Brunson v. Pennsylvania Human Relations Commission

BRIEF IN SUPPORT re MOTION for Summary Judgment

M.D. Pa.February 24, 2017

i IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA KEVIN “KAABA” BRUNSON, : No. 1:15-CV-0272 Plaintiff, : : (Judge John E. Jones, III) v. : : Electronically Filed Document PENNSYLVANIA HUMAN RELATIONS COMMISSION, : : Defendant. : Complaint Filed 2/6/15 DEFENDANT’S BRIEF IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT Respectfully submitted, JOSH SHAPIRO Attorney General By: s/M. Abbegael Giunta M. ABBEGAEL GIUNTA Office of Attorney General Senior Deputy Attorney General 15th Floor, Strawberry Square Attorney ID #94059 Harrisburg, PA 17120 Phone: (717) 787-1179 KENNETH L. JOEL Chief Deputy Attorney General mgiunta@attorneygeneral.gov Chief, Civil Litigation Section Date: February 24, 2017 Counsel for Defendant Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 1 of 25 1 TABLE OF CONTENTS I. STATEMENT OF THE CASE. .................................................................. 2 II. STATEMENT OF RELEVANT FACTS .................................................... 2 III. LEGAL ARGUMENT ................................................................................ 2 A. PLAINTIFF’S SECTION 1981 CLAIM IS BARRED BY THE DEFENDANT’S ELEVENTH AMENDMENT IMMUNITY. ......... 2 B. THE DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT FOR THE TITLE VII CLAIMS AGAINST IT BECAUSE PLAINTIFF HAS FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES. ..... 4 C. THE DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT FOR THE DISCRIMINATION CLAIMS AGAINST IT.. ..................................................... 9 D. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S TITLE VII RETALIATION CLAIM BECAUSE IT DID NOT RETALIATE AGAINST PLAINTIFF. .......................... 23 IV. CONCLUSION ........................................................................................ 23 CERTIFICATE OF WORD COUNT.................................................................. 24 CERTIFICATE OF SERVICE ............................................................................ 25 Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 2 of 25 2 STATEMENT OF THE CASE Plaintiff, Kevin “Kaaba” Brunson, initiated the within action against the Pennsylvania Human Relations Commission (“PHRC”) by filing a complaint on February 6, 2015 alleging violations Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Brunson alleges that he was discriminated against on the basis of his race and gender, was retaliated against, and was constructively discharged from his employment with the Commission. Defendants have filed a motion for summary judgment and a statement of material and undisputed facts. This is their brief in support of the motion. STATEMENT OF RELEVANT FACTS The facts material to Brunson’s action are detailed in the Defendant’s Statement of Material and Undisputed Facts (hereafter “SMF”) and for the sake of brevity will not be repeated here. Pertinent facts from the SMF will be referenced in the argument section of this brief. ARGUMENT I. PLAINTIFF’S SECTION 1981 CLAIM IS BARRED BY THE DEFENDANT’S ELEVENTH AMENDMENT IMMUNITY. The Eleventh Amendment to the United States Constitution bars suits by private individuals against nonconsenting states in federal court, unless Congress has validly abrogated the state's immunity, or the state has waived its immunity. See Nevada Dept. of Human Res. v. Hibbs, 538 U.S. 721 (2003); College Savings Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 3 of 25 3 Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). Neither has occurred here. First, Congress did not validly abrogate states' immunity when it enacted § 1981. For Congress to abrogate immunity, the statute at issue must be enacted under Section Five of the Fourteenth Amendment, and there must be present in the statute an explicit Congressional intent to include states as defendants. See Hibbs, 123 S.Ct. at 1976; Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000). A number of Circuit Courts have held such an intent to be lacking in § 1981. See Foulks v. Ohio Dept. of Rehab. and Corr., 713 F.2d 1229, 1232-33 (6th Cir.1983) (holding that there was no evidence of a clear congressional purpose to use the power to abrogate Eleventh Amendment immunity in § 1981 and so setting aside damages award under § 1981 against state agency); see also Sessions v. Rusk State Hosp., 648 F.2d 1066, 1069 (5th Cir.1981) (“Unlike Title VII, Section 1981 contains no congressional waiver of the state's eleventh amendment immunity.”); Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179, 1184 (7th Cir.1982) (same). Second, Pennsylvania has not consented to be sued in federal court. 42 Pa. C.S. § 8521(b). Defendant Pennsylvania Human Relations Commission is a state agency created by statute within the Governor’s Office for the Commonwealth of Pennsylvania (43 P.S. § 956; see also Complaint at ¶ 6) and as such, Defendant is entitled to sovereign immunity as to Plaintiff’s claim pursuant to 42 U.S.C. § 1981. Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 4 of 25 4 See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984). Accordingly, Defendant must be granted summary judgment on Count II of the Complaint. II. THE DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT FOR THE TITLE VII CLAIMS AGAINST IT BECAUSE PLAINTIFF HAS FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES. In general, Title VII discrimination claims must be filed within ninety days of when the plaintiff receives a right-to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1); Ebbert v. Daimler Chrysler Corp., 319 F.3d 103, 115 n.14 (3d Cir. 2003); Mosel v. Hills Dep’t Store, 789 F.2d 251, 253 n.2 (3d Cir. 1986). When the actual date of receipt of the right-to-sue letter is known, that date controls. Seitzinger v. Reading Hosp. and Medical Center, 165 F.3d 236, 239 (3d Cir. 1999). “However, in the absence of other evidence, courts will presume that a plaintiff received [his or] her right-to-sue letter three days after the EEOC mailed it.” Id. (citing Fed. R. Civ. P. 6(e); Mosel, 789 F.2d at 253 n.2). “The ninety-day filing period acts as a statute of limitations in Title VII cases and cannot, in the absence of equitable considerations, be extended even one day.” Montecalvo v. Trump’s Taj Mahal Casino, No. 97-3876, 1997 WL 786985 at *3 (E.D.Pa. Nov. 26, 1997) citing Mosel, 789 F.2d at 253 (holding plaintiff’s complaint untimely because it was filed ninety-one days after receipt of right-to- sue letter). Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 5 of 25 5 In the present case, Brunson’s ninety days should have been triggered May 12, 2014 and his time for filing would therefore have run out as of August 10, 2014; making his February 6, 2015 complaint time-barred. However, Brunson claims that he did not receive the May 9, 2014 right-to-sue letter, despite the fact that it was sent to the correct address. SMF ¶ 122. This assertion is curious seeing as how the EEOC and Department of Justice successfully sent mail to Plaintiff at that same address both before and after the initial right-to-sue letter was issued. SMF ¶ 121. The May 9, 2014 right-to-sue letter was sent to Plaintiff via certified mail, but was later returned to the Department of Justice and marked “unclaimed”. SMF ¶ 117. In certain circumstances, “a right-to-sue letter may be deemed received even though the plaintiff did not actually see it.” Carl v. Western-Southern Life Ins. Co., No. 09-3990, 2010 WL 3860432 at * 2 (E.D.Pa. Sept. 30, 2010); see also Ebbert, 319 F.3d at 115, n.15 (citing with approval “precedent in other circuits holding that a notice letter correctly delivered to a complainant’s residence or postal box constitutes notice even though the complainant may not have seen the notice him or herself at the time of delivery”); Million v. Frank, 47 F.3d 385, 388 (10th Cir. 1995) (filing period ran from date of receipt by plaintiff’s wife). In ruling upon this issue, “courts have considered the degree to which the plaintiff himself is responsible for his own failure to receive the letter.” Carl, 2010 WL 3860432 at * Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 6 of 25 6 3 (granting defendant’s motion to dismiss the complaint as time-barred because Court could not conclude that plaintiff’s failure to receive the EEOC’s notice was due to no fault of his own); see also St. Louis v. Alverno College, 744 F.2d 1314 (7th Cir. 1984) (holding that 90-day limitations period began to run on date the EEOC notice was delivered to the most recent address provided by plaintiff because he failed to notify the EEOC of his change of address); Blakley v. Kansas City, Mo. Sch. Dist., No. 04-0555, 2005 WL 2475730, at *4 (W.D. Mo. Oct. 6, 2005). Notably, several other circuits have held that the ninety-day limitations period begins to run when delivery of an EEOC right-to-sue letter is attempted at the address on file for the plaintiff, even if that address turns out to be incorrect. See Vogel v. Am. Home Prods. Corp. Severance Pay Plan, No. 96-2674, 1997 WL 577578, at *3 (4th Cir. Sept. 17, 1997); Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 384 (9th Cir. 1997); Hill v. John Chezik Imports, 869 F.2d 1122, 1124 (8th Cir. 1989); Hunter v. Stephenson Roofing, Inc., 790 F.2d 472, 475 (6th Cir. 1986); cf. Lewis v. Conners Steel Co., 673 F.2d 1240, 1243 (11th Cir. 1982). The case law in this area is clear that a plaintiff must be diligent in preserving his legal rights. See Baldwin, 466 U.S. at 151; Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990); Garrison, 131 F. Supp. 2d at 591-92; Rockmore v. Harrisburg Property Service, 501 Fed. App’x 161, 164 (3d Cir. Oct. 17, 2012). Brunson did write two letters, one in May and another in July (SMF ¶¶ Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 7 of 25 7 118, 119), and did make telephone calls seeking the status of his notice, at some time prior to the last week of September of 2014, he had received verbal notice from a unit secretary at the Department of Justice that the notice had been issued in May but was returned to them. SMF ¶ 120. The Third Circuit has held that oral notice, such as this, can suffice to start the 90 day period. Ebbert at 116 citing Ball v. Abbot Advertising, Inc., 864 F.2d 419, 421 (6th Cir. 1988) (holding that a discrimination lawsuit was barred by the statute of limitations because the plaintiff's lawyer was told on the telephone that a “right to sue” letter had been issued and “courts are not required to proceed as if no such notice had been given”). In this matter, Brunson worked at the PHRC for nearly forty years and was well versed in the discrimination complaint process at both the PHRC and the EEOC as he had served as liaison to the EEOC and attended their conferences. SMF ¶ 57, 58, 114. There is no doubt he understood the implication of a right-to- sue letter. However, having heard the verbal notice that the right to sue had previously been issued in May and returned, he chose to do nothing from the summer of 2014 until the notice was reissued on November 10, 2014. SMF ¶ 121. Even using September 30, 2014 as the date on which Brunson spoke with the secretary and the statute was tolled, his ninety days ran on December 29, 2015; greater than 30 days before he filed the within action. Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 8 of 25 8 Because a plaintiff cannot sit on his rights or prevent the process from moving forward by his failure to claim vital correspondence, Brunson should be deemed to have received the May 9, 2014 right-to-sue letter, or to at a minimum have had notice during his telephone discussion with the DOJ secretary prior to the last week of September, 2014. Accordingly, as Brunson failed to file his complaint within ninety days of receipt of the May 9, 2014 right to sue letter, or his verbal notice from the DOJ, the complaint is time-barred and should be dismissed with prejudice. Defendant PHRC acknowledges that the ninety-day time limit in which a plaintiff must file his or her Title VII action is not a jurisdictional bar, but akin to a statute of limitations; therefore, the time limit is subject to equitable tolling. Seitzinger, 165 F.3d at 239-40. However, the case law “is clear that courts must be sparing in their use of equitable tolling.” Id. at 239. Equitable tolling may be granted where the plaintiff has “in some extraordinary way . . . been prevented from asserting his or her rights.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). In addition, “the principles of equitable tolling . . . do not extend to what is at best a garden variety claim of excusable neglect.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). In this case, there are no allegations that would support equitable tolling. Brunson has made no allegations that a motion for appointment of counsel was Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 9 of 25 9 pending; the court misled Brunson in believing he had done everything that was required of him; that Defendant PHRC actively misled Brunson; or that he timely asserted his rights in the wrong forum. See Baldwin, 466 U.S. at 151, 179; Seitzinger, 165 F.3d at 240. In addition, Brunson has over thirty-nine years of experience in the area of investigating, processing and litigating employment discrimination claims. SMF ¶ 57. As he purports to be the most qualified candidate to hold the position of Executive Director of the PHRC - the agency responsible for handling such claims in the Commonwealth - he undoubtedly knows his rights and what is expected of a litigant in preserving those rights. Plaintiff cannot possibly say he was, in some extraordinary way, prevented from asserting his rights. Given these facts, Plaintiff should not be permitted to invoke the doctrine of equitable tolling. III. THE DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT FOR THE DISCRIMINATION CLAIMS AGAINST IT. At Counts I and III of the Complaint, Brunson alleges that he suffered race and gender discrimination at the hands of Defendant in violation of Title VII when he was not hired for the Executive Director position. Pursuant to Title VII, it is an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 10 of 25 10 national origin.” 42 U.S.C. §2000e-2(a)(1). In order for a plaintiff to prevail on a Title VII disparate treatment claim under this provision, the plaintiff must prove purposeful discrimination. Patterson v. McLean Credit Union, 109 S.Ct. 2363, 2377 (1989); Weldon v. Kraft, 896 F.2d 793, 796 (3d Cir. 1990). In order to establish a prima facie claim for Title VII employment discrimination the plaintiff must demonstrate (1) that he is a member of a protected class; (2) that he was qualified for the position to which he applied; (3) that he was subject to an adverse employment action; and, (4) that similarly situated members of non-protected classes were treated more favorably. E.g., Frey v. Pennsylvania Airlines, 859 F.Supp. 137, 142 (M.D. Pa. 1992). Once plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to dispel this presumption of discrimination by articulating a legitimate, non-discriminatory reason for the defendant’s treatment of the plaintiff. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); Williams v. Giant Eagle Markets, Inc., 883 F.2d 1184, 1192 (3d Cir. 1989). If the defendant satisfies this prong, the presumption created by the plaintiff’s prima facie showing is eliminated. Burdine at 254-55. The plaintiff must then show, by a preponderance of the evidence, that the alleged non-discriminatory reasons proffered by the defendant are pretextual, and that the defendant intentionally discriminated against the plaintiff. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 11 of 25 11 Defendant does not deny, for purposes of summary judgment only, that Brunson may arguably satisfy his prima facie burden. However, the PHRC had a legitimate non-discriminatory reason for not hiring Brunson for the Executive Director position: he was not the best candidate following two rounds of interviews. Legitimate, Non-discriminatory Reasoning Neither Brunson’s race, nor his gender, had any part in the decision to hire JoAnn Edwards, a white female for the Executive Director position. Rather, Ms. Edwards was the more qualified candidate and did a better job preparing for and presenting herself at the interviews. During two rounds of interviews, Brunson never even made it to the top two, while other African Americans and males did. SMF ¶ 32, 51. However, JoAnn Edwards was within the top three in the first round and was ranked second in the final round. SMF ¶ 31, 51. In order to be appointed Executive Director, Brunson had to impress a majority of the eleven Commissioners and rank high enough to beat out the other four candidates. He did not. Although he had Commissioners Waters, Woodall and Mondesire apparently vying for him, he failed to achieve scores high enough to rank him above JoAnn Edwards or Michael Hardiman. This was even after all second round candidates were on the same footing with a clean slate at the start of the second round. SMF ¶ 37. Instead, a number of Commissioners, including Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 12 of 25 12 Nassar, Bolstein, Yiengst, and Robinson were unimpressed or had some other style of manager in mind. SMF ¶¶ 40, 43, 50. Unfortunately, the years of experience that Brunson expected would play in his favor actually worked against him. Commissioner Robinson had prior experience practicing before the Commission and was not fond of Brunson’s management style or the way he ran the regional office. SMF ¶ 64. Yiengst and Bolstein were concerned with the way that Brunson’s mentor, Floyd, had left the Commission in a budget deficit and had allowed cases to become backlogged and did not want to continue in such a manner. SMF ¶¶ 44, 41. Commissioner Nassar didn’t believe that Brunson had the leadership that the Commission needed and wanted someone to move the cases faster. SMF ¶ 49. Overall, a group of the Commissioners were looking to take the Commission in a new direction, a direction that was different from the tradition in which Brunson was following as a mentor of Homer Floyd’s. On the other hand, JoAnn Edwards had management level experience at a corporation with over 13,000 employees. SMF ¶ 70. She had been in human resources since 1986, and had handled civil rights matters before the both the PHRC and the EEOC. SMF ¶¶ 69, 71. She satisfied what Bolstein was looking for in a strong management background. SMF ¶ 41. In the first round of interviews she ranked within the top three. SMF ¶ 31. She then arrived for the second interview Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 13 of 25 13 having researched the Commission and written a 30-60-90 day plan that explained all of the ways she believed she could correct the Commission’s deficiencies within those time periods. SMF ¶ 78-79. Brunson was not first after the two rounds of interviews. In fact, he wasn’t even second. Although he had a vast knowledge of the Commission and had served very well there over the last nearly 40 years, he was not the direction in which the Commission wanted to go. After a 40 year time period with Floyd who left the Commission in a major budget deficit, they were looking to go in a new direction, and it wasn’t with Floyd’s mentee, Brunson. The decision to appoint JoAnn Edwards to Executive Director was a majority vote by the entire Commission. SMF at ¶ 55. Brunson was not the candidate who performed the best during the interviews or who met the ideal that the commissioners had for the next Executive Director. For that