Andreoli v. Gates

• Decision Date: 06 April 2007
• Docket Number: No. 05-5417.,05-5417.
• Citation: 482 F.3d 641
• Parties: Janice ANDREOLI, Appellant v. *Robert M. GATES, Secretary of Defense; Keith Lippert, Vice Admiral, SC, USN, Director of the Defense Logistics Agency Office of the Director DLA-D Headquarters, Defense Logistics Agency *(Amended pursuant to F.R.A.P. 43(c)).
• Court: U.S. Court of Appeals — Third Circuit

482 F.3d 641

Janice ANDREOLI, Appellant v. *Robert M. GATES, Secretary of Defense; Keith Lippert, Vice Admiral, SC, USN, Director of the Defense Logistics Agency Office of the Director DLA-D Headquarters, Defense Logistics Agency

*(Amended pursuant to F.R.A.P. 43(c)).

No. 05-5417.

United States Court of Appeals, Third Circuit.

Argued January 8, 2007.

Filed April 6, 2007.

Mary Ann Hagan, [Argued], Philadelphia, PA, Counsel for Appellant.

Kathleen Meriwether, [Argued], Office of U.S. Attorney, Philadelphia, PA, Counsel for Appellees.

Before SLOVITER and RENDELL, Circuit Judges, and IRENAS^**, District Judge.

RENDELL, Circuit Judge.

Janice Andreoli appeals the order of the District Court granting summary judgment in favor of her employer on her Title VII claims for hostile work environment and retaliation, and on her Rehabilitation Act claim for failure to provide reasonable accommodation. Andreoli proffered evidence of sexually harassing behavior toward her by her coworker, Larry DeLutiis, while she was employed by the Department of Defense at the Defense Supply Center in Philadelphia ("DSCP"). The District Court held that, even if she proved the other elements necessary for a hostile work environment claim, her employer could not be held liable because management took prompt and adequate remedial action upon learning of DeLutiis' conduct, thus availing itself of the defense approved by the Supreme Court in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). We conclude that in doing so, the District Court resolved issues of disputed fact that should have been submitted to a jury.

Andreoli also contended that her employer retaliated against her after she engaged in employment activities protected by Title VII, including speaking with the Equal Employment Opportunity ("EEO") office at the DSCP. Andreoli further asserted that the continuing abuse she endured at her workplace rendered her disabled and that the DSCP failed to provide her with a reasonable accommodation. We conclude that the District Court properly granted summary judgment in favor of her employer on both of these claims because Andreoli did not proffer sufficient evidence to support a finding that her employer's alleged adverse actions were causally connected to her protected employment activity under Title VII, or that she is disabled within the meaning of the Rehabilitation Act. We will therefore affirm in part, reverse in part, and remand for further proceedings on Andreoli's hostile work environment claim.

I.

The District Court granted summary judgment in favor of defendants¹ on Andreoli's hostile work environment claim based on the conclusion that, under the applicable law, Andreoli's employer could not be held liable for DeLutiis' conduct. Although this ruling was essentially fact-based, we think it helpful to discuss the elements of a hostile work environment claim before delving into the lengthy factual underpinnings of this case.

In order to state a claim under Title VII for discrimination resulting from a hostile work environment, an employee must show that "(1) the employee suffered intentional discrimination because of [her] sex, (2) the discrimination was pervasive and regular, (3) the discrimination detrimentally affected the [employee], (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position, and (5) the existence of respondeat superior liability." Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir.2001). Here the District Court focused on the last factor, and only that factor, and we will do so as well.

An employer will be liable for the harassing conduct of the alleged victim's coworker if the employer was "negligent or reckless in failing to train, discipline, fire or take remedial action upon notice of harassment." Bonenberger v. Plymouth Twp., 132 F.3d 20, 26 (3d Cir.1997) (citing Bouton v. BMW of N. Am., Inc., 29 F.3d 103, 106 (3d Cir.1994)). An employer is negligent if it "knew or should have known about the harassment, but failed to take prompt and adequate remedial action." Jensen v. Potter, 435 F.3d 444, 453 (3d Cir.2006) (internal quotations omitted). Even if the remedial action does not stop the alleged harassment,² it is "adequate" if it is "reasonably calculated" to end the harassment. Id. (quoting Knabe v. Boury Corp., 114 F.3d 407, 412-13 (3d Cir.1997)).

