1

 The parties disagree over whether Plaintiff has pled a hostile work environment claim. 

Defendant makes much of the fact that the undersigned in a previous Report and

Recommendation characterized the case as one of “gender discrimination and retaliation”

without reference to any hostile work environment claim. Defendant’s reliance on an

introductory sentence in a Report and Recommendation on a motion for more definite

statement/to dismiss is at its own peril. Under the notice pleading standard of the Federal Rules

of Civil Procedure and the allegations at ¶ 15 and ¶ 20 of the complaint, as well as Federal Rule

of Civil Procedure 15(b) allowing amendments to conform to the evidence, Defendant would be

foolish to overlook a hostile work environment claim.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

BRIAN D. PIERCE )

Plaintiff, )

)

vs. ) C.A. No. 03-173Erie

) District Judge McLaughlin

PA DEPT OF CORRECTIONS, ) Magistrate Judge Baxter

Defendant. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION 

I. RECOMMENDATION

It is respectfully recommended that Defendant’s motion for summary judgment

[Document # 23] be denied.

II. REPORT

A. Introduction

Plaintiff, Brian D. Pierce, brought this employment discrimination action on May 27,

2003. Plaintiff alleges that he is a male nurse employed by the Pennsylvania Department of

Corrections and has been the victim of gender discrimination and retaliation.1 Plaintiff’s

employment was terminated on May 10, 2002 and he filed a charge of discrimination with the

EEOC on October 28, 2002. As relief, Plaintiff seeks an award of back pay, front pay,

Case 1:03-cv-00173-SJM Document 34 Filed 02/24/06 Page 1 of 12
2

compensation for lost fringe benefits, compensatory damages for humiliation, embarrassment

and loss of self-esteem, attorney’s fees and punitive damages.

Defendant has moved for summary judgment [Document # 23], Plaintiff has filed a brief

in opposition [Documents # 27 and 28], and Defendant has filed a reply to the opposition

[Document # 29]. 

B. Standard of Review

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted

if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Rule 56(e) further provides that when

a motion for summary judgment is made and supported, “an adverse party may not rest upon the

mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is

a genuine issue for trial. If the adverse party does not so respond, summary judgment, if

appropriate, shall be entered against the adverse party.” Id. 

A district court may grant summary judgment for the defendant when the plaintiff has

failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v.

American Sterilizer Co., 126 F.3d 494, 500 n.2 (3d Cir. 1997). The moving party has the initial

burden of proving to the district court the absence of evidence supporting the non-moving

party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v.

Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further,

“[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential

fact <to demand at least one sworn averment of that fact before the lengthy process of litigation

continues.’” Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) quoting

Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). 

The burden then shifts to the non-movant to come forward with specific facts showing a

genuine issue for trial. Matsushita Elec. Indus. Co. v Zenith Radio Corp., 475 U.S. 574 (1986);

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Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the nonmovant must present affirmative evidence - more than a scintilla but less than a preponderance -

which supports each element of his claim to defeat a properly presented motion for summary

judgment). The non-moving party must go beyond the pleadings and show specific facts by

affidavit or by information contained in the filed documents (i.e., depositions, answers to

interrogatories and admissions) to meet his burden of proving elements essential to his claim. 

Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.

A material fact is a fact whose resolution will affect the outcome of the case under

applicable law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Although the court

must resolve any doubts as to the existence of genuine issues of fact against the party moving for

summary judgment, Rule 56 “does not allow a party resisting the motion to rely merely upon

bare assertions, conclusory allegation or suspicions.” Firemen’s Ins. Co. of Newark, N.J. v.

DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Summary judgment is only precluded if the

dispute about a material fact is “genuine,” i.e., if the evidence is such that a reasonable jury

could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-249. 

C. Non-Exhaustion of all claims

Defendant claims that Plaintiff has failed to exhaust his administrative remedies as to his

claims.

A party seeking relief under Title VII or the Americans with Disabilities Act, must file

an administrative charge with the Equal Employment Opportunity Commission and/or the

appropriate state agency before that party may seek relief in federal court. Antol v. Perry, 82

F.3d 1291, 1295 n.3 (3d Cir.1996) (“exhaustion is a prerequisite to bringing suit” under Title

VII); Deily v. Waste Management of Allentown, 118 F.Supp.2d 539, 541 (E.D. Pa. 2000)

(plaintiff must exhaust ADA claims). Exhaustion of the administrative process is a

“precondition for filing suit under Title VII, the ADEA, the ADA and the PHRA.” Nerosa v.

