Free Compendium of Unreported Decisions - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE -----------------------------------KENNETH S. MITCHELL, Plaintiff, v. WACHOVIA CORPORATION, t/a WACHOVIA SECURITIES, WACHOVIA SECURITIES, L.L.C., WACHOVIA SERVICES, INC., WACHOVIA BANK OF DELAWARE, N.A., TODD D. GAUTHIER, LYNN G. MEYER, CAROLYN J. BEAM, and DOROTHY A. DIFEBO, Defendants. -----------------------------------X : : : : : : : : : : : : : : : : : : X

Civil Action No. 06-725 (GMS)

COMPENDIUM OF UNREPORTED CASES CITED IN BRIEF IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT P. Clarkson Collins, Jr., (Bar I.D. #739) [email protected] David H. Williams (Bar I.D. #616) [email protected] James H. McMackin, III (Bar I.D. #4284) [email protected] MORRIS JAMES LLP 500 Delaware Avenue, Suite 1500 P.O. Box 2306 Wilmington, DE 19899 (302) 888-6800 David Bennet Ross (admitted pro hac vice) [email protected] Devjani Mishra (admitted pro hac vice) [email protected] Tara Smith Williams (admitted pro hac vice) [email protected] SEYFARTH SHAW LLP 620 Eighth Avenue New York, New York 10018-1405 (212) 218-5500

Dated: January 7, 2008

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CASE

TAB NO.

Arasteh v. MBNA America Bank, N.A., No. 99-254-GMS, 2000 WL 672866 (D. Del. June 12, 2001) ............................................1 Benette v. Cinemark U.S.A., Inc., 01-CV-6519L, 2003 U.S. Dist. LEXIS 22636 (S.D.N.Y. November 21, 2003) ..........................................2 Brooks v. Fiore, No. 00-803 GMS, 2001 U.S. Dist. LEXIS 16345 (D. Del. Oct. 11, 2001) .........................3 Calloway v. E.I. DuPont de Nemours & Co., No. 98-669-SLR, 2000 U.S. Dist. LEXIS 12642 (D. Del. Aug. 8, 2000) ...........................4 Carter v. Del. State Univ., No. 99-642 GMS, 2002 U.S. Dist. LEXIS 3116 (D. Del. February 27, 2002)..................................................5 Castro v. New York City Bd. of Educ., 96 Civ. 6314 (MBM), 1998 U.S. Dist. LEXIS 2863 (S.D.N.Y. Mar. 12, 1998) .....................................................6 Cimino v. Del. Dep't of Labor, No. 01-458 GMS, 2002 U.S. Dist. LEXIS 2979 (D. Del. Feb 25, 2002) ...........................7 Dixon v. Boscov's, Inc., NO. 02-1222, 2002 U.S. Dist. LEXIS 13815 (E. D. Pa. July 17, 2002)..............................8 Edwards v. Concord EFS, Inc., No. 03-599 GMS , 2004 U.S. Dist. LEXIS 13942 (D. Del. July 20, 2004).........................9 Everett v. Hosp. Billing and Collection Svcs., Ltd., No. 04-049 JJF, 2005 U.S. Dist. LEXIS 5249 (D. Del. March 31, 2005) .........................10 Fantazzi v. Temple Univ. Hosp., Inc., NO. 00-CV-4175, 2002 U.S. Dist. LEXIS 16269 (E.D. Pa. Aug. 22, 2002).....................11 Gonzalez v. Comcast Corp., No. 03-445-KAJ, 004 U.S. Dist. LEXIS 14989 (D. Del. July 30, 2004) .......................................................12 Hankins v. City of Philadelphia, No. 95-1449, 1998 U.S. Dist. LEXIS 5101 (E.D. Pa. April 9, 1998)................................13

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McBride v. Hospital of the University of Pennsylvania, NO. 99-6501, 2001 U.S. Dist. LEXIS 15115 (E.D.Pa. September 21, 2001) ...................14 McKay v. Delaware State Univ., Civ. A. No. 99-219-SLR, 2000 U.S. Dist. LEXIS 14653 (D. Del. 2000)..........................15 Parker v. Comcast Corp., No. 04-344-KAJ, 2005 U.S. Dist. LEXIS 22612 (D. Del. Oct. 5, 2005) ..........................16 Petrocelli v. DaimlerChrysler Corp., No. 04-943-KAJ , 2006 U.S. Dist. LEXIS 11972 (D. Del. 2006) .....................................16 Rajoppe v. GMAC Corp. Holding Corp., No. 05-2097, 2007 U.S. Dist. LEXIS 18956 (D. Pa. March 19, 2007) .............................18 Reap v. Cont'l Cas. Co., NO. 99-1239 (MLC), 2002 U.S. Dist. LEXIS 13845 (D. Pa. June 28, 2002) ...................19 Seldomridge v. Uni-Marts, Inc., No. 99-496 GMS, 2001 U.S. Dist. LEXIS 9491 (D. Del. July 10, 2001)..........................20 Sitkiewicz v. Initial Servs. U.S.A., 96 Civ. 8543 (DAB), 1999 U.S. Dist. LEXIS 14465 (S.D.N.Y. Sept. 17, 1999)..............21 Taylor v. Potter, NO. 04-4066, 2005 U.S. App. LEXIS 17859 (3d Cir. August 18, 2005)..........................22

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COMPENDIUM OF CASES REPORTED ON LEXIS AND WESTLAW

TAB 1

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1 of 1 DOCUMENT LISA R. ARASTEH, Plaintiff v. MBNA AMERICA BANK, N.A., Defendant. Case No. 99-254-GMS UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE 146 F. Supp. 2d 476; 2001 U.S. Dist. LEXIS 14301