reason, and nothing to do with either his race, or his gender, he did not receive the position. Plaintiff Has No Evidence of Pretext. Brunson has no evidence of pretext. The plaintiff may show pretext, and defeat a motion for summary judgment, with evidence “that would allow a fact finder reasonably to ‘(1) disbelieve the employer’s articulated legitimate reasons; Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 14 of 25 14 or (2) believe that an invidious discriminatory reason was more likely than not the motivating or determinative cause of the employer’s action.’” Sarullo v. U.S. Postal Service, 352 F.3d 789, 799-800 (3d Cir. 2003)(per curiam), cert. denied, 541 U.S. 1064 (2004) (quoting Jones v. Sch. Dist. of Phila., 198 F.3d 403, 413 (3d Cir. 1999)). The plaintiff may make this showing in either of two ways. First, the plaintiff may show that the defendant’s proffered reasons “are weak, incoherent, implausible, or so inconsistent that ‘a reasonable factfinder could rationally find them unworthy of credence.’” Id. at 800 (quoting Keller v. Orix Credit Alliance, Inc., 2130 F.3d 1101, 1108-09 (3d Cir. 1997)). Second, the plaintiff may provide “evidence that ‘the employer’s articulated reason was not merely wrong, but that it was so plainly wrong that it could not have been the employer’s real reason.” Id. (quoting Jones, 198 F.3d at 413). Brunson has not, and cannot, provide evidence of pretext. Brunson may disagree with the Commissioner’s stated reasons that they did not score him high enough to move on to the second round, or to receive the Executive Director position, but such dispute or disagreement does not create a genuine issue of material fact that would prevent summary judgment. Fitzpatrick v. National Mobile Television, 364 F.Supp.2d 483, 494 n.5 (M.D. Pa. 2005) (citing Billet v. CIGNA Corp., 940 F.2d 812, 826 (3d Cir. 1991), overruled in part on other grounds by, St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993)). Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 15 of 25 15 Brunson would argue that Commissioner Woodall’s and Mondesire’s scores were not counted in the first round to manipulate the scoring against him. However, for a number of reasons, this theory is without merit. First, Woodall did all he could to manipulate the scores in Brunson’s favor by scoring Brunson the highest score and then giving the other candidates the lowest score; certainly Brunson would prefer that they have been used. SMF ¶¶ 28, 48. But it is obvious that Woodall’s scores could not be counted as they were the manipulative scores and would have prevented parity among the scoring of candidates. Further, Mondesire never turned in more than three of the fourteen candidate’s scores thereby making it impossible to determine his scores in tabulation with the other commissioners. SMF ¶ 29. Regardless, Brunson did manage to get a second interview thanks to Commissioners Waters and Mondesire pushing for him. SMF ¶ 33. At that interview, Brunson started over on even footing with the other candidates. SMF ¶ 37. Therefore, any allegation that Brunson was at a disadvantage because Woodall and Mondesire’s scores were not used is mooted by his being given a second interview. ¶ 35. Brunson will further argue that Robinson was racist and manipulated the selection process in favor of a white female. However, Robinson himself is an African American. SMF ¶ 7. He has admittedly used the “n” word, but does so in a non-disparaging context, where the word is used in a manner more akin to Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 16 of 25 16 “brother” or “man” from one African American male to another. SMF ¶ 8, 65. Yet, in order for Robinson to have stacked the deck against Brunson, he would have to have manipulated ten other Commissioners. Once Brunson appeared for his second interview, he was again on even footing with the other four candidates. SMF ¶37. With the scoring method created by Commissioner Bolstein, there was little ability for the Commissioners to affect or manipulate the final outcome with their individual scores. SMF ¶ 47. Further, Robinson, as the chair, had no more weight to his vote than the other ten commissioners. SMF ¶ 36. Therefore any argument that Robinson manipulated the process is baseless. Accordingly, the undisputed facts demonstrate that the Defendant had legitimate reasons for not hiring Brunson, and he cannot establish pretext. Thus, summary judgment in favor of the PHRC on the Title VII claims should be granted. Further, Plaintiff appears to allege that the discrimination was so pervasive and severe as to result in his constructive discharge. (Complaint at ¶ 158, 169, 111). A hostile work environment exists “‘[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.’ ” National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (quoting Harris v. Forklift Sys., 510 U.S. 17, 21 (1993)). A hostile Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 17 of 25 17 work environment “cannot be said to occur on any particular day.” Id. Instead, “[i]t occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” Id. Thus, a “hostile work environment claim is composed of a series of separate acts that collectively constitute one ‘unlawful employment practice.’ ” Id. at 117. Brunson has made no such claim here. Rather, he merely alleges that based upon one discrete act, the PHRC’s failure to hire him for the Executive Director position, because he did not receive the Executive Director position, he was upset and embarrassed and went on FMLA leave prior to JoAnn Edwards appointment and retired the day after her appointment after his doctor would not release him to return to work. SMF ¶ 90- 91; Complaint at ¶ 111-115. This is not severe or pervasive treatment and does not rise to the level of a hostile work environment that would justify a constructive discharge. Therefore, Defendant is entitled to summary judgment on said claims. III. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S TITLE VII RETALIATION CLAIM BECAUSE IT DID NOT RETALIATE AGAINST PLAINTIFF. Within Count IV of his Complaint, Brunson alleges that he was subjected to retaliation in the form of removal of his biography from the PHRC website and being asked to return PHRC files and escorted out of the building after his separation for exercising his rights under Title VII. (Complaint at Count IV). Title VII’s anti-retaliation provision “protects those who participate in certain Title VII Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 18 of 25 18 proceedings (the ‘participation clause’) and those who oppose discrimination made unlawful by Title VII (the ‘opposition clause’).” Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006); 42 U.S.C. §2000e-3(a). To assess Title VII retaliation claims, courts employ the familiar burden-shifting framework of McDonnell Douglas Corp. and its progeny. Moore, 461 F.3d at 342. Under this approach, “the burden of persuasion remains on the plaintiff.” McKinnon v. Gonzales, 642 F.Supp.2d 410, 424-25 (D.N.J. 2009). A. Plaintiff Cannot Establish A Prima Facie Case Whether Plaintiff has established a prima facie case of retaliation is a legal question for this Court. Sarullo v. U.S. Postal Service, 352 F.3d 789, 797 (3d Cir. 2003)(per curiam), cert. denied, 541 U.S. 1064 (2004). This requires proof of all of the following elements: 1) Plaintiff engaged in activity protected by Title VII1; 2) the PHRC took adverse employment action against him; and 3) there was a causal connection between Plaintiff’s protected activity and the adverse employment action. Moore, 461 F.3d at 340-41; Slagle v. County of Clarion, 435 F.3d 262, 265 (3d Cir.), cert. denied, 547 U.S. 1207 (2006). In Nassar the United States Supreme Court clarified the causation rule of the third element and held that a plaintiff 1 Congress has enunciated that protected activity consists of (a) opposing an employment practice prohibited by Title VII, or (b) filing a charge, testifying, assisting or otherwise participating in an investigation, proceeding, or hearing pursuant to Title VII. 42 U.S.C. § 2000e-3(a); See, Fogleman, v. Mercy Hosp., Inc., 283 F.3d 561, 567-70 (3d Cir. 2002). Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 19 of 25 19 “making a retaliation claim under § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.” Nassar, 133 S.Ct. at 2534. If the Plaintiff succeeds in establishing a prima facie case of retaliation, the familiar McDonnell-Douglas burden-shifting framework applies wherein the burden of persuasion remains on the plaintiff. Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). Within his Complaint, Plaintiff predicates his claim on the October 20, 2010 exchange with Robinson in which Brunson took umbrage with Robinson’s use of the “n” word. Brunson then alleges that while he was employed with the PHRC they retaliated against him for this by removing his biographical information from the PHRC website, and after his retirement from the PHRC, they refused him access to his files and called police and security on him while he visited his former office. (Complaint at ¶ 177-79). a. Biography Plaintiff alleges that in response to his protected activity, the Commission removed his biographical data from the website and failed to replace it. Plaintiff fails to prove that the sole, or but-for causation, of the removal of his biography was due to any protected activity. In early 2010, prior to Brunson’s October 20, 2010 interaction with Robinson regarding use of the “n” word, the PHRC website was removed from Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 20 of 25 20 existence and a new website was being constructed. SMF ¶ 80. At that time, Brunson’s biography was removed and a new personal bio for Brunson was given to the press secretary on June 1, 2010. SMF ¶ 82. The press secretary felt that the bio was lengthy and