Storecast Merchandising Corp., 2002 WL 1998181, at * 3 (E.D.Pa. Aug 28, 2002). “Because

the aim of the statutory scheme is to resolve disputes by informal conciliation, prior to litigation,

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2

 In order to establish a prima facie case for a Title VII employment discrimination

claim where there is no direct evidence of discrimination, the plaintiff must show that (1) he is a

member of a protected class; (2) he was qualified for the job and satisfied his employer's

expectations; (3) he was dismissed despite his satisfactory performance; and (4) after his

dismissal, the job remained open and the employer sought applicants for it. McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973). The burden then shifts to the defendant to show that

it took the adverse employment action against the plaintiff for a legitimate, nondiscriminatory

reason. Id. Finally, the plaintiff has an opportunity to demonstrate that the legitimate and nondiscriminatory reasons offered by the defendant are only a pretext for discrimination. Id.

4

suits in the district court are limited to matters of which the EEOC has had notice and a chance,

if appropriate, to settle.” Anjelino v. The New York Times Company, 200 F.3d 73, 93 (3d Cir.

2000) quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir. 1976).

The Supreme Court has held that exhaustion of administrative remedies in the

employment context is not a jurisdictional requirement and is subject to doctrines of waiver,

estoppel and equitable waiver. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1992).

See also Gooding v. Warner-Lambert Company, 744 F.2d 354, 358 (3d Cir. 1984). 

Although Defendant argues that part of the complaint should be dismissed due to failure

to exhaust administratively, Defendant does not specify what aspects of the complaint exceed

the scope of the claim brought before the EEOC. A review of the complaint and the February

25, 2003, letter from the EEOC to Plaintiff [Document # 30, Attachment A] demonstrates that

the claims of gender discrimination and retaliation were investigated by the EEOC. 

Accordingly, Defendant’s motion for summary judgment should be denied as to the nonexhaustion of Plaintiff’s claims.

 

D. Reverse Gender Discrimination

Gender discrimination against males is commonly referred to as reverse discrimination. 

In cases involving reverse discrimination, the Third Circuit has articulated a modified burden

shifting analysis that differs from the usual test for gender discrimination enunciated by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).2 See Iadimarco v.

Runyon, 190 F.3d 151 (3d Cir. 1999). Under Iadimarco, the plaintiff must establish a prima

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3

 “[A] plaintiff who brings a ‘reverse discrimination’ suit under Title VII should be able

to establish a prima facie case in the absence of direct evidence of discrimination by presenting

sufficient evidence to allow a reasonable fact finder to conclude (given the totality of the

circumstances) that the defendant treated plaintiff ‘less favorably than others because of his race,

color, religion, sex, or national origin.’” Iadimarco, 190 F.3d at 163 quoting Furnco

Construction Corp. v. Waters, 438 U.S. 567, 577 (1978). 

4

 In its motion for summary judgment, Defendant cites and applies the McDonnell

Douglas test which governs a typical gender discrimination case, the first prong of which is to

establish that the plaintiff is a member of a protected class. See infra, footnote 2. Clearly, the

typical McDonnell Douglas analysis does not translate into a reverse gender discrimination case

as a male will not be able to demonstrate that he is a member of a protected class. 

5

facie case by presenting sufficient evidence to allow a fact finder to conclude that the defendant

treated some people less favorably than others based on sex3. Next, the burden shifts to the 

defendant to articulate a legitimate, nondiscriminatory reason for the employment action. See

Corbett v. Sealy, 135 Fed. Appx. 506, 509 (3d Cir. 2005) (explaining Iadimarco standard);

Medcalf v. Trustees of University of Pennsylvania, 71 Fed. Appx. 924, 927 (3d Cir. 2003)

(same). Finally, the burden shifts back to plaintiff to show the defendants reason for the action

was pretextual. Id. 

