Bumbarger v. New Enter. Stone & Lime Co.

• Decision Date: 17 March 2016
• Docket Number: CIVIL ACTION NO. 3:14-137
• Citation: 170 F.Supp.3d 801
• Parties: Suzette M. Bumbarger, Plaintiff, v. New Enterprise Stone and Lime Co., Inc., Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

170 F.Supp.3d 801

Suzette M. Bumbarger, Plaintiff,

v.New Enterprise Stone and Lime Co., Inc., Defendant.

CIVIL ACTION NO. 3:14-137

United States District Court, W.D. Pennsylvania.

Signed March 17, 2016

David S. Gaines, Jr., Miller, Kistler & Campbell, State College, PA, for Plaintiff.

David P. Andrews, Elizabeth A. Benjamin, Andrews & Beard Law Offices, Altoona, PA, for Defendant.

MEMORANDUM OPINION

KIM R. GIBSON, UNITED STATES DISTRICT JUDGE

I. Introduction

Pending before the Court is a motion for summary judgment (ECF No. 24) filed by Defendant New Enterprise Stone and Lime Co., Inc., with respect to all claims asserted in Plaintiff Suzette M. Bumbarger's amended complaint filed on July 2, 2014, (ECF No. 2). Plaintiff's amended complaint alleges claims for a hostile work environment, constructive discharge, wrongful failure to promote, and retaliation, under the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”).¹ Also pending before the Court is Defendant's motion to strike portions of Plaintiff's affidavit (ECF No. 35) and Defendant's motion to strike Monica Graham's affidavit (ECF No. 37). These matters have been fully briefed (seeECF Nos. 25, 26, 29, 30, 33, 34, 36, 38, 39, 40) and are ready for disposition. For the reasons that follow, Defendant's motion to strike portions of Plaintiff's affidavit will be GRANTED in part and DENIED in part . Defendant's motion to strike Ms. Graham's affidavit will be DENIED . Defendant's motion for summary judgment will be GRANTED .

II. Jurisdiction and Venue

The Court has jurisdiction over Plaintiff's federal claims pursuant to 28 U.S.C. §§ 1331 and 1343. Venue is proper under 28 U.S.C. § 1391(b).

III. Procedural and Factual Background

Defendant is a building materials supplier and highway contractor that operates quarries and blacktop and concrete-mix plans in Pennsylvania and performs highway construction and roadway paving projects on a seasonal basis. (ECF Nos. 25 ¶ 1; 30 ¶ 1.) Plaintiff was hired as a part-time flagger for Defendant on a seasonal basis in May 2005 and was hired as a full-time laborer in August 2009. (ECF Nos. 25 ¶ 2; 30 ¶ 2.) When Plaintiff transferred to her position as a full-time laborer in August 2009, she was assigned to the roadway construction crew for which Gregory Stamm, Defendant's former employee, served as a crew superintendent. (ECF Nos. 25 ¶ 3; 30 ¶ 3; 33 ¶ 3.) As a laborer, Plaintiff diverted traffic during roadway paving. (ECF Nos. 30 ¶ 351; 33 ¶ 351.) Plaintiff's base rate of pay was $18.00 per hour, and on prevailing wage jobs, her rate of pay was approximately $22.00 per hour. (ECF Nos. 25 ¶ 5; 30 ¶ 5.) Plaintiff continued to be employed by Defendant on a full-time, seasonal basis until she resigned from her position on June 17, 2014. (ECF Nos. 25 ¶ 6; 30 ¶ 6.)

In her capacity as a traffic-control person, Plaintiff primarily worked with Mr. Stamm's crew but also assisted other crews at times. (ECF Nos. 25 ¶ 65; 30 ¶ 65.) Mr. Stamm yelled when he was angry, and he used profanity and other foul language while on the job. (ECF Nos. 25 ¶ 111; 30 ¶¶ 111, 352; 33 ¶¶ 111, 352.) Plaintiff alleges, in part, that Mr. Stamm would use words such as “b--ch” and “c--t” directed at her, that he once pulled his pants down and mooned her in 2010 or 2011, that he yelled at her to “get in the f--ing truck,” and that, after a paint can was knocked over, said that “this is where the f--ing paint goes and if you do this again[,] you will be the first f--ing [flagger] that [Defendant] had.” (ECF Nos. 25 ¶ 66; 30 ¶ 66; 33 ¶ 66.)

