IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

THEODORE VROMAN, )

Plaintiff )

) C.A. 08-182 Erie

v. )

) Magistrate Judge Baxter

A. CRIVELLI BUICK PONTIAC )

GMC, INC., )

Defendants. )

OPINION AND ORDER

United States Magistrate Judge Susan Paradise Baxter.

I. INTRODUCTION

A. Relevant Procedural History

On June 23, 2008, Plaintiff Theodore Vroman, filed this employment discrimination

action against Defendant A. Crivelli Buick Pontiac GMC, Inc. (“Crivelli”). [Document # 1]. In

his Complaint, Plaintiff alleges that he was subjected to sex discrimination, a hostile or

offensive work environment, and retaliation, during his employment with Crivelli as a service

technician. In particular, Plaintiff claims that: (i) his female supervisor, Lugene Przestrzelski

(“Przestrzelski”), “entered a restroom occupied by members of the opposite sex...,” yet Crivelli

“had no effective complaint resolution procedure, and did not take action on Plaintiff’s

complaint” regarding the incident (Complaint at ¶¶ 21-22); (ii) Przestrzelski created a hostile or

offensive work environment by “frequently touching, patting and rubbing Plaintiff,” and by

making “suggestive and offensive comments to Plaintiff and other service technicians” (Id. at 

¶ 11, 28); and (iii) Przestrzelski retaliated against Plaintiff for his complaints to management by

“withholding lucrative service assignments” from him, thus depressing his earnings. (Id. at ¶ 14,

33-34). As relief for his claims, Plaintiff seeks compensatory and punitive damages, attorneys’

fees and costs.

Crivelli has filed a motion for summary judgment [Document # 20] seeking the entry of

judgment against Plaintiff, as a matter of law, on all three of his claims. Plaintiff has filed a

Case 1:08-cv-00182-SPB Document 30 Filed 03/22/10 Page 1 of 16
1

The factual history recited here has been gleaned from the undisputed material facts submitted by the parties

[Document ## 22 and 27], as well as the evidence of record. Crivelli’s Concise Statement of Material Facts

[Document # 22] will be referred to as “SMF ¶ ,” and Plaintiff’s Response to Crivelli’s Concise Statement of

Material Facts [Document # 27] will be referred to as “RSMF ¶ .” 

2

brief in opposition to Crivelli’s motion, and Crivelli has filed a reply brief. This matter is now

ripe for consideration.

B. Relevant Factual History1

Plaintiff began working for Crivelli as a service technician on May 23, 1997. (SMF ¶¶ 3,

8; RSMF ¶ 8). Przestrzelski became Plaintiff’s supervisor approximately two years later. (SMF

¶¶ 13, 14; RSMF ¶ 8). Archie Simpson (“Simpson”) was Przestrzelski’s boss. (SMF ¶ 24). 

During Plaintiff’s employment with Crivelli, service technicians were paid according to

a “flat rate” system, pursuant to which each technician’s pay depended upon the number and

type of jobs he completed in a workday. (SMF ¶ 15). Jeff Pennington (“Pennington”) was the

management official directly responsible for distributing work assignments to the service

technicians, although Plaintiff alleges that he frequently saw and heard Pennington and

Przestrselski confer about the allocation of these work assignments. (SMF¶¶ 16-17; RSMF 

¶¶ 16-17). Throughout the term of his employment with Crivelli, Plaintiff consistently made

less income and was consistently less productive than the other technicians. (SMF ¶ 51). In

particular, Plaintiff maintained an efficiency rating of 88.2 percent, while his counterparts’

efficiency ratings ranged from 155.8 percent to 111.3 percent. (Id.).

Sometime in 2005, Plaintiff and the other service technicians were asked to write down

their complaints on paper. (SMF ¶ 19). In response, Plaintiff and another service technician

submitted written complaints to Simpson. (SMF ¶ 20). In particular, Plaintiff complained that,

when he went to use the inspection desk and/or the store computer, which were located in

Przestrzelski’s office at the time, Przestrzelski would rub his back and pat his rear end in a

Case 1:08-cv-00182-SPB Document 30 Filed 03/22/10 Page 2 of 16
2

Plaintiff does not recall discussing these complaints with Simpson at any time prior to submitting his written

complaint in 2005; however, he does recall voicing similar complaints to Michael Crivelli, a personal friend and

son of the owner of Crivelli, before and after submitting his written complaint to Simpson. (SMF ¶ 29; RSMF ¶ 26).