June 12, 2001, Decided DISPOSITION: [**1] MBNA's motion for summary judgment on Arasteh's sex discrimination claim granted but denied as to her retaliation claim. motion for summary judgment on June 6, 2000 (D.I. 84). Arasteh timely answered (D.I. 102) and MBNA timely filed a reply brief (D.I.112). 2 Upon reviewing the record and considering the [**2] parties' submissions, the courtwill grant MBNA's motion for summary judgment on Arasteh's sex discrimination claim but deny it as to her retaliation claim since there are genuine issues of material fact regarding her transfer. 1 Arasteh's original complaint also included claims of (1) sex and national origin discrimination and (2) breach of an implied covenant of good faith and fair dealing. These claims, however, were dismissed with prejudice via stipulation. See D.I. 83 and 108. 2 After requesting and receiving leave of the court, the parties filed supplemental answering and reply briefs on the issue of retaliation (D.I. 117 and 118). Subsequently, the parties submitted ten letters to the court between November 13, 2000 and May 11, 2001 (D.I. 120-129). Although the letters purportedly only discuss new authority issued after the close of briefing, the submissions are primarily additional argument on the applicable facts and law of the case. Local Rule 7.1.2(c) states, in pertinent part, "a party may call to the Court's [sic] attention and briefly discuss pertinent cases decided after a party's final brief is filed or after oral argument" (emphasis added). Lengthy attorney argument regarding the meaning of cases and restatement of issues highlighted in the briefing is not allowed without specific leave of the court. The cumulative effect of the parties' letters is an abuse of Local Rule 7.1.2(c) and reflects a tit for tat which is largely unhelpful to the court in deciding the instant motion. Since

COUNSEL: For Plaintiff: Gary W. Aber, Esq., HEIMAN, ABER, GOLDLUST & BAKER, Wilmington, Delaware. For Defendant: Sheldon N. Sandler, Esq., Barry M. Willoughby, Esq., YOUNG, CONAWAY, STARGATT & TAYLOR, LLP, Wilmington, Delaware. JUDGES: SLEET, District Judge. OPINION BY: SLEET OPINION

[*479] AMENDED MEMORANDUM OPINION June 12, 2001 Wilmington, Delaware. SLEET, District Judge I. INTRODUCTION On April 21, 1999, Lisa R. Arasteh filed a complaint against MBNA America Bank, N.A. ("MBNA") alleging, inter alia, two violations of Title VII of the Civil Rights Act of 1964, as amended, codified at 42 U.S.C. § 2000 et seq (D.I. 1). 1 First, [*480] she claims that she was sexually harassed by her supervisor. Second, she avers that MBNA retaliated against her for complaining of discrimination and sexual harassment. MBNA filed a

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both parties improperly submitted additional material, the court will only examine the letters to the extent they conform to the literal words of Local Rule 7.1.2(c). [**3] II. STANDARD OF REVIEW "Summary judgment is appropriate under Federal Rule of Civil Procedure 56(c) when the moving party establishes that there is no genuine issue of material fact that can be resolved at trial and that the moving party is entitled to judgment as a matter of law." House v. New Castle County, 824 F. Supp. 477, 481 (D. Del. 1993) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). In evaluating whether there are any genuine issues of material fact, "materiality is determined by the substantive law that governs the case." See id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). In this inquiry, "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." See id. (internal quotations omitted). A dispute is 'genuine' only if a reasonable jury could return a verdict for the nonmoving party. See id. When considering a motion for summary judgment, the court must view all facts and inferences [**4] in the light most favorable tothe party opposing the motion. See Stephens v. Kerrigan, 122 F.3d 171, 176-77 (3d Cir. 1997). Moreover, "if the evidentiary record supports a reasonable inference that the ultimate facts may be drawn in favor of the responding party, then the moving party cannot obtain summary judgment." See House, 824 F. Supp. at 481-82 (citing In re Japanese Elec. Prod. Antitrust Litig., 723 F.2d 238, 258 (3d Cir. 1983), rev'd on other grounds, 475 U.S. 574 (1986)). Finally, at this stage of the process, "the judge's function is not himself [sic] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." See Lewis v. State of Delaware Dept. of Pub. Instruct., 948 F. Supp. 352, 357 (D. Del. 1996) (quoting Anderson, 477 U.S. at 249) (internal quotations omitted). [*481] III. BACKGROUND The record before the court is voluminous and describes actions over several years. Arasteh's removal of her sex discrimination and state law claims, however, significantly narrows the issues before the court. [**5]

Therefore, the court will confine itsstatement of facts those which are pertinent to the allegations of sexual harassment and retaliation rather than detailing the entire relationship between the parties. Even with this limitation, however, this case -- like all Title VII actions -- is intensely fact driven and requires a lengthy background recitation. Although the court has not discussed all the facts and arguments identified by the parties, it has reviewed the record to the extent necessary.
3

