                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-17-2006

Benny v. Dept Corr PA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5499




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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                      No. 05-5499


                                    JUDITH BENNY,
                                                       Appellant
                                            v.

                 COMMONWEALTH OF PENNSYLVANIA,
          DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL
                     INSTITUTION AT SOMERSET,
                                         Appellee
                            ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                           (D.C. Civ. No. 03-cv-00127)
                    District Judge: Honorable Kim R. Gibson
                                  ____________

                       Submitted Under Third Circuit L.A.R. 34.1(a)
                                   October 26, 2006

                 Before: SMITH, WEIS & NYGAARD, Circuit Judges

                                Filed November 17, 2006
                                     ____________

                                       OPINION


WEIS, Circuit Judge.

             This is an employment discrimination action brought pursuant to the

Americans with Disabilities Act of 1990, 42 U. S. C. § 12101 et seq., the Age

Discrimination in Employment Act of 1967, 29 U. S. C. § 621, et seq., and Title VII of the
Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq. Plaintiff contends that defendant

discriminated against her on the basis of age and disability and that she was subjected to

sexual harassment in the form of a hostile work environment.

              The District Court dismissed the age and disability discrimination claims and

plaintiff does not appeal those orders. The only issue presented in this appeal is whether

plaintiff’ claim for sex discrimination based on a hostile work environment can survive

summary judgment. We conclude that it cannot.

              Plaintiff is a 61 year-old woman who was employed by the State

Correctional Institution at Somerset beginning in 1997. In April of 2004, she was

transferred to the State Correctional Institution at Laurel Highlands. She alleges that,

during her tenure at the Somerset institution, she encountered several inappropriate sexual

remarks from co-workers that she alleges constituted a pattern of sex discrimination in the

workplace.

              In order to establish a case of sex discrimination, plaintiff must show that the

workplace is both “objectively and subjectively offensive, one that a reasonable person

would find hostile or abusive, and one that the victim in fact did perceive to be so.”

Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (citing Harris v. Forklift

Systems, Inc., 510 U.S. 17, 21-22 (1993)).




              The court must consider the totality of the circumstances when determining

                                              2
whether a hostile work environment exists, including 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, 510 U.S. at 23. “Simple teasing, offhand comments, and isolated

incidents (unless extremely serious) will not amount to” a hostile work environment.

Faragher, 524 U.S. at 788 (internal quotations and citations omitted).

              The sporadic incidents of sexually inappropriate language that plaintiff

alleges do not comprise an objectively hostile work environment. These combined

incidents are significantly less severe and less pervasive than the circumstances that courts

have found sufficient to constitute a hostile work environment. See, e.g., Harris, 510 U.S.

at 19-20; Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 60-61 (1986).

              Because plaintiff’s claim fails on the merits, we need not reach the issue of

whether her claim is time-barred.

              The judgment of the District Court will be affirmed.




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