3

sexually suggestive manner, while calling him “honey” or “sweetie.” (SMF ¶¶ 21, 27). In 2

response to the written complaints, the service desk, computer, and inspection supplies were

moved outside of Przestrzelski’s office, Przestrzelski’s office was moved to a more interior

location, and Przestrzelski was reprimanded by Simpson. (SMF ¶ 23). 

On or about August 4, 2006, Przestrzelski entered Crivelli’s bathroom through the body

shop entrance, placed some cleaning supplies in a storage space located in the bathroom, and

walked through the bathroom to exit through another door leading to the service area. (SMF 

¶ 32). At the time Przestrzelski entered and walked through the bathroom, Plaintiff was inside

allegedly talking to another service technician, Andy Wolbert (“Wolbert”), who was standing at

a urinal. (Id.). According to Plaintiff, this was the second time Przestrzelski had entered the

bathroom while Plaintiff was inside, with the first such incident having allegedly taken place in

the late 1990's; however, Plaintiff made no complaint regarding the first alleged incident. (SMF

¶ 31). 

Later on August 4, 2006, Plaintiff complained about Przestrzelski’s presence in the

bathroom to Michael Crivelli, who happened to be in the building that day. (SMF ¶ 36). The

following Monday, Simpson spoke to Plaintiff about the incident and informed him that it

would be “two weeks before he could pull [Przestrzelski] off the counter to reprimand her.”

(SMF ¶ 37). Simpson subsequently reprimanded Przestrzelski for carelessly entering the

restroom without checking it for occupants and, on August 25, 2006, Przestrzelski apologized

directly to Plaintiff and to Wolbert. (SMF ¶¶ 38-39). Nonetheless, in Plaintiff’s view, the

apology was not an effective response to the nature and severity of his complaint. (SMF ¶ 40). 

In particular, Plaintiff believed that, because this was not the first bathroom incident involving

Przestrzelski, “something more appropriate to the situation than just an apology” was needed,

such as a loss of pay or sending her home for a few days. (Id.). As a result, Plaintiff quit Crivelli

Case 1:08-cv-00182-SPB Document 30 Filed 03/22/10 Page 3 of 16
4

on August 25, 2006, which Plaintiff asserts was a constructive discharge caused by his having to

endure a “hostile and offensive work environment....” (SMF ¶ 1; Complaint at ¶ 15).

C. 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 Company, 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. Company v. Zenith Radio Corp., 475 U.S. 574

(1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the

non-movant 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

Case 1:08-cv-00182-SPB Document 30 Filed 03/22/10 Page 4 of 16
5

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. Company 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. 

D. Discussion

1. Sex Discrimination

In Count I of his Complaint, Plaintiff alleges that he suffered an adverse employment

action (constructive discharge) as a result of Przestrzelski “entering a restroom occupied by

members of the opposite sex, which would have resulted in the immediate termination of

employment of any male employee who had done a similar act by walking into a women’s

restroom.” (Complaint at ¶ 21). Plaintiff goes on to claim that “[t]he decision of Defendant to

treat the violation of Plaintiff’s privacy differently than it would have had a male engaged in the

same behavior was a violation of Title VII and the PHRA.” (Complaint at ¶ 23). 

Sex 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 sex discrimination enunciated by the

Case 1:08-cv-00182-SPB Document 30 Filed 03/22/10 Page 5 of 16
 

3

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 non-discriminatory reasons offered by the defendant are only a

pretext for discrimination. Id.

 

4

“[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). 

6

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Iadimarco v. 3

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

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 sex . Next, the burden shifts to the 4

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 defendant’s reason for the action

was pre-textual. Id. 

