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


2-3-2004

Trunzo v. Assn Owners Hideout
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2088




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 03-2088


                     MARY ALICE TRUNZO; JAMES TRUNZO,
                                             Appellants

                                           v.

       ASSOCIATION OF PROPERTY OWNERS OF THE HIDEOUT, INC.;
          THOMAS GRELLA; ROSALIE STAHLER; LEO TARKETT;
      LEONARD LONDON; BARBARA WARREN-PACE; ROBERT PRIEST;
           ANTHONY ULLO; JANE KRASNY; KEVIN MCGOWAN


                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Civil No. 00-cv-02128)
                      District Judge: Honorable James M. Munley
                                       _________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 13, 2004

           Before: SLOVITER, RENDELL, and ALDISERT, Circuit Judges.

                     (Filed      February 3, 2004                 )
                                     __________

                              OPINION OF THE COURT
                                    __________
RENDELL, Circuit Judge.

      Plaintiff Mary Alice Trunzo (“Trunzo”) and her husband James Trunzo appeal a

final order of the District Court, which granted separate motions for summary judgment
filed by defendants Association of Property Owners of the Hideout, Inc. (“POA”),

Rosalie Stahler, Leo Tarkett, Leonard London, Barbara W arren-Pace, Robert Priest,

Anthony Ullo, Jane Krasny and Kevin McGowan (“the individual defendants”), and by

defendant Thomas Grella (“Grella”). We agree with the District Court that Trunzo has

not presented sufficient evidence to support her sexual discrimination claims and that the

defendants are entitled to judgment as a matter of law. Accordingly, we will affirm.

       The District Court exercised jurisdiction based on 28 U.S.C. § 1331 and 28 U.S.C.

§ 1367. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the

District Court’s grant of summary judgment is plenary. Morton Intern., Inc. v. A.E.

Staley Mfg. Co., 343 F.3d 669, 679 (2003).

       Trunzo was the community manager of the Hideout, a housing development in

Lake Ariel, Pennsylvania, where she managed its daily operations and reported to the

POA Board of Directors. In July of 1995, Grella purchased a home in the development.

In mid-1997, Trunzo temporarily barred Grella from the Hideout’s clubhouse pub

because of his behavior towards the pub’s staff. Motivated to some extent by Trunzo’s

decision, Grella ran for and won a position on the POA Board of Directors. Grella served

on the Board from October of 1997 through October of 2000. During his tenure on the

Board, Grella had several confrontations with Hideout employees who worked under

Trunzo as community manager over what Grella perceived as incompetent service.

       One of these incidents involved a false fire alarm at the pub on February 14, 1999.



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When Hideout security personnel were unable to shut off the alarm in what Grella

considered a timely fashion, he became confrontational and questioned their competence.

The personnel filed complaints about Mr. Grella’s behavior, and the security director filed

a report about the incident with Rosalie Stahler, the Board’s President at the time. When

Stahler released the director’s report to the full Board on March 9, 1999, Grella was upset

that she had done so without his input or notification, and telephoned Trunzo to complain.

Trunzo describes the phone call as profane and abusive. She claims that Grella swore

throughout the conversation, constantly saying “F’ing this, F’ing that” and “us[ing] the

‘C’ word against her [Stahler],” and that he questioned Stahler’s intelligence and

competence.

       An executive session of the Board met that evening. Because the person who

normally took minutes of Board meetings was absent, Trunzo was pressed into service.

She witnessed a heated discussion between Grella and the other Board members, during

which Grella is alleged to have used profanity, and to have said that Stahler was a

“fucking bitch,” and that Stahler “had a bitch up her ass.”

       On June 24, 1999, Grella, upset that Stahler and Trunzo had met with a real estate

broker to discuss the POA’s possible purchase of a tract of land without notifying him,

made another angry phone call to Trunzo. During this exchange, Trunzo alleges that

Grella swore and screamed at her repeatedly, telling her that she was stupid and

incompetent, and that she “didn’t have the brains [she was] born with.”



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       After the June 24 telephone conversation, Trunzo filed a complaint with Stahler,

claiming that Grella’s action created a hostile work environment. Grella then filed a

“cross-complaint” against Trunzo in which he alleged that she had misused Hideout

funds. On July 14, 1999, the POA Board instructed Grella to refrain from having any

contact with Trunzo. Despite the fact that Grella complied with the Board’s instruction

and had no direct contact with Trunzo after that date, she claims that she continued to

suffer from Grella’s action, who, she alleges, continued to complain about her and to

spread lies about her performance. She also claims that the Board did nothing to stop

these continuing attacks.

       On May 15, 2000, Trunzo took a leave of absence from her position due to health

problems she attributed to Grella’s conduct. Her employment contract was set to expire

on May 31, 2000, but she and the Board agreed to extend the contract to June 30 to allow

for negotiation of a new contract. During the negotiations, the Board offered Trunzo a

one-year contract as community manager. Trunzo, who desired a four-year contract, did

not accept the Board’s offer, and her employment terminated on June 30, 2000.

       Trunzo and her husband then filed this complaint, alleging violations of Title VII

of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., as amended, and

the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 951 et seq. After

dismissing, with the agreement of the parties, the Title VII claims against the individual

defendants and Mr. Trunzo’s loss of consortium claim, the District Court then considered



                                             4
the defendants’ motions for summary judgment on the remaining claims, the Title VII

claim against the POA, and the PHRA claims against the individual defendants and

Grella.

