UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ARTHUR WEILER, JR., :

:

 Plaintiff : No. 4:CV-05-2433

:

vs. : (Complaint filed 11/22/05)

:

R & T MECHANICAL, INC., : (Judge Muir)

:

Defendant : 

ORDER

October 25, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On November 22, 2005, Plaintiff Arthur Weiler, Jr.,

initiated this action by filing a one-count complaint. At all

relevant times Weiler had been employed by Defendant R & T

Mechanical, Inc. In his complaint Weiler alleges that his

employment with R & T Mechanical, Inc.,

was terminated as a result of his opposition to sexual

harassment in the work place and his assistance to a female

co-worker in pursuing her complaint of sexual harassment. 

Therefore, his termination was in violation of both the

Federal Civil Rights Act and the Pennsylvania Human

Relations Act.

(Complaint, p. 4, ¶29)

On September 8, 2006, R & T Mechanical, Inc., filed a motion

for summary judgment. A supporting brief, statement of

undisputed material facts, and exhibits were filed with the

motion. Weiler filed his opposing brief, counter-statement of

facts, and exhibits on September 26, 2006. Although the brief

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was filed one day late, we will accept it as having been timely

filed. R & T Mechanical, Inc., filed its reply brief on October

11, 2006, thereby ripening its summary judgment motion for

disposition.

Summary judgment is appropriate only when there is no

genuine issue of material fact which is unresolved and the moving

party is entitled to a judgment as a matter of law. Fed. R. Civ.

P. 56©. Summary judgment should not be granted when there is a

disagreement about the material facts or the proper inferences

which a fact-finder could draw from them. Peterson v. Lehigh

Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). “When a

motion for summary judgment is made and supported as provided in

...[Rule 56], an adverse party may not rest upon mere allegations

or denials of the adverse party’s pleading....” Fed. R. Civ. P.

56(e).

Initially, the moving party has a burden of demonstrating

the absence of a genuine issue of material fact. Celotex

Corporation v. Catrett, 477 U.S. 317, 323 (1986). This may be

met by the moving party pointing out to the court that there is

an absence of evidence to support an essential element as to

which the non-moving party will bear the burden of proof at

trial. Id. at 325. 

Rule 56 provides that, where such a motion is made and

properly supported, the adverse party must show by affidavits,

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pleadings, depositions, answers to interrogatories, and

admissions on file that there is a genuine issue for trial. Fed.

R. Civ. P. 56(e). The United States Supreme Court has commented

that this requirement is tantamount to the non-moving party

making a sufficient showing as to the essential elements of its

case that a reasonable jury could find in its favor. Celotex

Corporation vs. Catrett, 477 U.S. 317, 322-23 (1986).

Because summary judgment is a severe remedy, the Court

should resolve any doubt about the existence of genuine issues of

fact against the moving party. Ness vs. Marshall, 660 F.2d 517,

519 (3d Cir. 1981).

The United States Supreme Court has stated that in motions

for summary judgment a material fact is one which might affect

the outcome of the suit under relevant substantive law. See

Anderson vs. Liberty Lobby, Inc., 477 U.S. 242 (1986). The

Supreme Court also stated in Anderson that a dispute about a

material fact is “genuine” if “the evidence is such that a

reasonable jury could return a verdict for the non-moving party.”

Id. at 248. “Where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is

no ‘genuine issue for trial.’” Matsushita Electric Industrial

Company, Ltd. vs. Zenith Radio Corporation, 475 U.S. 574, 587

(1986).

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The Court of Appeals for the Third Circuit has commented

that “this standard is applied with ‘added rigor in employment

discrimination cases, where intent and credibility are crucial

issues.’” Hankins vs. City of Philadelphia, 189 F.3d 353, 363 (3d

Cir. 1999)(quoting Robinson vs. Vs. PPG Indus., Inc., 23 F.3d

1159, 1162 (7th Cir. 1994)). We are also mindful of the comment

of the Court of Appeals for the Third Circuit that

[a] play cannot be understood on the basis of some of its

scenes but only on its entire performance, and similarly, a

discrimination analysis must concentrate not on individual

incidents, but on the overall scenario.

Abramson v. William Patterson College of New Jersey, No. 00-5026,

2001 WL 881255, *9 (3d Cir. August 3, 2001)(quoting Andrews v.

City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir. 1990). We

will apply those principles to the pending summary judgment

motion.