3 Numerous courts have found that a district court need not "comb the record" on summary judgment in order to find a genuine issue of material fact which has not otherwise been brought to its attention by the party opposing the motion. See Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001) (citing cases). Arasteh began working for MBNA in March, 1988 as an Internal Control Analyst in the Compliance Section. Through the years, she advanced through the ranks and was eventually [**6] promoted to Vice President in 1994. Although she has worked in several different departments at MBNA, she joined Industry Relations -- a newly created department -- in October, 1995. Joseph Stemmy was the first head of the department. A. Sexual Harassment In February, 1996, John Doe 4 replaced Stemmy as head of Industry Relations, making him Arasteh's manager. Arasteh claims that Doe began sexually harassing her soon after he became her manager. There is no record evidence that Arasteh contemporaneously recorded instances of sexual harassment by Doe. 5 Nevertheless, in deposition testimony Arasteh describes several instances of what she considered to be sexual harassment. 6 4 Subsequent to the publication of the court's memorandum opinion (D.I 132), MBNA requested that the court use a pseudonym to protect the privacy of the individual in question (D.I. 133). The court does not believe that Arasteh has any objection. The court will therefore refer to Arasteh's former supervisor as "John Doe" throughout its amended memorandum opinion. Aside from the use of a pseudonym, this amended memorandum opinion is identical to the court's

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previous memorandum opinion. [**7] 5 At some point prior to Doe becoming the head of Industry Relations, Arasteh began keeping a contemporaneous work diary in Farsi (she was born in Iran) regarding incidents at MBNA. Arasteh provided her attorney with a translation which included "additional comments" which were not written in her diary. According to Arasteh, her entry for August 25, 1996 literally translates as "stupid idiot". Underneath the translation, Arasteh included additional comments stating "I had a meeting with Jim . . . . He was staring at me and touching my legs and it made me very uncomfortable . . . . I usually did not note these things. To me they were immaterial and I would handle them." Although MBNA had a portion of Arasteh's notes independently translated by an interpreter, his affidavit does not include a translation of Arasteh's August 26, 1996 entry. Rather than engage in semantic or credibility arguments, the court merely notes that neither party disputes the exact translation of the August 26, 1996 entry and that Arasteh has not provided any record evidence to suggest how or why the "additional comments" are implicit in her entry. Therefore, there is no record evidence of Arasteh describing any examples of sexual harassment in her contemporaneous work diary. [**8] 6 MBNA's brief provides more specific examples of sexual harassment allegations than does Arasteh's. Compare Pl. Br. Sum. J. at 6-8 with Def. Ans. Br. Sum. J. at 10-12. In addition, the "Sexual Harassment Questionnaire" Arasteh filled out for the Equal Employment Opportunity Commission ("E.E.O.C.") includes still more alleged incidents. The only allegations not mentioned below which could be construed as sexual harassment are (1) on April 26, 1996, Doe asked Arasteh to buy flowers for his secretary and (2) an undated allegation that one night on a business trip to St. Louis, Missouri with Doe and others, Arasteh heard a knock at her hotel room door around midnight. Since Arasteh "had a feeling it was [Doe]" she did not open the door. The rest of the allegations deal more with the effects the other alleged incidents. Indeed, Arasteh cites many of these incidents (also mentioned in the "Sexual Harassment

Questionnaire") as examples of retaliation by Doe for rejecting his alleged sexual advances. See Def. Ans. Br. Sum. J. at 13. [*482] First, Arasteh claims that while on a business [**9] tripto Purchase, NY in April, 1996, Doe generally inquired about her relationship with her husband and told her that he had been married for five years. During the conversation, Arasteh testified that Doe said, in substance, "after five years, it's [sic] kind of more friendship than a marital [relationship]. 7 Arasteh stated at her deposition that she believed this exchange constituted sexual harassment. After the trip, Arasteh felt that Doe's attitude toward her changed; he would call her into his office frequently to ask her questions. At his deposition, Doe denied that he has ever had a conversation with Arasteh about her husband and specifically denied such a conversation during the April, 1996 business trip. 7 Later in her deposition, Arasteh said her response to the comment was "I made a joke out of it. I said, Well, [sic] Jim, I guess we're [Arasteh and her husband] still in the first five years . . . ." According to Arasteh, that was the end of the conversation "on that topic." Second, Arasteh [**10] claimsthat since she was the only employee in the department, Doe made her feel uncomfortable since he "kept asking me to lunch". Although she attended "work-related lunches" with Doe and association representatives, Arasteh stated that she never went to lunch alone with Doe. Arasteh also testified that Doe also told her that she "should learn to socialize because this is a marketing environment and you have to be friendly with people." Doe does not appear to dispute that he asked her to lunch or made a comment about her socializing. Third, Arasteh testified that Doe rubbed her legs with his legs under the table at an unspecified number of meetings. About six months after Doe's arrival in Industry Relations, Arasteh stated that she began arriving at meetings late so as to avoid having to sit next to Doe. 8 Despite employing this avoidance tactic, 9 she would sometimes wind up sitting next to Doe, but it "didn't [sic] happen often." Although Arasteh testified that Doe rubbed her legs on one occasion "in 1997," it appears that the rest of the incidents occurred between May and December, 1996. Arasteh also stated that Doe would stare at her chest and breasts, making her feel uncomfortable.