In 2011, Plaintiff and two of her co-workers shared their concerns regarding Mr. Stamm, including the mooning incident, with Billie Dick and Bob Flood, Sr., two of Defendant's employees. (SeeECF Nos. 25 ¶¶ 68, 70-72; 30 ¶¶ 68, 70-72, 375; 33 ¶ 375.) In response, Mr. Flood advised Plaintiff to sign a Check of Facilities form to indicate that she had a complaint. (ECF Nos. 25 ¶ 72; 30 ¶ 72.) Plaintiff contends that she told Mr. Flood that she would not sign the form because Mr. Stamm was the individual who had given her the form, and she feared retaliation. (ECF Nos. 25 ¶ 73; 30 ¶ 73.) Plaintiff alleges, in part, that a few days later, Mr. Stamm screamed profanities at her, told her to “keep her f--ing mouth shut,” and told her that she could not go to the office because “that's how people lose their job.” (SeeECF Nos. 25 ¶ 75; 30 ¶¶ 75, 378-379; 33 ¶¶ 75, 378-379.) During the 2012 season, Mr. Stamm yelled at Plaintiff to “[t]ake off your f--ing glasses so you can see!” (ECF Nos. 30 ¶ 368; 33 ¶ 368.)

On May 21, 2013, Employee Relations Manager Corey Reffner received a complaint from William Hutchinson, in which he complained that he was not called back to work, when Mr. Stamm had called other employees back to work, and stated that Mr. Stamm had previously yelled at him and said, “If you want to play games, I will play games.” (ECF Nos. 25 ¶¶ 92, 330; 30 ¶¶ 92, 330.) Mr. Stamm also called Mr. Hutchinson names, such as “r--d.” (ECF Nos. 25 ¶ 113; 30 ¶ 113.) Mr. Reffner designated the matter as an Avenues of Appeal complaint for which further investigation had been initiated and scheduled a meeting with Mr. Stamm, Jim Miller, and Rick Emerick to address the allegations. (ECF Nos. 25 ¶ 331; 30 ¶ 331.)

On May 23, 2013, Plaintiff met with Mr. Mills to discuss Mr. Stamm. (ECF Nos. 30 ¶ 385; 33 ¶ 385.) At the end of the conversation, Mr. Mills stated that he would contact Mr. Stamm, discuss the matters, and get back in touch with Plaintiff. (ECF Nos. 30 ¶ 386; 33 ¶ 386.) Also on May 23, 2013, Mr. Reffner, Mr. Emerick, and Mr. Miller met with Mr. Stamm to investigate the assignment of work for crews that had been called for the season and to address the fears of retaliation expressed by two employees who were reporting complaints. (ECF Nos. 25 ¶ 332; 30 ¶ 332.) During the meeting, Mr. Reffner, Mr. Emerick, and Mr. Miller addressed retaliation with Mr. Stamm, advised him of the need for fair and equal treatment of all of Defendant's employees, and stated that retaliation is prohibited. (ECF Nos. 25 ¶ 333; 30 ¶ 333.) The investigation into the assignment and work hours in 2013 did not substantiate the complaints that were alleged. (ECF Nos. 25 ¶ 334; 30 ¶ 334.) Mr. Mills later left Plaintiff a voicemail and stated that he had spoken with Mr. Stamm about the matter. (SeeECF Nos. 25 ¶¶ 81-82; 30 ¶¶ 81-82; 33 ¶¶ 81-82.) In his voicemail, Mr. Mills stated that Mr. Stamm did not realize that there was a problem and that he felt things would be okay going forward, “but you know how he is.” (SeeECF Nos. 25 ¶¶ 83-84; 30 ¶¶ 83-84, 387; 33 ¶¶ 83-84, 387.)