In considering the motion’s merits, we rely upon the

following undisputed facts to decide whether any reasonable

finder of fact, based upon the evidence of record, could find in

favor of Weiler on his retaliation claim.

 R & T Mechanical, Inc., was formed and began operations in

1987. The corporation is an industrial contractor which

specializes in pipe-fitting, millwright work, rigging, metal

fabrication, crane rentals, and industrial concrete. Timothy

Baughman is the owner and president of R & T Mechanical, Inc. 

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In 1988 or 1989, R & T Mechanical, Inc., hired Robert

Savidge as an Installation Foreman. Savidge and Baughman were

personal friends. Savidge eventually became general manager of R

& T Mechanical, Inc.’s, north division which was headquartered in

Tioga Junction, Pennsylvania. Savidge’s duties included the

hiring and firing of R & T Mechanical, Inc.’s, north division

employees. Savidge’s only supervisor at R & T Mechanical, Inc.,

was Baughman.

On February 5, 1997, Savidge hired Weiler as an employee at

R & T Mechanical, Inc.’s, north division. In 2001 Weiler became

a General Supervisor at the corporation’s office in

Lawrenceville, Pennsylvania. Savidge was Weiler’s immediate

supervisor. In Savidge’s absence Weiler was in charge. Two of 

R & T Mechanical, Inc.’s, female employees in that office were

Kimberly Lauterborn and Judy Hitman. Lauterborn’s husband was

also employed by R & T Mechanical, Inc., at that location.

In 2002 Lauterborn informed Weiler that she was being

sexually harassed by Savidge. Weiler advised Lauterborn to

inform Baughman of Savidge’s inappropriate conduct. Lauterborn

did not do that, and she asked Weiler not to inform Baughman of

Savidge’s conduct, because she was afraid that 1) Baughman would

side with Savidge, and 2) both Lauterborn and her husband would

lose their jobs as a result of the allegations. 

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Savidge’s inappropriate behavior continued. In the summer

of 2003, Weiler and Lauterborn confronted Savidge about the

problem. Savidge admitted that he behaved inappropriately. 

Despite his statement that he would no longer harass Lauterborn

Savidge continued to make inappropriate statements to Lauterborn. 

One of Weiler’s job responsibilities at R & T Mechanical,

Inc., was the preparation of bids for jobs. In January of 2004,

Weiler prepared a bid for a job in Tyler, Texas, which was

accepted. R & T Mechanical, Inc., lost $10,000 on the Tyler,

Texas, job. Shortly after that job Weiler met with Baughman to

discuss the manner in which bids should be prepared. In February

of 2004, Weiler prepared a bid for a job in Alabama, which was

accepted.

In or around the spring of 2004, a female R & T Mechanical,

Inc., employee, Judy Hitman, fabricated and displayed at work a

sexually suggestive photograph of Weiler. The photograph implied

that Weiler was gay. Weiler and his wife were offended by the

photograph.

In retaliation Weiler’s wife fabricated a photograph of

Hitman coming out from under Savidge’s desk which Weiler brought

into work and showed to Hitman. Weiler admitted that there was a

sexual connotation to the photograph his wife prepared, and he

saw nothing wrong with presenting it to Hitman even though he was

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her supervisor. Weiler believed that as a supervisor it was

appropriate for him to threaten Hitman. 

In addition to Savidge’s harassment of Lauterborn, Weiler

knew that Savidge was offering Hitman money if she would have sex

with him. Weiler and Savidge were also aware that another R & T

Mechanical, Inc., employee, Larry Kroeck, was engaging in

inappropriate behavior. Kroeck would allow female employees of

another company known as ACP to have an R & T Mechanical, Inc.,

t-shirt only if the female would have sex with Kroeck. When

Weiler wanted to give a shirt to a female ACP employee, Savidge

would not let him do so.

The Alabama job began in May of 2004. Weiler was initially

in charge of that job as the sole supervisor at the job site in

Alabama. After he injured his arm, Weiler’s job responsibilities

at the Alabama site changed. Subsequent to those events, Weiler

shared responsibilities for the job with another R & T

Mechanical, Inc., employee, Greg Nagy. At that point Weiler

assumed he and Nagy had equal authority on the Alabama job site.

Nagy supervised the day shift and Weiler supervised the

night shift at the Alabama job. There was little communication

and no interaction between the day and night crews. Weiler’s

work crew consisted of Lauterborn, Weiler’s son, and one other

worker who was hired in Alabama strictly for that job. The

Alabama job was not completed in one trip. R & T Mechanical,

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Inc.’s, employees made at least two trips to Alabama to complete

the job.