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[**11] The record is not clear when these incidents occurred, but it appears from Arasteh's deposition that these incidents occurred around the same time as the leg rubbing during meetings. 10 Arasteh testified [*483] that she did not remember if Doe stared at her breasts in 1997. 8 Although Arasteh does not give a date, Doe began working in Industry Relations in February, 1996. Based on Arasteh's testimony, it is logical to assume that she did not begin her avoidance strategy until at least August, 1996. 9 Arasteh's co-worker, Eric R. Nelson, stated that Arasteh was often the last to arrive at meetings. Arasteh testified that her "strategy" was to wait outside the meeting room until everyone else was seated and then enter. 10 At his deposition, Nelson testified that "Jim had a tendency to stare at [Arasteh] for whatever reason, when we would be in meetings, and I have no idea why." He characterized Doe staring as opposed to "just letting his eyes wander the room." Nelson also stated that Arasteh once told him that she had to sit next to Doe in a meeting, and that he had rubbed her leg "continually". Nelson does not supply the date of the incident or the conversation. [**12] Fourth, Nelson testified that Doe indirectly asked him if Arasteh was a lesbian. At his deposition, Nelson stated, "he [Doe] had made kind of a, I thought it was a rude comment outside the men's room in the hallway . . . he said something that he didn't [sic] know what was wrong with . . . [Arasteh], that he thought she might be a lesbian." Although Nelson could not recall the specific context of the comment, he stated "it was a kind of a guy type of a thing" and the conversation was generally about women in the office. Arasteh was not present during the discussion, but Nelson told her about it afterwards since he thought it unusual. Nelson does not provide a date of this incident. The record also contains several other vague and undated references to alleged sexual harassment. Arasteh testified that Doe "would talk about the color of my clothes" and that certain outfits looked good on her. Although Doe did not specifically deny each and every allegation of sexual harassment, he stated at his deposition that her "whole harassment suit" was untrue. Arasteh stated that she spoke to Doe about his sexual harassment in June, 1996. According to Arasteh, after

their conversationDoe's [**13] sexual harassment turned into "abusive treatment." Arasteh claims this treatment manifested itself in several ways. First, Doe told her to do things that "belittled" her in meetings. Second, he suggested that she not move to a different department since she would get promoted faster in Industry Relations (she never got promoted). Third, in her 1997 "year end" evaluation, Doe "downgraded" her overall performance level from the "superior" rating she received in her 1996 year end evaluation to "excellent". Although in absolute terms this may be lower, it is not clear what impact the June, 1996 conversation had on her evaluation; a longer and more complete look at her reviews suggest an up and down pattern. In her "mid year" 1997 "Officer Goal Assessment," Arasteh received two "exceeded" ratings and two "achieved" ratings in the "Results and Assessments" category and three "superior" and six "excellent" ratings in the "Management Factors" category. Her overall performance level was "achieved." In her 1997 year end review, Arasteh received three "exceeded" and one "achieved" ratings in the "Results and Assessments Category" and one "superior," seven "exceeded," and one "good" inthe "Management [**14] Factors Category". Her overall performance level was "exceeded." In 1996, Arasteh received a "excellent" for overall performance at her mid year and an "superior" at year end. Although it is true that Arasteh's overall evaluation went from "superior" at the end of 1996 to "exceeded" at the end of 1997, her interim performance evaluations (mid 1996 and mid 1997) were lower than her year end evaluations. Therefore, it is not clear that Arasteh's claimed confrontation with Doe in June, 1996 was the reason for the lower review at the end of 1997. Fourth, Roszowski told Arasteh to attend an "Elements in Writing Class" even though she had preciously attended it and had received high evaluations on her written communications skills. While directing Arasteh to attend a "basic" class, he denied her request to attend a management level seminar. 11 11 Although Arasteh states Roszowski's actions are examples of retaliating against her for her June, 1996 conversation, she discusses them in her deposition in the context of gender discrimination and her retaliation claims. See note 6, supra. [**15] [*484] There is a bit of a dispute over

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whether Arasteh properly utilized MBNA's sexual harassment policies. The record does indicate, however, that during the time of the alleged incidents Arasteh did not file a formal grievance with MBNA. At her deposition, Arasteh testified although she regarded Doe's 'lesbian' query to Nelson as inappropriate, she did not file a complaint since "you have to keep in mind that I am a vice-president of the company, it wouldn't have looked appropriate for me to walk into personnel every time Mr. [Doe] touched my legs or made comments like this." At another point in her deposition, Arasteh stated she did not talk to the personnel department because she "did not feel it would be appropriate at my level, as an officer of the company, to go to a personnel office. I didn't [sic] want to end my employment at MBNA. I wanted to address the problems that I had." Additionally, Arasteh claims to have had a general conversation with Peter A. Dimsey, Doe's superior, regarding the harassment. She did not, however, testify that she informed Dimsey of specific times or incidents. Finally, although she sent a letter to senior management at MBNA detailing [**16] various instancesof alleged discrimination, she did not expressly complain about sexual harassment by Doe. The parties spend much time discussing Arasteh's job performance and attendance in Industry Relations during 1997. Arasteh and MBNA read different motivations in requiring her to sign out and having MBNA staff keep track of her whereabouts. MBNA attributes Arasteh's actions in 1997 to "signs of psychic impairment." Arasteh vehemently denies that any psychiatric or medical problems interfered with her work and states that MBNA is attempting to smear her. Although the parties dispute the cause, it is clear that Arasteh had several important issues in her life that either distracted her at work or caused her to be absent. For example, her father had medical problems that required her attention and she has medical problems that necessitated enrollment at a MBNA physical therapy facility. Additionally, she had to care for her young children. Regardless of whether MBNA's "precepts" regarded these circumstances as legitimate reasons for not being at work, both parties appear not to dispute that Arasteh was occasionally out of her office during regular business hours. Finally, although [**17] the parties contestthe extent and the reasons for the absences, there is no disagreement that there were several of them.

