Tracy Szyper v. American Medical Response Mid ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-3272
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TRACY SZYPER,
Appellant
v.
AMERICAN MEDICAL RESPONSE MID-ATLANTIC, INC.;
AMERICAN MEDICAL RESPONSE, INC.;
LESLIE BROCK, as aider and abettor
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-20-cv-04642)
District Judge: Honorable Chad F. Kenney
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
February 2, 2023
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Before: HARDIMAN, KRAUSE, and MATEY, Circuit Judges.
(Filed: March 22, 2023)
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OPINION*
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*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
MATEY, Circuit Judge.
Tracy Szyper appeals the District Court’s grant of summary judgment denying her
gender discrimination claims against American Medical Response (“AMR”) and Leslie
Brock. Because the District Court correctly found the alleged harassment was not severe
or pervasive enough to create a hostile work environment, we will affirm.
I.
AMR hired Szyper to work as an emergency medical technician. App. 82. About a
month after Szyper started, Leslie Brock, a more senior employee, grabbed Szyper’s
wrist and made two crude and offensive sexual comments.1 App. 213–14. Szyper filed a
complaint and was interviewed by Daniel Brown, AMR’s operations manager in charge
of AMR’s Essington Avenue location, and Sonsaraye Byers, an AMR human resources
generalist. App. 92, 271. Szyper alleged no other incidents of harassment by Brock or
any other AMR employees.
Byers recommended Brock’s termination. App. 169–170. Brown preferred
sanctions short of firing, a conclusion shared by Edward Powers, the AMR regional
director responsible for Brock’s discipline. App. 60–61. AMR issued Brock a “Final
Written Warning” for inappropriate behavior, punishment just short of termination. App.
1
Szyper documented the incident in a report recounting that “Brock had told me to
cover my ears. I looked at him & said jokingly ‘I’m not listening to you anyway.’ He
asked me again to cover my ears. I cupped my hands over my ears but could still hear
what was said. Brock said to [two other employees], ‘that made my dick hard.’ I
uncupped my hands and told him I heard what he said. Brock then proceeded to grab me
by my wrist and say something along the lines of ‘Help me fix my problem.’ I told him to
‘get the fuck off me.’ I proceeded to put my cigarette out and go back inside. This
incident made me feel extremely uncomfortable.” App. 213–14.
2
209. Szyper resigned from AMR as a result, stating she could not continue working with
Brock. App. 277.
Szyper sued AMR under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq. (“Title VII”); the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. §
951, et seq. (“PHRA”); and the Philadelphia Fair Practices Ordinance, Phila. Code § 9-
1100, et seq. (“PFPO”), alleging that the incident created a hostile work environment.
She also sued Brock under the PHRA and PFPO, alleging that he aided and abetted
AMR’s sex discrimination. The District Court granted the Defendants’ motions for
summary judgment on all claims “because the record evidence, even when viewed in the
light most favorable to Plaintiff, does not establish that the alleged harassment was
sufficiently ‘severe or pervasive’ to rise to the level of a Title VII or PHRA violation.”
App. 9. Szyper appeals.2
II.
“Under Title VII, an employer may not ‘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
Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (quoting 42 U.S.C. § 2000e-2(a)(1)).
Title VII prohibits sexual harassment in the workplace that is “sufficiently severe or
2
The District Court had jurisdiction under 28 U.S.C. § 1331 and § 1367 and we
have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s grant of
summary judgment de novo and affirm if the record contains no genuine issue of material
fact. Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). We view the facts in the light
most favorable to the nonmoving party, drawing “reasonable inferences” in her favor.
Scott v. Harris, 550 U.S. 372, 378 (2007).
3
pervasive to alter the conditions of [the plaintiff’s] employment and create an abusive
working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)
(citation and quotation marks omitted). Hostile work environment claims require a
“plaintiff [to] establish that 1) the employee suffered intentional discrimination because
of his/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) (citation
omitted).3
We agree with the District Court that Szyper did not show that Brock’s conduct
was sufficiently “severe or pervasive” as to “alter the conditions of [her] employment and
create an abusive working environment.” Meritor Sav. Bank, FSB, 477 U.S. at 67(citation and quotation marks omitted). When assessing hostility or abusiveness, courts
must look “at all the circumstances,” such as the “frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998) (citation
omitted). “[O]ffhand comments[ ] and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the ‘terms and conditions of employment.’” Id.
at 788.
3
Hostile work environment claims under the PHRA and the PFPO are governed
by the same standards as Title VII claims. See, e.g., Huston, 568 F.3d at 104 n.2.
4
Szyper complains of one instance of offensive conduct and concedes that Brock
never acted inappropriately toward her before or after. App. 214. As the incident was
isolated, the conduct must have been “extremely serious” to create a hostile work
environment. Id. Szyper has not shown that. The circumstances reveal an unquestionably
offensive and distasteful action by a more senior employee. But courts have regularly
held that more severe actions fall short of the severity required by Title VII. See, e.g.,
Bowman v. Shawnee State Univ., 220 F.3d 456, 463–65 (6th Cir. 2000) (supervisor’s
offensive touching not severe enough to create hostile work environment); Adusumilli v.
City of Chicago, 164 F.3d 353, 361–62 (7th Cir. 1998) (supervisor’s four incidents of
improper contact and sexual comments to subordinate did not establish a hostile work
environment).
Considering all material facts and drawing reasonable inferences in Szyper’s
favor, the District Court correctly concluded that “[l]ooking at the totality of the
circumstances in this case, the single incident alleged was not severe enough to be sexual
harassment.” App. 12. So summary judgment to AMR was proper because Szyper’s sex-
based hostile work environment claims fail under Title VII—and thus also under the
PHRA and PFPO. Huston, 568 F.3d at 104 n.2. And because those claims served as
predicate violations for her PHRA and PFPO claims against Brock, summary judgment
was proper for them as well. See 43 Pa. Cons. Stat. § 955(e) (prohibiting the aiding or
abetting of “any act declared by this section to be an unlawful discriminatory practice”).
III.
For these reasons, we will affirm.
5