Weiler and Hitman had previously discussed with Baughman the

incident concerning the fabricated photographs depicting Weiler

and Hitman. Baughman intended to address the situation with

Weiler during one of Baughman’s scheduled trips to the Alabama

job site in June of 2004.

Weiler first reported Savidge’s behavior with respect to

Lauterborn to a member of R & T Mechanical, Inc.’s, management in

June of 2004. Weiler reported that conduct to Baughman when

Lauterborn and Weiler were in Pennsylvania and on a break from

the Alabama job. Upon receiving the report, Baughman seemed

displeased with Weiler. On the same day that Weiler raised the

matter regarding Savidge’s harassment of Lauterborn, Baughman met

with Lauterborn and Weiler. At that point Lauterborn presented

all of her allegations concerning Savidge to Baughman. Baughman

then met with Savidge. When Savidge admitted that Lauterborn’s

allegations were true, Baughman immediately terminated Savidge’s

employment based on the complaints of Lauterborn and Hitman. 

Weiler was not demoted because he reported Savidge’s sexual

harassment to Baughman. Weiler’s job title, salary, and duties

did not change as a result of that report.

Prior to the termination of Savidge’s employment, Weiler,

Baughman, and Savidge discussed what would happen after Savidge

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retired. Those discussions led Weiler to believe that he would

replace Savidge as the general manager. However, Weiler did not

expect to be appointed to that position if he performed poorly.

Baughman issued to Weiler a written warning in a letter

dated June 17, 2004, for the manner in which Weiler handled the

alleged sexual harassment of Hitman and Lauterborn. Weiler had

not reported Savidge’s inappropriate behavior earlier because he

though it was the victim’s responsibility to report such

behavior. After Weiler received Baughman’s letter, Weiler

understood that he was expected to report sexual harassment

problems to Baughman.

Approximately three weeks after Weiler received Baughman’s

June 17, 2004, letter, Weiler telephoned Baughman to inform him

of the sexually inappropriate behavior of Larry Kroeck at ACP. 

During that conversation Baughman became irate, asked Weiler if

Weiler wanted everyone fired, and he cut off Weiler.

On Wednesday, July 14, 2004, Lauterborn and Weiler were

working at the Alabama job site. On that date Lauterborn told

Weiler that she needed to return to Pennsylvania because she had

to take care of her minor son who she stated was home alone.

Lauterborn telephoned Baughman and requested permission to

return to Pennsylvania. Baughman informed Lauterborn that she

could return to Pennsylvania if both Weiler and Nagy allowed her

to do so, but that there might not be work for her in

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Pennsylvania. Although Weiler was aware of Baughman’s

instructions to Lauterborn, he told Lauterborn not to raise the

subject with Nagy because Weiler knew that Nagy had been making

negative comments about Lauterborn. Some of Nagy’s comments had

sexual connotations relating to Lauterborn.

Weiler agreed to let Lauterborn return to Pennsylvania. 

When he did so he was not aware of any sexual harassment at the

Alabama job site directed towards Lauterborn. 

Weiler sent Lauterborn home on Friday, July 16, 2004. No 

R & T Mechanical, Inc., employee subjected Lauterborn to sexual

harassment or gender discrimination when she worked on the

Alabama job.

On the morning of Saturday, July 17, 2004, Weiler went to

the job site for approximately two hours. During that period he

talked to Nagy and they got into an argument about Lauterborn. 

Later that day when Weiler was preparing to return to the job

site he began experiencing chest pains and anxiety. Weiler went

to the hospital. Weiler received a morphine drip and stayed at

the hospital for approximately 5 hours. Medical personnel at the

hospital in Alabama instructed him to seek medical attention from

his physician in Pennsylvania within 2 days. However, when he

was discharged from the hospital, Weiler intended to return to

work the following day.

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Although Baughman had previously given his cell phone number

to Weiler, Weiler did not have the number with him in Alabama. 

While he was in Alabama, Weiler had no way to contact Baughman

during a weekend. 

On the morning of Sunday, July 18, 2004, Weiler thought of

his argument with Nagy on the preceding day which caused him to

experience difficulty breathing. At that time Weiler decided to

return to Pennsylvania to seek medical advice. Weiler met with

Nagy on the job site and Weiler informed Nagy that Weiler would

be returning to Pennsylvania because of his medical condition. 