After citing the wrong standard for analysis of a reverse gender discrimination case4,

Defendant’s entire argument in support of summary judgment as to the prima facie case reads as

follows:

In the instant case, it is questionable whether plaintiff demonstrates a prima facie

case of gender discrimination. Plaintiff makes “bald statements” and “bare-bone

allegations” in order to attempt to demonstrate a prima facie case. This is not

enough. 

Document # 24, page 10. 

In his Opposition Brief, Plaintiff argues that he may meet the first element of the prima

facie case by “showing background circumstances supporting the suspicion that the defendant is

the unusual employer who discriminates against the majority.” Document # 28, page 13. 

However, Plaintiff, like Defendant, misunderstands and misapplies the relevant and appropriate

burden shifting analysis applicable to cases of reverse gender discrimination. This “background

circumstances” approach to establishing a prima facie case of reverse discrimination was

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6

expressly rejected by the Third Circuit several years ago. See Iadimarco, 190 F.3d at 160 (“We

now reject the ‘background circumstances’ analysis set forth in Parker, Harding, and their

progeny.”). 

Because Defendant has not appropriately supported his motion for summary judgment on

the prima facie case and because Plaintiff has not presented evidence to support a conclusion

that Defendant treated some more favorably due to their gender, this Court can make no

conclusion as to the prima facie case of reverse gender discrimination. Based on the record

presently before this Court and the inappropriate arguments advanced by the parties at this late

stage of the proceedings, this Court finds that summary judgment is inappropriate and should be

denied.

E. Retaliation

Defendant moves for summary judgment on the basis that Plaintiff has failed to state a

claim of retaliation. 

To analyze a claim of retaliation, this Court must follow a modified version of the

McDonnell Douglas burden shifting framework. Under Title VII, it is unlawful for an employer

to discriminate against an employee “because he has opposed any practice made an unlawful

employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a) (commonly called the “retaliation

provision of Title VII”). In order to state a claim of retaliatory discrimination, a plaintiff must

show three elements: “(1) the employee engaged in a protected 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.” Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 286 (3d Cir.

2001). See also Springer v. Henry, ___ F.3d ___, 2006 WL 121942 (3d Cir. January 18, 2006)

(laying out standard for retaliation analysis for a public employee engaging in protected First

Amendment speech). 

In the event that a plaintiff satisfies the prima facie case of retaliation, the burden of

production, not the burden of persuasion, shifts to the employer to “articulate some legitimate,

Case 1:03-cv-00173-SJM Document 34 Filed 02/24/06 Page 6 of 12
 5 Importantly, Defendant does not argue that Plaintiff fails to meet either the protected

activity or the adverse action prongs of a prima facie case of retaliation. See Document #

24, page 13. Because Defendant has not addressed these prongs in his motion for

summary judgment, this Court will not sua sponte raise them and for purposes of the

analysis on this motion this Court presupposes that Plaintiff has sufficiently met these

other prongs.

7

non-discriminatory reason” for its adverse employment action. Fuentes v. Perskie, 32 F.3d 759,

763 (3d Cir. 1994) quoting McDonnell Douglas, 411 U.S. at 802. Then, a plaintiff must prove

by a preponderance of the evidence that the proffered reason was merely a pretext and that in

actuality, a retaliatory animus played a determinative or at least a motivating role in the

employer’s decision making process. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.

133, 143 (2000); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183 (3d Cir. 2003). To do

this, a plaintiff must “demonstrate such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that

a reasonable fact-finder could rationally find them unworthy of credence.” Austin v. Norfolk

Southern Corp., ___ F.3d ___, ___, 2005 WL 3420178, at *6 (3d Cir. Dec.14, 2005) quoting

Fuentes, 32 F.3d at 764. 

1. The prima facie case

Defendant asserts that Plaintiff has failed to establish a prima facie case of retaliation in

that he has not established the causal link between the adverse action by the employer and the

engagement by him in a protected activity because Plaintiff fails to demonstrate that his

employer knew about any protected activity.5 Document # 24, pages 12-13. Plaintiff argues to

the contrary. 

A suggestive temporal proximity between the protected activity and an alleged retaliatory

act can be adequate to meet the causal link requirement. Woodson v. Scott Paper Co., 109 F.3d

913, 920 (3d Cir. 1997) quoting Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989)

(“temporal proximity between the protected activity and the termination is sufficient to establish

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6

 On the other hand, “when temporal proximity between protected activity and allegedly

retaliatory conduct is missing, courts may look to the intervening period for other evidence of

retaliatory animus.” Krouse v. American Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir. 1997).