Here, Plaintiff has failed to submit any evidence to support his theory that more severe

disciplinary action would have been taken against a male supervisor charged with violating a

female employee’s privacy. Given the opportunity to submit such evidence in response to

Crivelli’s summary judgment motion, Plaintiff has merely presented similar conclusory

allegations in his opposition brief, such as: “[i]f a male supervisor continuously touched, patted

or rubbed a female subordinate, possibly even once, but especially after the employee had

complained, that male supervisor would be severely disciplined, most likely fired;” and “if a

male supervisor mindlessly walked into the women’s restroom without knocking, that male

supervisor would receive the equivalent of 100 lashes in the town square.” (Document # 28 at

Case 1:08-cv-00182-SPB Document 30 Filed 03/22/10 Page 6 of 16
7

pp. 6-7). Instead of substantiating these allegations with any type of evidence, Plaintiff simply

argues that “common sense tells us that a male supervisor would have been treated differently.”

(Id. at p. 10). However, Plaintiff’s belief as to what “common sense” may dictate fails to create

a genuine issue of material fact on the issue of prima facie discrimination. See Rhodes v. SCISomerset, 2009 WL 440963 at * 8-9 (W.D.Pa. Feb 23, 2009)(Plaintiff’s “belief that he would

have been treated differently if he had been female, in the absence of record evidence, is mere

speculation and is therefore insufficient to prove discrimination”); Lin v. Rohm & Haas Co.,

293 F.Supp.2d 505, 518-19 (E.D.Pa. 2003)(a plaintiff’s own belief that members of the opposite

sex are treated differently, standing on its own, is a conclusory statement, insufficient to

establish discriminatory intent). Accordingly, summary judgment will be entered in favor of

Crivelli on Count I of the Complaint.

2. Hostile Work Environment/Constructive Discharge

In Count II of his Complaint, Plaintiff alleges that he “suffered as the result of being

subjected to the hostile or offensive work environment created by his immediate supervisor’s

unwelcome and objected to sexual advances consisting of unwelcome and uninvited touching

and rubbing of Plaintiff’s body and inappropriate comments by his immediate supervisor.”

(Complaint at ¶ 28). Plaintiff alleges further that “[n]o action was taken by management to

control or restrain the behavior of the service manager and Plaintiff realized that he would either

have to endure the hostile and offensive work environment or resign.” (Id. at ¶ 16). Thus,

Plaintiff claims that “[h]e was constructively discharged as a result of Defendant’s inaction.”

(Id.).

Taken as a whole, the foregoing allegations raise a claim of constructive discharge

resulting from sexual harassment, or “hostile work environment,” attributable to Plaintiff’s

supervisor, Przestrzelski. This type of claim is commonly referred to as a compound hostile

work environment/constructive discharge claim.

To establish hostile work environment, Plaintiff must show that: (1) he suffered

intentional discrimination because of his sex; (2) the discrimination was severe or pervasive; 

Case 1:08-cv-00182-SPB Document 30 Filed 03/22/10 Page 7 of 16
8

(3) the discrimination detrimentally affected him; (4) a reasonable person would have been

detrimentally affected by such discrimination; and (5) the existence of respondeat superior

liability. Shaw v. Pittsburgh Board of Public Education, 2009 WL 86709 at * 6 (W.D.Pa. Jan.

12, 2009), citing Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir. 1999). In addition, 

since he has stated a compound hostile work environment/constructive discharge claim, Plaintiff

must also prove that the “working conditions were so intolerable that a reasonable person would

have felt compelled to resign.” Suders, 542 U.S. at 147 (citations omitted). See also Spencer v.

Wal-Mart Stores, Inc., 469 F.3d 311, 316 n.4 (3d Cir. 2006)(“to prove constructive discharge,

the plaintiff must demonstrate a greater severity or pervasiveness of harassment than the

minimum required to prove a hostile work environment”). These factors are discussed below.

a. Hostile Work Environment

i. Discrimination Based on Sex

The first element of a prima facie hostile work environment claim asks whether Plaintiff

suffered intentional discrimination because of his sex. In this regard, Plaintiff claims that

Przestrzelski frequently rubbed his back and patted his rear end, while calling him “honey” or

“sweetie.” The record is devoid of any evidence that Przestrzelski had any physical contact with

female employees, or verbally addressed females as “honey” or “sweetie,” while the record does

contain evidence that both Plaintiff and another male employee, Wolbert, were subjected to such

treatment. Thus, at the very least, there is a genuine issue of material fact as to whether Plaintiff

suffered intentional discrimination because of his sex. 