Thereafter, Mr. Stamm asked Plaintiff if she wanted to go to another crew, and she stated that that would be fine. (SeeECF Nos. 25 ¶ 76; 30 ¶¶ 76, 388; 33 ¶¶ 76, 388.) Plaintiff alleges that she and Mr. Stamm then got into a truck together, and he squeezed her shoulder, asking if they were okay. (SeeECF Nos. 25 ¶ 77; 30 ¶¶ 77, 388; 33 ¶¶ 77, 388.) According to Plaintiff, Mr. Stamm's behavior calmed down after this incident but worsened after one or two weeks. (SeeECF Nos. 25 ¶ 78; 30 ¶ 78; 33 ¶ 78.) In June or July 2013, Plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), complaining of a hostile work environment, disparate treatment, and a failure to promote. (ECF Nos. 30 ¶ 485; 33 ¶ 485.) Plaintiff later amended her complaint to add claims for wrongful termination and retaliation. (ECF Nos. 30 ¶ 486; 33 ¶ 486.)

On June 25, 2013, Plaintiff again contacted Mr. Mills regarding Mr. Stamm. (SeeECF No. 25 ¶ 87; 30 ¶ 87; 33 ¶ 87.) Mr. Mills mentioned the option of moving Plaintiff to another crew run by Carl Stamm, which was operating in Bigler, Pennsylvania. (ECF Nos. 25 ¶ 88; 30 ¶ 88.) Mr. Mills told Plaintiff to remain in her truck until he arrived at the job site. (ECF Nos. 30 ¶ 391; 33 ¶ 391.) After an inordinate amount of time passed, Plaintiff called Mr. Mills again, at which point he told Plaintiff to return to her home and to take some time off from work. (ECF No. 30 ¶ 392; 33 ¶ 392.) Plaintiff also spoke with Mr. Miller about her complaints regarding Mr. Stamm; Mr. Miller stated that he would speak with Mr. Stamm and get back to her that day. (ECF Nos. 25 ¶ 91; 30 ¶ 91.) After speaking with Mr. Miller, Plaintiff contacted Mr. Reffner and left him a message in which she stated that she would like to speak with him. (ECF Nos. 25 ¶ 92; 30 ¶ 92.) By the end of the day on June 25, 2013, Plaintiff had spoken with Mr. Mills, Ms. Dick, Mr. Miller, and Mr. Reffner. (SeeECF Nos. 25 ¶ 93; 30 ¶ 93.)

On June 26, 2013, Mr. Reffner returned Plaintiff's call, spoke with her about Mr. Stamm, and scheduled a meeting with Plaintiff for July 1, 2013. (SeeECF Nos. 25 ¶ 94; 30 ¶ 94; 33 ¶ 94.) During the call, Plaintiff stated that she did not want to work with Carl Stamm's crew because she believed that he answered to Mr. Stamm. (ECF Nos. 30 ¶ 411; 33 ¶ 411.) Plaintiff and Mr. Reffner agreed that, in the meantime, Plaintiff should not report to work. (ECF Nos. 30 ¶ 397; 33 ¶ 397.) On July 1, 2013, Plaintiff met with Mr. Reffner and Mr. Miller to further discuss her complaints about Mr. Stamm and then completed, at least in part, an Avenues of Appeal Initial Review Form. (SeeECF Nos. 25 ¶ 96; 30 ¶ 96; 33 ¶ 96.)

After the meeting, Mr. Reffner spoke with Denise Speck, Tom Crain, Jr., Cheryl Davis, Brian Eyerly, Tom Crain, Sr., and Andrea Quick regarding the incidents identified by Plaintiff. (ECF Nos. 25 ¶ 143; 30 ¶ 143.) Mr. Reffner did not speak with Mr. Hutchinson or Carl Stamm. (ECF Nos. 30 ¶¶ 406-407; 33 ¶¶ 406-407.) Ms. Speck contacted Mr. Reffner and stated that the only person she heard swearing during the week of June 25, 2013, was Plaintiff, who told Ms. Speck, “You tell [Mr. Stamm] the f--ing truck is at the quarry and he can take the cell phone and shove it up his a--.” (ECF Nos. 25 ¶ 146; 30 ¶ 146.) During his investigation, Mr. Reffner learned that Mr....