure to report sexual harassment may be sufficient to establish this second element for purposes of an employer's motion for summary judgment. Id. at 314. As the Court of Appeals explained in Minarsky, however, such a finding is always dependent upon the specific facts and circumstances of the case:
Although we have often found that a plaintiff's outright failure to report persistent sexual harassment is unreasonable as a matter of law, particularly when the opportunity to make such complaints exists, we write to clarify that a mere failure to report ones harassment is not per se unreasonable. Moreover, the passage of time is just one factor in the analysis. Workplace sexual harassment is highly circumstancespecific, and thus the reasonableness of a plaintiff's actions is a paradigmatic question for the jury, in certain cases. If a plaintiff's genuinely held, subjective belief of potential retaliation from reporting her harassment appears to be well-founded, and a jury could find that this belief is objectively reasonable, the trial court should not find that the defendant has proven the second Faragher/Ellerth element as a matter of law. Instead, the court should leave the issue for the jury to determine at trial.Id.
Kanish does not dispute that CATA had a policy against sexual harassment that was set out in an employee handbook. See ECF No. 25, p. 41. And Kanish also understood that CATA's employee handbook informed employees of certain procedures relating to claims of sexual harassment, including the requirement that an employee notify CATA's human resources office of inappropriate treatment. Id., pp. 4, 41. She also does not dispute that CATA contracted with an outside consultant to provide harassment training. Id., p. 4, ¶¶ 22, 26. CATA argues that the existence of those procedures, along with outside training, satisfy the first prong of the affirmative defense. See ECF No. 24, p. 8.
Kanish argues that notwithstanding the existence of the anti-harassment policy and procedures, genuine issues of material fact exist as to their effectiveness. See, e.g., Tillison, 2008 WL 2704536, at *10. Kanish contends that CATA's policy was merely a “sham and did not adequately prevent harassment.” ECF No. 28, p. 8. She points out, and the record supports, that Walker's behavior took place in front of other employees. Several coworkers of Kanish report that they saw Walker make highly offensive sexual gestures and comments directly to Kanish. See e.g., ECF No. 25, p. 96; ECF No. 30, ¶ 7; ECF No. 26, pp. 548-49; id., p. 549. In fact, Kanish testified that CATA's human resource manager, Laura King, was present when Walker told Kanish he would make her “squeal like a pig, ” but did nothing in response:
In support of her position, Kanish relies in part on multiple unsworn written statements of CATA employees that were not made under penalty of perjury. The Court normally may not rely upon unsworn statement on summary judgment unless they are made under penalty of perjury. See United States ex rel. Doe v. Heart Sol., PC, 923 F.3d 308, 315 (3d Cir. 2019). In this case, however, CATA has never objected to the Court's consideration of the statements, even after the Court sua sponte raised the issue during oral argument on CATA's motion for summary judgment. Given this, CATA has waived any objection to the Court's consideration of the statements. In any event, the undersigned's conclusion that genuine issues of material fact preclude summary judgment would remain the same even if the statements were excluded from consideration.
Q: You said there were witnesses there, who were the witnesses?
A: [Walker] made a comment to me about having sex with me or something to that effect and McKnight about having sex with me, or something to that effect, Laura [King] got disgusted and walked out and before Laura left, I said Ben, you are nothing but a pig. Ben's response to me was, come in my office, I can make you squeal like a pig.ECF No. 25, p. 69. There is also support in the record that employees in addition to Kanish had little or no faith in CATA's enforcement of its discrimination policy and feared retaliation if they were to report Walker's misconduct. See ECF No. 26, pp. 548, 551-52.
Based on the record in this case, a jury could reasonably find that CATA's sexual harassment policy was ineffective, and that Walker violated CATA's policy with relative impunity. Accordingly, genuine issues of material fact exist concerning the reasonableness of CATA's preventative and corrective measures. These disputes of fact preclude summary judgment for CATA based on the defense.
Material issues of fact also exist regarding the second element of the Faragher/Ellerth defense-that the plaintiff unreasonably failed to avail herself of the employer's “preventive or corrective opportunities.” Regarding this issue, CATA's position focuses on Kanish's admission that she remained silent and did nothing to report Walker's harassment. See, e.g., ECF No. 25, pp. 34, ¶¶ 9, 13, 19. But, as the Court of Appeals has explained, “a mere failure to report one's harassment is not per se unreasonable.” Minarsky, 895 F.3d at 314 (emphasis in original). Indeed, a jury may reasonably find that Kanish's silence was subjectively sincere and not objectively unreasonable under the totality of the circumstances.
For example, Kanish testified that she feared retaliation if she filed a complaint about Walker's harassment:
Q: If you had complained about Ben [Walker], what did you worry about what was going to happen to you?
A: I was going to lose my job, I was afraid. It was a lot of things going on, people were being let go left and right. I didn't feel I had that trust from anybody that I would have had to report to anymore.
Q: What do you think Ben [Walker] would have done if he found out that you had complained about him?
A: He would have fired me for some stupid reason.ECF No. 25, at p. 100. She also testified that she could not report Walker's harassment because he “threatened me that he was a police officer and I just did not know where to go with this.” Id., p. 67. As noted, the record also includes statements from coworkers who corroborate Kanish's fear of reprisal. One coworker stated that Walker “feels he is untouchable, because he is a supervisor and also a cop.” ECF No. 26, p. 548. And, as previously discussed, there is support in the record that King was on notice of Walker's misconduct and did nothing to address it, further supporting Kanish's subjective belief that resort to CATA's discrimination reporting procedures would have been futile. Given the record, the Court cannot say as a matter of law that Kanish's failure to report Walker's harassment pursuant to CATA's policy was unreasonable.
VI. Conclusion
Because CATA has failed to demonstrate the absence of genuine disputes of material fact or an entitlement to judgment as a matter of law on the Faragher/Ellerth defense-a defense concerning which it will bear the burden of proof at trial-the undersigned recommends that CATA's motion for summary judgment be DENIED.
VIII. Notice to the Parties
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, the Parties shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. The failure to file timely objections will constitute a waiver of a Party's appellate rights.