ii. Detrimental Affect of Discrimination

The third element inquires whether Plaintiff was detrimentally affected by

Przestrzelski’s alleged behavior, and is, thus, subjective in nature. As such, Plaintiff’s written

complaint to Simpson stating that he dreaded going to work because of Przestrzelski’s conduct

(Document # 22, Exhibit F at p. 5), along with his allegation that he felt he was compelled to

resign rather than continue to “endure” the alleged “hostile or offensive work environment”

Case 1:08-cv-00182-SPB Document 30 Filed 03/22/10 Page 8 of 16
9

(Complaint at ¶ 15), are sufficient to meet this factor. Conversely, the fourth “reasonable

person” factor is objective in nature and is often combined with the second “severe or

pervasive” factor to create a single inquiry: did the plaintiff suffer harassment “‘sufficiently

severe or pervasive to alter the conditions of his employment and create an abusive working

environment’”? Pa. State Police v. Suders, 542 U.S. 129, 146 (2004), quoting Meritor Savings

Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Jensen, 435 F.3d at 451. Thus, examination of

this factor will be subsumed in the Court’s analysis of the “severe or pervasive” factor, below.

iii. Severe or Pervasive Nature of Discrimination

In determining whether gender-based discrimination was severe or pervasive,

“occasional insults, teasing, or episodic instances of ridicule are not enough.” Jensen v. Potter,

435 F.3d 444, 451 (3d Cir. 2006). Instead, the Court must consider “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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). No one factor is dispositive,

and the analysis must focus on the “totality of the circumstances.” Andrews v. City of

Philadelphia, 895 F2d 1469, 1482 (3d Cir. 1990). 

Here, Plaintiff complains that he was subjected to Przestrzelski’s “unwelcome and

objected to sexual advances consisting of unwelcome and uninvited touching and rubbing of

Plaintiff’s body and inappropriate comments.” (Complaint at ¶ 28). During his deposition,

Plaintiff testified that Przestrzelski’s “uninvited touching” consisted of putting her arm around

him, rubbing his back, and patting him on his rear end, while the “inappropriate comments”

consisted of calling him “honey” and “sweetie.” (Plaintiff’s deposition transcript attached as

Exhibit A to Document # 22, at pp. 21-22, 24). Prior to 2005, this conduct would occur

primarily when Plaintiff went into Przestrzelski’s office to access the inspection desk and

computer that were located there. (Id. at p. 20). After these items were removed from

Przestrzelski’s office in 2005, Plaintiff testified that the inappropriate conduct continued at his

work area, although he didn’t specifically recall her patting his rear end after 2005. (Id. at pp.

Case 1:08-cv-00182-SPB Document 30 Filed 03/22/10 Page 9 of 16
5

It is interesting to note, however, that in his written complaint to Simpson in 2005, Plaintiff did not make any

mention of Przestrzelski’s inappropriate touching until the last substantive paragraph, where he objected to such

conduct as being “unprofessional.” (See Simpson Affidavit attached as Exhibit F to Document # 117, at Exhibit A). 

In addition, while Plaintiff made reference to Przestrzelski calling members of upper management “dear” and

“hon,” he made no mention of, or objection to, her calling him “honey” or “sweetie.” (Id.). This lack of attention to

the very conduct Plaintiff now challenges here certainly calls into question the severity and pervasiveness of such

conduct.

6

In fact, the conduct challenged here pales in comparison to that found cognizable in Amati, where it was alleged

that the plaintiff’s eventual supervisor subjected her to unwanted physical contact, including martial arts holds,

grabbing her breasts, rubbing her thighs, and hugging her; attempted to kiss her; asked her about sexual encounters

and fantasies; told her he found her physically attractive; repeatedly said they should have an affair, said she was

“not leaving him” to obtain another position; stared at her breasts; and exposed his penis and told her to perform

oral sex. Amati at * 18. 

10

22, 24-25). 