B. Retaliation On January 8, 1998, Arasteh sent MBNA Senior Vice Chairman Lance Weaver a personal and confidential memorandum through interoffice mail detailing both general and specific events from 1995 until approximately August, 1997 that demonstrate that she was treated "unfairly" in violation of MBNA "precepts." The memorandum's stated intent was to "provide [Weaver] with some insight into the current environment." At the conclusion of the memorandum, Arasteh states "I also recommend that you share this information with our Legal [sic] department as I feel there are situations which deviates [sic] from various Labor Law [sic] requirements." Although Arasteh showed Nelson a copy of the letter and he was with her when she put it in the mail, Weaver claims that he never received it. 12 Indeed, he testified at his deposition that he was not [*485] aware of the memorandum until after the instant lawsuit was filed. 13 12 At his deposition, Weaver stated that he was generally familiar with the contents of Arasteh's memorandum and his impression was "that I certainly would have remembered receiving it." [**18] 13 Although MBNA's Vice President in charge of Mail Services could did not specifically testify regarding Arasteh's memorandum to Weaver, he stated that mail is generally reported as not received either because it was never mailed or it is received but forgotten. Shortly after Arasteh sent her memorandum to Weaver, her former attorney sent MBNA's Chief Executive Officer, Charles Cawley, a letter on Arasteh's behalf on January 21, 1998. Like the original complaint filed with the court, the letter describes broader allegations than the ones currently asserted in this case; it focuses on sex and national origin discrimination. The letter, however, does not mention sexual harassment explicitly. 14 The letter concludes, "while she does not wish to make the reason for her leaving public, my client [Arasteh] has given me the authority to file a complaint with the State Labor Board and the Equal Employment Opportunity Commission Office. To bypass these options, my client has also given me the authority to attempt to negotiate a settlement with MBNA, [sic] that would place her as close to the positionshe [**19] would be in if MBNA's discriminatory practices had never

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existed." 14 The only allegation in the letter that could be taken as a complaint about sexual harassment is an alleged comment by Doe that "it is the wife's responsibility to take care of 'home' matters." In context, however, the court does not find this statement to be evidence of sexual harassment. Interestingly, in the letter there are allegations that Arasteh was compelled to "physically deliver[] flowers to my manager's [Doe's] secretary" and made to attend elementary writing courses while not being allowed to participate in other courses. These are cited as examples of discrimination. In her brief, however, Arasteh contends that these incidents are examples of Doe's retaliation for Arasteh complaining to him about his sexual harassment. Compare Cawley Letter, App. Def. Br. Opp. Sum. J. at B-446 with Def. Ans. Br. Opp. Sum. J. at 13; see also note 6, supra. Upon reading the January 21 letter, Cawley gave it to Weaver -- whowas [**20] in Cawley's office at the time "just by coincidence" -- to read since he was Arasteh's "first removed supervisor" (Doe was her direct supervisor). After questioning Weaver "a little bit" about Arasteh, Cawley called Ken Boehl to his office. Boehl was involved in the discussion because of his background and his familiarity with Arasteh -- he was her former supervisor. Although he could not remember the specifics of the meeting, Weaver stated that Cawley was "confused and frustrated" with the letter and expressed a desire to look into the allegations. According to Weaver, Cawley did not seem concerned about Arasteh's well being. Basically, the meeting consisted of Cawley asking Weaver and Boehl questions about Arasteh. Apparently, Doe was not present since he was "accused of doing some things that were wrong." According to Weaver, the January 21 letter "was turned over immediately to our legal department and, beyond that . . . [he] was not involved in the investigation." Weaver stated that he believed the reason for this was that generally "[once] someone goes to a lawyer, it is turned over to the legal department." 15 Weaver is not aware of any further discussions about theletter [**21] or Arasteh's allegations after the matter was referred to the legal department. Furthermore, he testified that he [*486] does not know of any internal investigation into Arasteh's complaints or any attempt by

MBNA to counsel her in any way. To Weaver, the reason for this stance was that once someone files a complaint against MBNA, they are treated differently than those who do not file a formal complaint (either in court or with an administrative agency). 15 Arasteh attacks Weaver's credibility by pointing out that Weaver spoke to Nelson subsequent to his filing of a complaint against MBNA. Weaver stated that at the time he spoke to Nelson, he was "not aware of any lawsuit" or that he had filed a charge with the E.E.O.C. This point, however, is immaterial to the court's resolution of the issues at this stage in the case since it cannot make credibility determinations. On or about January 26, 1998, Dimsey replaced Doe as head of Industry Relations, thereby becoming Arasteh's direct supervisor. The record [**22] is silentas to the reason for this shift but there is no evidence that the personnel move was in any way related to Arasteh or her allegations. Upon becoming the head of Industry Relations, Doe and Dimsey had "take over" discussions in about how the department ran. During the course of these conversations, Dimsey stated Doe told him that "there was some litigation between the company and . . . Arasteh and that since it didn't [sic] involve me nobody was going to -- it had been suggested I didn't [sic] become aware of any more details than that." This was the only conversation Doe and Dimsey had regarding Arasteh's complaints. Dimsey also spoke with other MBNA personnel about Arasteh's complaint and was told "to approach this with a totally open mind and not be involved in that [the dispute]." 16 Other than these conversations, Dimsey did not know anything else about Arasteh's complaint or dealings with the company. To him, the matter was between Arasteh's and MBNA's attorneys. 16 Dimsey testified that he spoke with "Mr. Spartin". Elsewhere, the record indicates that Mr. Spartin oversaw Dimsey in some capacity. [**23] On February 2, 1998, MBNA's outside counsel sent a letter in response to the January 21 letter to Cawley. The letter states: I have completed my investigation into the allegations contained in your letter of January 21, 1998. In sum, please be advised that there has been no