due to Commonwealth standards for web grammatical edits there was extensive work for the press secretary to do. SMF ¶ 85. In June of 2010, the press secretary was asked to cease work on the website and turn her focus to the annual report by Homer Floyd. SMF ¶ 86. Due to a large amount of work, Brunson’s bio, and a number of other items were not completed and remained undone even at the time of his retirement in October 2011. SMF ¶ 87. However, Brunson’s name, and title remained on the new website until his retirement. SMF ¶ 89. There is absolutely no evidence that Robinson was involved in the removal of Brunson’s biography from the website, or for delaying its reconstruction. Rather, Robinson’s discussion with Brunson regarding use of the “n” word did not happen until almost five months later. Therefore, it could not have been the impetus for the removal of the biography and it is not the sole reason that the biography was removed from the website. b. September 12, 2012 Office Visit Brunson further alleges that he was retaliated against because his files were kept from him and he was escorted from the regional office when he was a visitor. Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 21 of 25 21 First, these actions were taken against Brunson in September 2012, nearly a year after he separated from employment with the Commission in October 2011. SMF ¶ 90, 93. Therefore any actions taken against Brunson during the September 2012 visit were not adverse employment actions. Further, insofar as the Court may find that taking PHRC files from Brunson and escorting him from the property qualify as adverse employment actions pursuant to Title VII, which Defendant adamantly opposes, the Defendant’s actions were done for legitimate business reasons. Brunson, a former employee was accessing files within a locked cabinet containing more than just Brunson’s files. SMF ¶ 98, 101. Non-Commonwealth employees are not permitted to rummage through locked Commonwealth files and it was proper of the PHRC employee who witnessed Brunson in the cabinet to report this action to someone in authority. SMF ¶ 102, 104. Out of confidentiality and security concern it was perfectly understandable that staff would approach Brunson, ask that he return the files, and have security escort him from the building. Brunson cannot prove that this incident was not about security issues but rather had to do with his protected activity months or years earlier. Accordingly, in addition to failing to prove an adverse employment action, Brunson has failed to prove causation. Therefore, as the Defendant had legitimate non-discriminatory reasons for the action it took in removing Brunson’s biography from the website, as well as in Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 22 of 25 22 keeping PHRC files from Brunson and escorting him from the premises, and because such actions were not adverse employment actions, the Defendant is entitled to summary judgment on the retaliation claims against it. CONCLUSION For all of the foregoing reasons, summary judgment should be granted in Defendant’s favor and against Plaintiff, Kevin “Kaaba” Brunson. Respectfully submitted, JOSH SHAPIRO Attorney General By: s/M. Abbegael Giunta M. ABBEGAEL GIUNTA Office of Attorney General Senior Deputy Attorney General 15th Floor, Strawberry Square Attorney ID #94059 Harrisburg, PA 17120 Phone: (717) 787-1179 KENNETH L. JOEL Chief Deputy Attorney General mgiunta@attorneygeneral.gov Chief, Civil Litigation Section Date: February 24, 2017 Counsel for Defendant Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 23 of 25 CERTIFICATE OF WORD COUNT I, M. Abbegael Giunta, Senior Deputy Attorney General hereby certify that I have used the word count feature to determine that although this brief is in excess of 15 pages, the body of this brief contains only 4,925 words and is within the word count limit imposed by the Middle District’s Local Rules. s/ M. Abbegael Giunta M. ABBEGAEL GIUNTA Senior Deputy Attorney General Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 24 of 25 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA KEVIN “KAABA” BRUNSON, : No. 1:15-CV-0272 Plaintiff, : : Judge John E. Jones, III v. : : Electronically Filed Document PENNSYLVANIA HUMAN RELATIONS COMMISSION, : : Defendant. : Complaint Filed 2/6/15 CERTIFICATE OF SERVICE I, M. Abbegael Giunta, Senior Deputy Attorney General for the Commonwealth of Pennsylvania, Office of Attorney General, hereby certify that on February 24, 2017, I caused to be served a true and correct copy of the foregoing document titled Defendant’s Brief in Support of the Motion for Summary Judgment to the following: VIA ECF: Charles E. Ganley, Jr., Esquire 1809 East Main Street Waynesboro, PA 17268 ganleylaw@gmail.com Counsel for Plaintiff By: s/M. Abbegael Giunta M. ABBEGAEL GIUNTA Senior Deputy Attorney General Case 1:15-cv-00272-JEJ Document 50 Filed 02/24/17 Page 25 of 25