The record evidence fails to specify how frequent the foregoing conduct was alleged to

have occurred or how this conduct might have interfered with Plaintiff’s work performance.5

Nonetheless, even assuming Przestrzelski’s conduct occurred frequently, the challenged

touching and inappropriate name-calling can hardly be characterized as physically threatening or

humiliating. While the Court does not condone Przestrzelski’s behavior, and finds her conduct

inappropriate in a workplace setting, such behavior did not rise to the level of severity needed to

prove a hostile work environment, as it was not “extreme [enough] to amount to a change in the

terms and conditions of employment.” Faragher v. Boca Raton, 524 U.S. 775, 787 (1998);

Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005); see also Amati v. U.S.Steel Corp.,

2007 WL 3256850 at * 16 (W.D.Pa. Nov. 2, 2007)(workplace must be “permeated with

‘discriminatory intimidation, ridicule, and insult’ that is sufficiently severe or pervasive to alter

the conditions of the victim’s employment and create an abusive working environment.”)

(citation omitted). The additional allegation that Przestrzelski entered an occupied men’s 6

restroom on two different occasions, approximately seven years apart, does nothing to alter this

conclusion, as the record indicates that, on both occasions, she simply passed through the

restroom without looking, lingering, or exhibiting any behavior that could be characterized as

Case 1:08-cv-00182-SPB Document 30 Filed 03/22/10 Page 10 of 16
7

In fact, according to Wolbert, at the time of the second bathroom incident in August 2006, Plaintiff was not using

the restroom when Przestrzelski walked through, but had just entered the restroom at the same time Przestrzelski

was exiting. (See Wolbert Affidavit attached as Exhibit H to Document # 22).

8

Since the Court has determined that Plaintiff has failed to meet the combined inquiry presented by the second and

fourth elements of his prima facie claim of hostile work environment, it is not necessary to discuss the fifth element

regarding Crivelli’s vicarious liability. 

11

sexually offensive. 

7

In short, based on the totality of the circumstances presented on the record, no

reasonable juror could find that Plaintiff has established that the alleged harassment and

discrimination were severe or pervasive enough to prove the existence of a hostile work

environment. In addition, because Plaintiff has failed to put forth evidence sufficient to

8

establish a hostile work environment, he has, as a matter of law, failed to support his claim of

constructive discharge by demonstrating “working conditions ... so intolerable that a reasonable

person would have felt compelled to resign.” Suders, 542 U.S. at 147. Accordingly, summary

judgment will be entered in favor of Crivelli on Count II of Plaintiff’s Complaint.

3. Retaliatory Discrimination Claim

In Count III of his Complaint, Plaintiff alleges that he “was subjected to retaliation by

[Przestrzelski] because of his complaints to management regarding [Przestrzelski’s] behavior.”

(Complaint at ¶ 33). In particular, Plaintiff alleges that “Przestrzelski would retaliate against the

Plaintiff by withholding lucrative service assignments and assigning the Plaintiff to nonlucrative assignments such as oil changes.” (Id. at ¶ 14). As a result, Plaintiff claims that his

“earnings were depressed.” (Id.). 

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

Case 1:08-cv-00182-SPB Document 30 Filed 03/22/10 Page 11 of 16
12

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).

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,

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.” Fuentes, 32 F.3d at

764.

a.. The Prima Facie Case

i. Protected Activity

Considering the first element of Plaintiff’s retaliation claim, Title VII not only protects

the filing of formal charges of discrimination, but also “protects informal protests of

discriminatory employment practices, including making complaints to management, writing

critical letters to customers, protesting against discrimination by industry or by society in

general, and expressing support of co-workers who have filed formal charges.” Abramson, 260

F.3d at 288. Here, Plaintiff claims that he “complained to management on several occasions of

Przestrzelski’s behavior and requested that action be taken.” (Complaint at ¶ 13). Presumably,

these complaints would include Plaintiff’s written complaint to Simpson in or around August

2005. (Document # 22, Exhibit F at p. 5). Thus, the record is clear that Plaintiff engaged in

Case 1:08-cv-00182-SPB Document 30 Filed 03/22/10 Page 12 of 16
9

Plaintiff’s customer labor sales in years 2003 through June 2006 were as follows: 

$ 89,112 in 2003

$ 91,747 in 2004

$ 87,450 in 2005

$ 38,858 through June 2006

10

Plaintiff’s total labor percentage in years 2003 through June 2006 was as follows:

17.2% in 2003

18.6% in 2004

18.7% in 2005

16.5% through June 2006

11

Plaintiff’s dollar sales per repair order in years 2003 through June 2006 were as follows:

$ 53.94 in 2003

$ 57.27 in 2004

$ 66.35 in 2005

$ 63.70 through June 2006

13

protected activity under Title VII.

ii. Adverse Employment Action

To establish an adverse employment action, “a plaintiff must show that a reasonable

employee would have found the challenged action materially adverse, which in this context

means it well might have dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Burlington Northern and Santa Fe Ry. Co. v.White, 548 U.S. 53, 68

(2006)(internal quotations and citations omitted). “[W]hether an action is materially adverse

requires a fact intensive inquiry and an analysis of the totality of the circumstances.” King v.