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confirmation of any of the claims of discrimination and harassment . . . . What I have learned is that your client is a competent performer who has resisted MBNA's good faith efforts to help her overcome her shortcomings that were holding her back from achieving even more. The assignment about which she is apparently unhappy was designed to give her an opportunity to improve in those areas where she is weakest. Arasteh contends that the statements in the letter contradict Boehl's testimony to the effect that when Arasteh left his department she was "improving". Furthermore, Arasteh points to Doe's statement that as of January, 1998 "there was noting prohibiting . . . [Arasteh] from getting promoted". 17 Contrary to Arasteh's assertions, Doe's 1997 year end review states that there were areas that "needed improving" and that she needed to "step back at times and evaluate priorities." Althoughhis [**24] review does not mention her opportunity for advancement at MBNA, in a November 26, 1997 file memorandum, Doe stated he felt "[Arasteh's] results were not overly exceptional and did not warrant a promotion at this time . . . [but] this did not preclude her from a possible promotion in 1998 . . . ." 17 At his deposition, Arasteh's counsel asked Doe if Arasteh had any "shortcomings." Although Doe stated he did not know what Arasteh's counsel meant by "shortcomings," he testified that he was "not aware of any" in January, 1998. The parties dispute the propriety of Arasteh's conduct in Industry Relations during Dimsey's tenure and the reasons for her behavior. MBNA contends that Arasteh [*487] took frequent breaks and left work for several appointments, including visits to the physical therapist, her doctor and her psychiatrist, as well as attending to her ailing father. Although Arasteh's brief does not specifically separate her attendance issues under Doe and Dimsey, she states that in 1998 she worked [**25] more hoursin Industry Relations than she was required. Additionally, the parties contest whether Arasteh was present in the office when Dimsey was traveling for business. Again, the court will not detail each party's allegations and the facts supporting them. In order to resolve the instant motion, it is sufficient to note that during this time Arasteh was out of the office for

various reasons and that Dimsey believed that it adversely affected the performance of the department. 18 Additionally, Dimsey testified that "around the end of the first quarter," he and Arasteh discussed "how things were going." Although Arasteh prepared a list of goals, he disagreed with her assessment and he "indicated that there were some things that needed attending to." 18 In his deposition, Dimsey stated, "all I know is when I called in and tried to reach her and questions came in and they tried to reach her, that there were many occasions where she couldn't [sic] be located." On April 29, 1998, Arasteh and Dimsey went to lunch. [**26] Arastehshowed him a copy of the memorandum she had written to Weaver which detailed her complaints against MBNA. Arasteh told Dimsey that she was "extremely angry with Mr. Boehl for his treatment of her and she had some complaints against Mr. [Doe]." Dimsey replied that since Arasteh had decided to bring a legal action, she needed to talk to "the lawyers" rather than to him. During lunch, Dimsey commented that he was surprised that Arasteh still wanted to work at MBNA, given her "strong negative feelings" about the company. According to Dimsey, Arasteh responded by stating, in substance, that: she was only staying with the company because it was a better place to sue . . . from and she had no interest in doing a good job, she had no interest in supporting officer goals, and . . . that she was sorry for me because I was put in this position, which I took [to mean] that I was going to have to put up with her not being particularly motivated because that's [sic] the way she wanted it to be. Arasteh does not dispute these statements. Instead, Arasteh confirmed that she was not leaving MBNA since she believed that she had not done anything wrong and that staying at [**27] the companywould put her in a better position to "focus on . . . [her] case". As her immediate supervisor, Dimsey prepared a 1998 mid year evaluation of Arasteh. 19 Neither party disputes that the evaluation was dramatically lower than her previous one. 20 In the "Manager's Comments" section of Arasteh's evaluation, Dimsey wrote:

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[Arasteh] has been in Industry Relations for three years and should be able to do the job very well. However, she has decided to do the minimum she believes is necessary to do the job. She shows little enthusiasm, or desire to do things well. She tries to shift responsibility to others, rather than assuming it herself. She initiates very little on her own. Although she knows, and I have [*488] made it clear, that it is important someone be in the office or readily available, she takes considerable time off to handle personal matters during business hours. She should try harder to schedule her absences at other times. Breaks for lunch and coffee tend to be long. As a result, she is not able to adequately support the Industry Relations Department and assist me when I am out of the office. Her attitude and absence from work place [sic] contributes [**28] to projects notgetting done properly or on time. She is not receptive to direction. Her manner of treating . . . my Executive Assistant is on occasion insensitive and unprofessional. She does not meet the expectations of an officer of MBNA. In the past month, she has shown much more diligence and follow through [sic] in completing assignments. She can clearly do the job if she wants to, but she must decide to do it on a continuing basis. To perform better just prior to an evaluation is not enough. Prior to delivering his evaluation to Arasteh on July 31, 1998, Dimsey spoke with Doe and the legal department. 21 Based on these conversations, Dimsey decided to have a witness present at Arasteh's evaluation and a security guard in the area who would, if necessary, escort her "out of the area". 22 Arasteh neither saw -- nor did Dimsey utilize -- the security guard. White testified that she did not recall Arasteh raising her voice or otherwise acting inappropriately. Arasteh signed the evaluation. She made no written comments and there was no discussion between Arasteh and Dimsey about the evaluation at that time or subsequently.