Weiler also told Nagy that Weiler would contact Baughman by

telephone on Monday morning.

Before he left the job site on Sunday, July 18, 2004, Weiler

also met with another worker on the site, Ron Ramer. Weiler told

Ramer that Weiler was leaving the job because “the project was

causing him too much stress and that he was unable to get a

handle on the job.” (Weiler Deposition Exhibit 6)

Before he left Alabama, Weiler unilaterally dismantled his

crew of night shift workers. Lauterborn had already been sent

home, Weiler’s son was returning to Pennsylvania with Weiler, and

Weiler fired the employee who had been hired in Alabama. Weiler

did not inform Baughman of those actions before taking them.

On Monday, July 19, 2004, Weiler called Baughman to inform

Baughman that he had left the job site in Alabama. During that

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conversation Baughman immediately terminated Weiler’s employment

for leaving the job site.

R & T Mechanical, Inc.’s, employee handbook contains a rule

prohibiting employees from being absent more than one day without

authorization. The handbook provides that violating the rule was

grounds for immediate discharge.

R & T Mechanical, Inc., ultimately lost approximately

$101,000 on the Alabama job. Weiler admits that he was partially

responsible for that loss. Weiler asserts that other employees

of the corporation, including those who reviewed the bid

documents which he prepared, are also responsible.

Weiler received a termination letter dated July 19, 2004, in

which Baughman stated that Weiler’s employment was terminated for

extreme and unacceptable losses, lack of communications and

coordination, and sexual misconduct.

R & T Mechanical, Inc., did not hire anyone to replace

Weiler. Instead, Baughman assumed Weiler’s job duties.

We will apply those facts to the pending summary judgment

motion. As noted above, Weiler’s sole claim is that R & T

Mechanical, Inc., unlawfully retaliated against him because he

opposed sexual harassment in the work place and assisted Kimberly

Lauterborn in asserting her allegations of sexual harassment.

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The Court of Appeals for the Third Circuit has stated the

following in the context of considering whether summary judgment

should be granted on such a claim:

Under our precedent, to advance a prima facie case of

retaliation, a plaintiff must show that: (1) the employee

engaged in a protected employee activity; (2) the employer

took an adverse employment action after or contemporaneous

with the employee's protected activity; and (3) a causal

link exists between the employee's protected activity and

the employer's adverse action. See, e.g., Kachmar v. Sungard

Data Systems, Inc., 109 F.3d 173, 177 (3d Cir.1997); Jalil

v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.1989); see also

Krouse v. American Sterilizer Company, 126 F.3d 494, 500 (3d

Cir.1997)(describing the third requirement as a “causal

connection”).

Farrell v. Planters Lifesavers, Co., 206 F.3d 271, 279 (3d Cir.

2000). 

R & T Mechanical, Inc., initially contends that Weiler has

failed to establish a causal link between his reports of sexual

harassment and any adverse action by R & T Mechanical, Inc., such

as the termination of his employment. The adverse actions

alleged by Weiler include other alleged repercussions from

reporting instances of sexual harassment, such as the failure to

promote Weiler after Savidge’s employment had been terminated. 

In considering this argument we pause to note specifically what

constitutes an “adverse employment action.” The Court of Appeals

for the Third Circuit has held that 

[r]etaliatory conduct other than discharge or refusal to

rehire is thus proscribed by Title VII only if it alters the

employee's "compensation, terms, conditions, or privileges

of employment," deprives him or her of "employment

Case 4:05-cv-02433-MM Document 24 Filed 10/25/06 Page 13 of 18
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opportunities," or "adversely affect[s] his [or her] status

as an employee."

Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.

1997).

We initially consider all of the alleged actions taken by 

R & T Mechanical, Inc., before the termination of Weiler’s

employment. Based on the allegations in the complaint, the

relevant circumstances relate to the alleged changes in Weiler’s

role at the corporation after Savidge’s employment was

terminated.

Weiler does not clearly identify the changes in his

employment which constitute “adverse employment actions.” 

Nonetheless, it is undisputed that Weiler’s job title,

responsibilities, and pay remained the same at all relevant times

(including after Savidge left the corporation). The informal

discussions relating to Weiler’s ascendence into Savidge’s

position never developed beyond general expectations, and Weiler

concedes that such a promotion was always subject to his

continued satisfactory job performance. Specifically with

respect to the change in Weiler’s status as the lone supervisor

at the Alabama job site, at one point in his deposition he

concedes that his arm injury was the reason for the decision that

responsibilities at the site would be shared with Nagy.