          Ultimately, the District Court found that “[t]he incidents that Trunzo complain[ed]

of were isolated and sporadic,” and that only the June 24 phone call “concerned her

directly.” Furthermore, it concluded that “Grella never again had an offensive encounter

with her” after the POA Board instructed him to have no direct contact with her. As a

result, it granted the motions for summary judgment. This appeal followed.

          Title VII makes it unlawful for an employer “to fail or refuse to hire or to

discharge any individual, or otherwise to discriminate against any individual with respect

to his compensation, terms, conditions, or privileges of employment, because of such

individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has held that Title

VII supports a cause of action where sexual harassment was so pervasive that it had the

effect of creating a hostile work environment and of altering the conditions of

employment. Meritor Savings Bank, FSB v. Vinson, 477 U.S, 57, 66 (1986). In order to

establish a hostile work environment sexual harassment claim, the plaintiff must show

that: (1) she suffered intentional discrimination because of her sex; (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 existence of respondeat superior liability. Andrews v. City of



                                                5
Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). We agree with the District Court that,

even if a jury could conclude that Trunzo has suffered intentional discrimination because

of her sex, she has not presented sufficient evidence for a jury to conclude that the

discrimination was pervasive and regular, or that respondeat superior liability existed.

       Discrimination is pervasive where the “incidents of harassment occur either in

concert or with regularity.” Id. at 1484 (quotations and citations omitted). Trunzo

recounts eleven incidents occurring over an 30-month period to support her argument that

Grella’s alleged harassment of her was pervasive. However, at least three of these

incidents - Grella’s “cross-claim,” his advice to a candidate for the Board who criticized

Trunzo’s job performance, and his involvement in the Board’s decision not to offer

Trunzo a four-year contract - cannot be considered acts of sexual harassment unless they

are part of a wider pattern of sexual harassment against Trunzo or women in general. No

such pattern exists here. Of the eight incidents where Grella allegedly intimidated or

humiliated Hideout employees, Trunzo witnessed only three of these, and, of those three

incidents, only once - during the June 24 phone call- was Grella’s conduct specifically

directed at her. Furthermore, each of these incidents occurred because of Grella’s belief,

reasonable or not, that he had been personally slighted or that Hideout employees had

performed their jobs poorly. Grella’s verbal assaults upon various Hideout employees,

including some males, were clearly inappropriate and outside the bounds of proper

behavior. However, they were not so pervasive or regular as to create a hostile work



                                              6
environment for Trunzo on the basis of her gender.

       Moreover, we cannot find respondeat superior liability in this fact pattern.

Respondeat superior liability exists where “the defendant knew or should have known of

the harassment and failed to take prompt remedial action.” Id. at 1486 (citing Steele v.

Offshore Shipbuilding Inc., 867 F.2d 1311, 1316 (11th Cir. 1989)). Trunzo argues that

the Board members became aware of Grella’s harassment of her as early as late 1997 or

February 1998. However, the record establishes merely that they were aware that Grella

had had some confrontations over a variety of matters with Hideout employees and other

Board members, not that he was allegedly creating a hostile work environment for Trunzo

on the basis of her gender. It was not until June 24, 1999 or shortly thereafter, when

Trunzo filed a complaint with Stahler about Grella’s June 24 phone call, that the Board

learned of Grella’s alleged harassment of Trunzo. The POA Board then instructed Grella

not to have any further contact with Trunzo on July 14, 1999, and, indeed, Grella had no

contact with her between that date and June 30, 2000, the day her employment with the

Hideout ended. Thus, the Board’s action was not only prompt, it was also effective.

Nevertheless, Trunzo argues that Grella continued to “harass” her after that date through

his continued criticism of her job performance and his involvement in the Board’s

eventual decision not to offer her a four-year contract. However, the Board was not

required to expel Grella from its membership or silence him in response to her complaint.

       In affirming the District Court’s grant of summary judgment with respect to the



                                             7
Title VII claim on the basis of Trunzo’s failure to establish respondeat superior liability,

we also resolve the issue of whether the District Court was correct in granting summary

judgment with regards to the PHRA claims. Section 955(e) of the PHRA provides that it

is illegal for any employee “to aid, abet, incite, compel or coerce the doing of any act

declared by this section to be an unlawful discriminatory practice.” 43 P.S. § 955(e).

Trunzo argues that each member of the POA Board aided and abetted Grella’s

discriminatory conduct because each member knew of Grella’s harassment of her, and no

member can point to any attempt that he or she took to prevent Grella’s continued

harassment of her. However, as we pointed out above, the Board did not become aware

of Grella’s conduct until June 24, 1999, so the members’ failure to act prior to that date

cannot be deemed aiding and abetting. The Board instructed Grella not to have any

contact with Trunzo promptly after learning of Trunzo’s complaint, and Grella abided by

this instruction. The members’ failure to prevent Grella from continuing to criticize

Trunzo’s job performance after that date cannot be deemed aiding and abetting an

unlawful discriminatory practice because Grella’s post-instruction conduct did not

constitute an unlawful discriminatory practice.

       Accordingly, the motions for summary judgment were properly granted by the

District Court and we will AFFIRM.




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