19 The evaluation covered the period from January to June, 1998. [**29] 20 Arasteh received five "not achieved" ratings in the "Results and Assessments" category. In the "Management Factors" category, Arasteh received one "satisfactory" ranking and nine "unsatisfactory" rankings. Attached to the "Officer Global Assessment" form was a brief reason for each ranking. 21 Dimsey stated that he decided to speak to Doe "because I was surprised that the performance of . . . [Arasteh] was in my view so far from what I would have expected that I asked him what his perceptions were when he worked with her in terms of her performance. And he told me about the rating he had given her [in 1997] which apparently displeased her and the emotional reaction to the conversation." After giving Arasteh her 1997 year end evaluation, Doe wrote a file memorandum detailing what he felt was unprofessional conduct by Arasteh during the evaluation. See supra. 22 The third party present at the evaluation, Marsha M. White of the Personnel department, stated that she had never been at an evaluation where a security guard was stationed nearby. At some point during the summerof [**30] 1998, Arasteh was transferred from Industry Relations to the Quality Assurance department. MBNA characterizes the move as lateral while Arasteh contends it was "organizationally a demotion" since she was "further removed" from senior management and her assignments were "less significant". Arasteh's new supervisor, Cynthia Rydel, testified that she did not ask for a new employee but that the department was "backlogged." Further, the backlog related assignments involved data input work, which was not something a vice president would normally do. Arasteh testified that Rydel told her she did not have a vice president position open at the time but that she was "just told to give me projects." Arasteh maintains that an insurance project which "excited her" was taken away after one week. When she asked why the project was stopped, Rydel told her that a change in management in the insurance department meant the project was put on hold. 23 23 The record does not indicate whether the project continued or whether Arasteh resumed

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working on it. [**31] There is scant evidence in the record regarding the impact of Arasteh's transfer. Although the parties contest whether she received a smaller bonus or salary raise in response to Dimsey's evaluation, there is [*489] no record evidence to suggest that Arasteh's salary was reduced or that there was any change to her bonus or salary after her transfer to Quality Assurance. Indeed, Arasteh maintained her classification as a vice president. Although the record is less than clear, it suggests that it is "possible [but] not likely" that Arasteh will ever receive a promotion. Weaver testified on this issue at his deposition. Both parties overstate Weaver's testimony. Arasteh characterizes Weaver's testimony as "it is possible . . . [but] unlikely that she [Arasteh] will be promoted in the remainder of her career." MBNA, in contrast, argues that Weaver offers nothing more than a personal opinion that is nothing more than "speculation". At his deposition, Weaver actually stated that he was not aware of any executive vice presidents "in the company" who have sued MBNA. 24 At a certain point in time, however, Arasteh was "happy" with her new responsibilities in Quality Assurance. [**32] 25 24 Weaver's deposition errata sheet slightly clarifies this statement by averring that he understood the question to be whether Arasteh could be promoted after suing MBNA. In addition to reiterating his testimony from the deposition, Weaver stated that he was "just speculating about her future prospects". Weaver did not specifically testify about Arasteh's prospects for promotion after her transfer to Quality Assurance. 25 At her deposition, Arasteh stated that after her positive 1999 evaluation she received additional responsibilities. She was allowed to design her own goals and was put in charge of two major systems -- the group exclusions list system and the suppression system -- which she viewed as better responsibilities than she previously had. Arasteh also went on disability leave for approximately four months beginning in early 1999. MBNA gave her 100% of her compensation while she was out. Upon her return, nothing changed -- "it was like picking up from where I had left off." On September 21, 1998, Arasteh [**33] sent Dimsey a letter which responded to the criticisms

articulated in his 1998 mid year evaluation. In the letter, Arasteh stated that she had documentation to refute Dimsey's negative comments and that she believed that the evaluation was in retaliation for her filing a charge with the E.E.O.C. The parties dispute the purpose of the letter. At the bottom of each page of the letter, Arasteh stated "Information presented in this package is deemed 'CONFIDENTIAL' [sic] and should only be used in relationto my allegations against my employer, MBNA American Bank, N.A." Although the letter was addressed to Dimsey, the letter indicates that copies were sent to Cawley, Weaver, Boehl, John Scheflen (MBNA's General Counsel), Arasteh's attorney and the E.E.O.C. On October 7, 1998, White sent Arasteh a letter stating that Dimsey was out of the country but he would provide her with an "appropriate response" when he returned. 26 White testified that someone at MBNA told her to send the letter and what information to include. 26 It appears that Arasteh forwarded her copy of White's letter to her attorney. At the bottom of the letter, there is a handwritten note from Arasteh dated October 13, 1998, which states ". . . FYI I just rec'd [sic] this memo from MBNA." [**34] Upon his return, Dimsey wrote a response to Arasteh's letter and submitted it to MBNA's legal department rather than passing it on to either Arasteh or his manager. Dimsey stated that although this was not his usual procedure, since "there was litigation in process, I believe [sic] that was the correct thing to do." Although no one specifically told him to submit his comments to the legal department, Dimsey had, on a prior occasion, been instructed that he was to inform the legal department of all issues and complaints related to Arasteh. After sending his response to the legal department, Dimsey [*490] never communicated with Arasteh, either verbally or in writing, regarding his evaluation. Arasteh never received a written response to her letter rebutting Dimsey's "negative comments" from anyone at MBNA. Arasteh filed her charge of discrimination against MBNA with the E.E.O.C. on May 12, 1998. She appended a long attachment which appears to be comprised of excerpts of her memorandum to Weaver and a "Sexual Harassment Questionnaire". The E.E.O.C. issued a right to sue letter on January 21, 1999, stating that it was "unable to conclude that the information obtained establishes [**35] violations of the statutes."