7

 Plaintiff later provided testimony in September of 2002 in the federal lawsuit that

followed the administrative proceedings. See White v. Department of Corrections, Civil Action

Number 00-377Erie. 

8

a causal link.”). However, the “mere passage of time is not legally conclusive proof against

retaliation.” Woodson, 109 F.3d at 920 quoting Robinson v. SEPTA, 982 F.2d 892, 894 (3d

Cir. 1993) (“The [trial] court could reasonably find that the initial series of events [from two

years prior] thus caused [Plaintiff’s] and [Defendant’s] relationship to deteriorate, and set a

pattern of behavior that [Defendant] followed in retaliating against [Plaintiff’s] later efforts at

opposing the Title VII violations he perceived.”). “If timing alone could ever be sufficient to

establish a causal link, ... the time of the retaliatory action must be unusually suggestive of

retaliatory motive before a causal link will be inferred.” Robinson v. City of Pittsburgh, 120

F.3d 1286, 1302 (3d Cir. 1997).6

In his Opposition Brief, Plaintiff claims that he was not the subject of any discipline

from 1995 through September of 2000. See also Document # 28-4, Plaintiff’s deposition, page

16. In September of 2000, Plaintiff gave testimony adverse to the Department of Corrections in

the administrative proceedings (involving gender discrimination) of Michael White7, a colleague

and male nurse. It is not clear from the record before this Court whether prison staff at either

SCI-Albion or SCI-Cambridge Springs knew of Plaintiff’s involvement in the EEOC

investigation.

In March of 2001, after being identified as a favorable witness for the prosecution in

White’s federal lawsuit, Plaintiff was accused of committing an infraction involving a miscount

of the narcotic drug Vicodin which had occurred in September of 2000 (six months prior). 

Document # 28-4, Plaintiff’s deposition, page 10-11. Within four days of being listed as a

witness in the federal lawsuit, Plaintiff was suspended for the September 2000 infraction. 

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8

 “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.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1484

(3d Cir. 1990).

9

 Defendant has not made any attempt to explain the six-month lag in this disciplinary

action.

10

 Defendant did not argue that Plaintiff failed to meet the protected activity or adverse

action prongs of the prima facie case. See infra, footnote 5. 

9

As a further incident of retaliation8, Plaintiff argues that on October 26, 2001, he filed an

internal complaint alleging discrimination and retaliation. In November 2001, Superintendent

Brooks dismissed the claim without investigation based on her finding that Plaintiff was not a

member of a protected class. Document # 28-2, page 15. Within four months of the dismissal

of that internal complaint, Plaintiff claims that he began to be disciplined for acts that were

routinely performed by other female employees.

This Court finds that Plaintiff has sufficiently alleged a causal link to meet a prima facie

case of retaliation. The timing of Plaintiff’s difficulties are certainly suggestive. Especially

suggestive is the timing of the March 2001 disciplinary action taken against Plaintiff for an

alleged September 2000 infraction - six months following the infraction but only four days after

he was identified as a witness in a federal lawsuit against the Department of Corrections.9 

2. Defendant’s Legitimate Reason

For purposes of this motion, this Court presupposes that Plaintiff has met his burden of

establishing a prima facie case of retaliation10, the burden of production now shifts to Defendant

to “articulate some legitimate, non-discriminatory reason” for its adverse employment action. 

Fuentes, 32 F.3d at 763. Defendant’s burden is “relatively light” in this regard. Id.

Defendant argues that Plaintiff’s termination letter articulates its legitimate reasons for

terminating Plaintiff’s employment. The May 10, 2002 letter signed by Superintendent Brooks

lists numerous reasons for Plaintiff’s termination, including:

Case 1:03-cv-00173-SJM Document 34 Filed 02/24/06 Page 9 of 12
10

• that on March 9 and 10, 2002, Plaintiff altered the operation of a medication

line after a security guard questioned him the previous day - the Disciplinary

Committee concluded that Plaintiff acted unprofessionally in this regard.