The only evidence of record Weiler cites in support of his

contention that a sufficient causal link exists relates to the

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various protests made by Baughman when Weiler brought an instance

of sexual harassment to Baughman’s attention. However, none of

that evidence establishes, or even relates to, an adverse

employment action (i.e., an alteration in Weiler's compensation,

terms, conditions, or privileges of employment; a deprivation of

employment opportunities; or an adverse affect on Weiler’s status

as an employee). See Robinson v. City of Pittsburgh, 120 F.3d

1286, 1300 (3d Cir. 1997). Despite the fact that Baughman may

have yelled at Weiler, or cut him off in a conversation, there is

no evidence connecting Baughman’s reactions to some employment

action adverse to Weiler.

Weiler also relies heavily upon the temporal proximity of

his reports to Baughman concerning sexual harassment and the

termination of his employment. The Court of Appeals for the

Third Circuit has held that timing alone is not enough to

establish a causal connection. Robinson v. City of Pittsburgh,

120 F.3d 1286, 1302 (3d Cir. 1997).

Based on the undisputed material facts supported by the

evidence of record, we are of the view that no reasonable finder

of fact could conclude that a causal connection exists between

Weiler’s reports of sexual harassment to Baughman and some

employment action adverse to Weiler, including the termination of

his employment at R & T Mechanical, Inc.

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While that conclusion in and of itself is a sufficient basis

to grant R & T Mechanical, Inc.’s, motion for summary judgment,

there is another reason for such a ruling.

If we assume for the purposes of this order that Weiler has

established a prima facie case, the next step to consider is

whether R & T Mechanical, Inc.’s, proffered reasons for taking

the adverse employment action were merely a pretext and that the

alleged retaliatory animus actually played a determinative or at

least a motivating role in its decision-making process.

Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183 (3d

Cir.2003). 

The letter dated July 19, 2004, sets forth four grounds for

the termination of Weiler’s employment at R & T Mechanical, Inc. 

Those reasons are 1) “performance recently regarding numerous

projects,” 2) “showing extreme and unacceptable losses,” 3) “lack

of communications and co-ordination on projects,” and 4) an

“allegation of sexual misconduct regarding photographs taken at

our Northern Office, ....” Weiler contends that they are

pretexts simply because they were not mentioned during the phone

call on July 19, 2004. 

To meet his burden at this point, a plaintiff is required to 

demonstrate such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer's proffered legitimate reasons for its action that

a reasonable factfinder could rationally find them unworthy

of credence.

Case 4:05-cv-02433-MM Document 24 Filed 10/25/06 Page 16 of 18
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Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994) (citation and

quotation omitted). 

The only reason asserted by Baughman during that telephone

call on July 19, 2004, was the fact that Weiler left the job site

in Alabama. However, Weiler cites no authority in support of the

proposition that an employer is required to provide each and

every reason for an adverse employment action immediately when

the action is taken.

Although most of the reasons referenced in the letter were

not discussed by Baughman and Weiler on July 19, 2004, there is

evidence in the record indicating that each of those cited

reasons is valid. Weiler’s failure properly to bid the Texas and

Alabama jobs caused substantial losses to the company. Weiler’s

bidding practices could be fairly described as poor job

performance. His failure to be able to contact Baughman on the

weekends while in Alabama demonstrates a lack of communication. 

Weiler’s dismantling of the night crew in Alabama and the

admitted failure to communicate with the day shift demonstrates a

lack of coordination. The situation concerning the fabricated

photographs of Hitman and Weiler, as of the date of the

termination of Weiler’s employment, remained an open issue which

Baughman had intended to address with Weiler on a trip to

Alabama. Weiler has not demonstrated any sufficient defect in

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those reasons which would allow a factfinder to discount them as

pretexts.

We will grant the Defendant’s motion for summary judgment.

NOW, THEREFORE, IT IS ORDERED THAT:

1. The motion (Document 47) for summary judgment filed by 

R & T Mechanical, Inc., is granted.

2. The Clerk of Court shall enter a judgment in favor of R

& T Mechanical, Inc.

3. The Clerk of Court shall close this file.

 s/Malcolm Muir 

 MUIR, U.S. District Judge

MM:gja

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