City of New Kensington, 2008 WL 4492503 at * 22 (W.D.Pa. Sept. 30, 2008).

Here, Plaintiff alleges that Przestrzelski retaliated against him by “withholding lucrative

service assignments and assigning [him] to non-lucrative assignments such as oil changes” to

depress his earnings (Id. at ¶ 14). However, the evidence of record fails to support this

allegation. In fact, the productivity reports attached to Przestrzelski’s Affidavit make clear that

Plaintiff’s customer labor sales, total labor percentage, and dollar sales per repair order 9 10 11

Case 1:08-cv-00182-SPB Document 30 Filed 03/22/10 Page 13 of 16
12

Plaintiff’s wages in years 2003 through June 2006 were as follows:

$ 35,869.24 in 2003

$ 36,275.93 in 2004

$ 34,167.69 in 2005

$ 21,046.68 through June 2006

The wages of the other technicians over the same time period were as follows:

Barry Sandrock Kirk Hummer Andy Wolbert Charles Sampson

2003 $ 62,119.39 $ 58,161.01 $ 42,238.81 $ 13,276.08

2004 $ 58,741.74 $ 54,379.89 $ 39,233.69 $ 16,549.63

2005 $ 55,503.78 $ 54,976.66 $ 32,886.05 $ 17,317.91

2006 $ 39,350.56 $ 36,196.91 $ 29,106.74 $ 11,553.63

Although there was an obvious wage disparity between Plaintiff and the other technicians during the noted time

frame, this disparity remained consistent throughout, thus rebutting any implication that Plaintiff’s wages were

“depressed” in retaliation for Plaintiff’s complaints to management.

14

remained remarkably consistent from 2003 through June 2006. (See Przestrzelski Affidavit

attached as Exhibit E to Document # 22, at pp. 5-8). Similarly, Plaintiff’s wage figures during

the same time period also remained consistent, both in comparison to each other and in relation

to the other technicians. (Id. at p. 9). Thus, Plaintiff’s claim that Przestrzelski retaliated 12

against him by withholding “lucrative” repair work in a concerted effort to depress his earnings

is belied by the record evidence before the Court. 

Based on the foregoing, the Court finds that Plaintiff is unable to demonstrate that he

suffered a materially adverse employment action in retaliation for engaging in the protected

activity of complaining to management about Przestrzelski’s inappropriate behavior. As a

result, Plaintiff cannot establish a prima facie case of retaliatory discrimination, and summary

judgment will be entered in favor of Crivelli on Count III of Plaintiff’s Complaint.

4. PHRA Claims

Plaintiff’s PHRA claims are interpreted under the same standard as Title VII claims. See

Kelly v. Drexel University, 94 F.3d 102, 105 (3d Cir. 1996). Since Plaintiff has failed to

provide sufficient evidence to survive Crivelli’s motion for summary judgment on his Title VII

claims, he similarly fails on his PHRA claims.

Case 1:08-cv-00182-SPB Document 30 Filed 03/22/10 Page 14 of 16
An appropriate order follows.

Case 1:08-cv-00182-SPB Document 30 Filed 03/22/10 Page 15 of 16
16

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

THEODORE VROMAN, )

Plaintiff )

) C.A. 08-182 Erie

v. )

) Magistrate Judge Baxter

A. CRIVELLI BUICK PONTIAC GMC, )

INC., )

Defendant. )

ORDER

AND NOW, this 22 day of March 2010, nd

IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment

[Document # 20] is GRANTED, and this action is DISMISSED. 

 The Clerk is directed to mark this case closed.

S/Susan Paradise Baxter 

SUSAN PARADISE BAXTER

United States Magistrate Judge

Case 1:08-cv-00182-SPB Document 30 Filed 03/22/10 Page 16 of 16