• that on March 20, 2002, Plaintiff refused to provide inmates with medication

after the medication line had closed despite being advised by the team leader that

one of the inmates was on a “life-sustaining anti-epileptic” medication. After

three direct orders from a supervisor, Plaintiff gave the needed medication. The

Disciplinary Committee concluded that Plaintiff failed to perform his duties with

integrity and impartiality, failed to provide humane and impartial treatment to

inmates and failed to follow lawful orders promptly.

• that on April 1, 2002, Plaintiff failed to accurately log certain narcotic

medications. The Disciplinary Committee concluded that due to carelessness,

Plaintiff had failed to perform his duties with integrity despite having previously

been disciplined for medication count discrepancies. 

• that on April 1, 2002, Plaintiff ordered a sixty day supply of HIV medications

without the required pre-release notification in conflict with established policy. 

The Disciplinary Committee concluded that such actions showed disregard for

established policy and compromised Plaintiff’s integrity and impartiality.

• that on April 5, 2002, Plaintiff violated policy by going into the Restricted

Housing Unit without the medication bag and Medication Administration

Record. Plaintiff had previously been counseled on proper procedure on August

28, 2001 and March 11, 2002. Additionally, Plaintiff was found to have prepoured medications, borrowed medications for other inmates’ blister cards, and

failed to crush psychiatric medications in violation of policy. 

• that on April 9, 2002, Plaintiff engaged in a conversation with inmates during

which he made negative statements about the Residential Substance Abuse

Treatment program. 

• that during the Disciplinary Committee’s investigation, Plaintiff argued that

others were not disciplined for engaging in similar conduct, but Plaintiff refused

a direct order to name names. Plaintiff failed to cooperate with an investigation

in this regard.

Document # 30-2, Termination Letter dated May 10, 2002.

The Department of Corrections has met its “relatively light burden” to show a legitimate,

non-discriminatory reason for Plaintiff’s termination. 

3. Pre-text

The burden now shifts back to Plaintiff to show by a preponderance of the evidence that

the offered reasons are actually a pretext and that a retaliatory animus played a motivating factor

in the employer’s decision. Schellenberger, 318 F.3d 183; Fuentes, 32 F.3d at 764. The Third

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11

 Defendant has done nothing to refute Plaintiff’s argument of pretext. See Document

#24, page 13.

11

Circuit has instructed that in order to show pretext, a plaintiff must “demonstrate such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

proffered legitimate reasons for its action that a reasonable fact-finder could rationally find them

unworthy of credence.” Austin, ___ F.3d at ___, 2005 WL 3420178, at *6 quoting Fuentes, 32

F.3d at 764. 

Plaintiff argues that the reasons for his termination were pretextual in that he was

disciplined for acts routinely performed by female coworkers who had not engaged in protected

activities. Shortly before his termination, Plaintiff filed internal complaints concerning the acts

of numerous coworkers including borrowing medications from other inmates, pre-pouring

medications, giving medications out of stock without recording it. Document # 28-8, pages 16-

19. All of these complaints involved activities which formed the basis for Plaintiff’s

termination, yet Plaintiff contends that none of these coworkers were disciplined for their

actions [Document # 28-4, Plaintiff’s Deposition, pages 5-8]. At the very least, this is an

inconsistency in Defendant’s proffered legitimate reason for termination.11 

Therefore, on Defendant’s motion for summary judgment, as Defendant has not proved

to this Court that there is an absence of evidence supporting Plaintiff’s claims, summary

judgment should be denied.

F. Pennsylvania Human Relations Act

Defendant argues that Plaintiff cannot state a claim under the PHRA. Because Plaintiff

makes clear in his Opposition Brief that he does not raise a claim under the PHRA, this Court

need not address Defendant’s argument in this regard.

Case 1:03-cv-00173-SJM Document 34 Filed 02/24/06 Page 11 of 12
12

III. CONCLUSION

For the foregoing reasons, this Court respectfully recommends that Defendant’s motion

for summary judgment [Document # 23] be denied.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local

Rule 72.1.4 B, the parties are allowed ten (10) days from the date of service to file written

objections to this report. Any party opposing the objections shall have seven (7) days from the

date of service of objections to respond thereto. Failure to timely file objections may constitute a

waiver of any appellate rights. 

S/ Susan Paradise Baxter

SUSAN PARADISE BAXTER

Chief United States Magistrate Judge

Dated: February 24, 2006

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