In most cases, the focus will be on the timing and nature of the employer's response. We have found an employer's actions to be adequate, as a matter of law, where management undertook an investigation of the employee's complaint within a day after being notified of the harassment, spoke to the alleged harasser about the allegations and the company's sexual harassment policy, and warned the harasser that the company does not tolerate any sexual comments or actions. See Knabe v. Boury Corp., 114 F.3d 407 (3d Cir.1997). On the other hand, we have denied summary judgment in favor of an employer when there was a nineteen-month delay between when the employer was notified of the complaint and when the employer took remedial action. Jensen, 435 F.3d at 453. We have also denied summary judgment in favor of an employer when there was evidence that the employee's supervisor knew about the harassment and did nothing for three months, despite other evidence that the alleged harasser's supervisor later took immediate action upon learning of the harassment. Bonenberger, 132 F.3d at 26. We reasoned that a jury should decide whether the employer's remedial action was prompt and adequate.

Here, the District Court decided that the remedial actions taken by Andreoli's employer were prompt and adequate, as a matter of law. We will now review the factual background of Andreoli's claims in some detail in order to explain more fully our grounds for concluding that there is a triable issue of material fact regarding the adequacy and promptness of Andreoli's employer's remedial actions. We will then discuss our rationale for affirming as to the other two claims.

II.

Most of the underlying facts are undisputed. Where there is a dispute, we view the facts in the light most favorable to Andreoli. Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 267 (3d Cir. 2001).

Andreoli worked as a federal employee at the DSCP from 1988 until 2000, when she stopped coming to work because she was suffering from Post-Traumatic Stress Disorder and depression in reaction to the behavior of her coworker, Larry DeLutiis. It all started in 1989, when DeLutiis began making offensive, off-color comments to Andreoli about women from work or women that he had seen outside of work. His comments and actions were, at best, objectionable and, at worst, lewd and harassing.³

When this conduct first began, Andreoli told DeLutiis repeatedly that his comments were unwelcome and also complained to her supervisors at the DSCP. There is no evidence that the supervisors to whom Andreoli complained, including her assistant shift supervisor and her shift supervisor, Theodore DeSanto, took any action to prevent or remedy the ongoing harassment. In response to Andreoli's complaints, the first line supervisor on her shift told her not to bother him "with this shit." App. at 597. Nothing was done after Andreoli, visibly shaking and crying, told DeSanto that DeLutiis had pushed his hand between her legs and refused to remove it. DeSanto ignored Andreoli's distress, and joined DeLutiis in laughing at the suggestion that Andreoli had pushed DeLutiis' hand between her legs and told him to "feel her or finger her." App. at 597. Andreoli complained and made specific requests for a shift change, but the supervisor in charge of all three shifts of workers at the DSCP failed to act, and tried to avoid discussing the matter with Andreoli.

There was one exception to this pattern of supervisory inaction: Division Chief Robert Olewnik. After failing to elicit any response from the four supervisors to whom she complained, Andreoli sought out Olewnik and told him of the escalating, pervasive, hostile, sexually harassing situation with DeLutiis. Olewnik was not surprised. He assured Andreoli that he would take care of it. App. at 600. However, despite these assurances, nothing happened, and Andreoli sought his help a few more times. Several months after Andreoli first complained, Olewnik transferred DeLutiis to a different shift. He also refused to promote DeLutiis to a supervisory position at the DSCP, in part because Andreoli had told him that DeLutiis had put his "hand under her dress." App. at 565. DeLutiis retaliated against Olewnik by filing a reverse discrimination charge against the DSCP. Andreoli provided an affidavit describing DeLutiis' harassment to Olewnik for use in defending against DeLutiis' discrimination complaint, which DeLutiis eventually withdrew. Olewnik left the DSCP in July 1995.

DeLutiis did not change his ways after he was transferred to a different shift. In 1996, DeLutiis again began making derogatory comments about women in Andreoli's presence, referring to his nickname and making remarks about how women should not be in positions to make any decisions. DeLutiis would linger around the office after his shift was over and Andreoli had begun work on her shift, hanging around the sign-in sheet or sitting in the print room or the break room. DeLutiis also commented that he was going to switch to the second shift, Andreoli's shift.

Andreoli spoke to her immediate supervisor, Robert Crawford, about what she had been through with DeLutiis. Crawford replied, "Well, Janice, that was a long time ago. You need to get over that." App. at 607. She then spoke to Provision Chief Rosemarie Badame. Andreoli, visibly shaken up and crying, told Badame that DeLutiis was trying to get on her shift, that he stalked her and sexually harassed her, and that the harassment was ongoing. App. at 607. Badame replied that Andreoli...