                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-2004

Shramban v. Aetna Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2742




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                                                             1NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                    No. 03-2742


                             BRIGITTE SHRAMBAN,
                                           Appellant

                                          v.

                                    AETNA;
                              JOSEPH KUSHNERICK


           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                           D.C. Civil No. 02-cv-00444
                 District Judge: The Honorable J. Curtis Joyner


                     Submitted Under Third Circuit LAR 34.1(a)
                                September 30, 2004


             Before: ROTH, BARRY, and CHERTOFF, Circuit Judges


                         (Opinion Filed: November 8, 2004)


                                      OPINION


BARRY, Circuit Judge

                                          I.

     Appellant Brigitte Shramban filed a complaint in the United States District Court
for the Eastern District of Pennsylvania against appellees Aetna, Inc. (“Aetna”) and

Joseph Kushnerick, alleging, as relevant here, violations of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §§2000e et seq. The District Court granted appellees’ motion for

summary judgment and Shramban appealed. We have jurisdiction under 28 U.S.C. §

1291, and will affirm.

       We review the District Court's grant of summary judgment de novo. Sempier v.

Johnson & Higgins, 45 F.3d 724, 727 (3d Cir. 1997). Summary judgment is proper “if

there is no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). Only if the record contains

insufficient evidence to allow a reasonable jury to find in favor of the non-moving party

at trial will summary judgment be warranted. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The reviewing court must consider

the evidence in the light most favorable to the non-moving party and draw all reasonable

inferences in his or her favor.

                                             II.

       We will set forth only those facts necessary to our decision. Appellant is a blonde

Caucasian woman originally from the former Soviet Republic of M oldavia. Since April

2000, she has been employed as a computer programmer for Aetna. In her deposition,

appellant testified that her supervisor, Mr. Kushnerick,1 repeatedly made offensive

   1
   Appellees deny that Kushnerick was, in fact, appellant’s “supervisor” for Title VII
purposes.

                                              2
comments towards her. Specifically, she testified that Kushnerick asked her if she “knew

what people said about blondes”; that Kushnerick said “there is only one way to tell a

natural blonde”; that Kushnerick twice made inappropriate contact with her hand while

exchanging paperwork; and that Kushnerick made comments about her personal life,

clothes, jewelry and appearance.2 Appellant’s App. at 158a, 426a-428a, 468a, 471a.

       In April and June, 2001, appellant formally complained to higher management of

Kushnerick’s conduct and the over-time he was requiring her to work. In response, Aetna

launched an investigation, and in July, 2001, transferred her to another position within the

company at a different facility. Although the parties agree that the transfer did not result

in any loss of pay or any reduced job code, appellant claims that the transfer was a

demotion because the new project was a “step backwards” in her career. The parties also

agree that appellant did not suffer any harassment after her reassignment.

                                            III.

       In order to successfully bring an action under Title VII for a hostile work

environment, appellant was required to prove the following: (1) she suffered intentional

discrimination because of her gender; (2) the discrimination was pervasive and regular;

(3) the discrimination detrimentally affected her; (4) the discrimination would

detrimentally affect a reasonable person of the same sex in that position; and (5) the

   2
    Appellant also testified that Kushnerick made derogatory comments concerning her
national origin. Although she initially complained of retaliation and of discrimination on
the basis of race, gender, religion and national origin, she has confined her appeal solely
to discrimination based on gender. Therefore, we will analyze that claim only.

                                             3
existence of respondeat superior liability. Andrews v. Conn, 895 F.2d 1469, 1482 (3d Cir.

1990) (citing Rabidue v. Osceola Refining Co., 805 F.2d 611, 619-20 (6th Cir. 1986),

cert. denied, 481 U.S. 1041 (1987)).

       The Supreme Court has made it quite clear that “[c]onduct that is not severe or

pervasive enough to create an objectively hostile or abusive work environment – an

environment that a reasonable person would find hostile or abusive – is beyond Title

VII’s purview.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 126 L. Ed. 2d 295, 114

S.Ct. 367 (1993). “Simple teasing, offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory changes in the ‘terms and conditions

of employment.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 141 L. Ed. 2d 662,

118 S.Ct. 2275, (1998). Viewing all the facts and the reasonable inferences therefrom in

the light most favorable to appellant, we agree with the District Court that appellant failed

to demonstrate that she suffered intentional discrimination within the meaning of Title

VII. While Kushnerick’s comments were certainly inappropriate if not boorish, they

simply do not rise to a level sufficient to create a hostile work environment. Moreover, as

the District Court also found, appellant failed to demonstrate either that Kushnerick’s

conduct was pervasive and regular or that it would detrimentally affect a reasonable

person of the same sex in appellant’s position, although that conduct detrimentally

affected appellant herself.

       Appellant’s inability to prove the elements noted above dooms her hostile work



                                             4
environment claim and, a fortiori, any claim of respondeat superior liability. We will

affirm the order of the District Court granting appellees’ motion for summary judgment.