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Arasteh timely filed this action. It appears from the record that as of approximately May 11, 2000, Arasteh continued to work at MBNA in the "communications area." IV. DISCUSSION Although the factual background is somewhat involved thecourt's analysis is relatively straightforward. Arasteh's sexual harassment claim cannot succeed since (1) she is barred, on statute of limitations grounds, from asserting her allegations and (2) her allegations fail substantively. Nevertheless, the presence of a genuine issue of material fact prevents the court from granting MBNA summary judgment on Arasteh's retaliation claim since a reasonable jury could find for her. A. Sexual Harassment In its motion, MBNA claims that it is entitled to summary judgment both on procedural and substantive grounds. The court agrees with MBNA that Arasteh's allegations of sex discrimination are both time-barred and fail to satisfy her prima facie burden. The court will, therefore, enter judgment in MBNA's favor on this claim. The court will discuss these issues in turn. 1. Procedural Grounds A claim of employment discrimination under Title VII must be filed with [**36] the E.E.O.C. within 180 days of the last alleged discriminatory act. See 42 U.S.C. § 2000e-5(e). There is an exception, however, to the 180 day E.E.O.C. filing period. If a state elects to defer to the E.E.O.C., then the 300 day statute of limitationsperiod becomes applicable for claims filed with that federal agency. See Seredinski v. Clifton Precision Products, Co., 776 F.2d 56, 61 (3d Cir. 1985) (quoting 42 U.S.C. § 2000e-5(d)). Delaware allows claimants who file either with the E.E.O.C. or the Delaware Department of Labor to rely on the 300 day statute of limitations. See 29 C.F.R. § 1601.13(a)(3)(iii). Since Arasteh filed a claim with the E.E.O.C., she is entitled (and limited) to pursuing claims of sexual harassment which occurred no more than 300 days prior to the date of her filing. See Davis v. Calgon Corp., 627 F.2d 674, 677 (3d Cir. 1980) (citing Bean v. Crocker Nat'l Bank, 600 F.2d 754, 757-59 (9th Cir. 1979)). Arasteh filed her charge of discrimination with the E.E.O.C. on May 12, 1998. MBNA argues that she may

not assert a claim [**37] for any incident alleged to have occurred before July 17, 1997 -- 300 days before the May 12 filing date. In response to this contention, Arasteh asserts that the 'continuing violation' doctrine allows her to include incidents prior to July 17, 1997. As the Third Circuit stated, "thecontinuing violation theory allows a plaintiff [to] pursue a Title VII claim for discriminatory conduct that began prior to the filing period if . . . [she] can demonstrate that the act is part of an ongoing practice or pattern of discrimination." Rush v. Scott Specialty Gases, Inc. v. Philadelphia Elec. Co., 113 F.3d 476, 481 (3d Cir. 1997) (internal quotations omitted). [*491] To take advantage of this theory, however, Arasteh must demonstrate that Doe committed at least one act of sexual harassment within the 300 day filing window. See id. Moreover, the harassment cannot be an isolated or sporadic act of discrimination; it must be part of a continuing pattern. See id. The key factors for the court are (1) the similarity of the subject matter of the alleged acts of discrimination before and after the relevant date, (2) the frequency and/or the occurrence of the alleged [**38] acts, and (3) the degree of permanence "which should trigger an employee's awareness of and duty to assert . . . [her] rights." See id. at 481-82; see also Parker v. Delaware Dep't of Pub. Safety, 11 F. Supp. 2d 467, 473 (D. Del. 1998) (citing Rush and othercases). Therefore, the crucial questions before the court are (1) whether the record reveals that Doe sexually harassed Arasteh on or after July 17, 1997, and (2) whether the incident was part of a pattern of sexual harassment that began before that date. If Arasteh is able to adduce evidence to answer both of these questions affirmatively, she can recover damages for the entire violation, and more important, the 300 day filing period will not act as a bar. Arasteh's brief does little more than offer the conclusory argument that the continuing violation theory applies to her case. In support of her position, Arasteh merely states that Doe began rubbing her legs and staring at her breasts "between March and June 1996 . . . and continued . . . by the time she received her end of the year 1996 evaluation." 27 Arasteh also makes two vague allegations that (1) the harassment was continuous between [**39] June and December 1996 and (2) "it continued into 1997." As noted above, however, the 1996 incidents are irrelevant since they only apply once a continuing violation is established. Arasteh neither states when in 1997 Doe allegedly sexually harassed her or

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describes the incident(s) with anyparticularity. 28 Since the court must construe any ambiguities in the record in Arasteh's favor, the court will assume -- without deciding -- that whatever happened in 1997 occurred after the 17th of July. 27 In her brief, Arasteh argues that Nelson's testimony establishes that he witnessed Doe rubbing her leg during a meeting. Regardless of whether Arasteh accurately characterizes Nelson's testimony, he did not state when the conversation or the meeting occurred. 28 Arasteh states that she does not remember if Doe stared at her breasts in 1997. She explains her failure to make a note of the 1997 incident(s) as an attempt "to stay professional." Additionally, it appears that any incident of Doe rubbing Arasteh's legs may have happened well before July 17, 1997. At her deposition, Arasteh stated that she did not have any notes about such a 1997 incident since "[they occurred] during 1996, and I didn't make notes about things like that at the time." See supra (describing Arasteh's reasoning for not reporting alleged sexual harassment). [**40] Determining the character of the allegations, however, is a different matter. Arasteh's papers filed in opposition to the instant motion contain little description of the incident(s). The court will, therefore, examine the record in an attempt to decipher Arasteh's vague allegations of harassment in 1997. Arasteh filled out a "Charge Questionnaire" on April 24, 1998. Although she alleged other discriminatory acts aside from sexual harassment, she stated that the most recent alleged harm occurred on November 19, 1997. 29 Elsewhere [*492] in the record, a "Sexual Harassment Questionnaire" describes an incident on November 19, 1997, in which Doe yelled at her and directed her to sign out when she left the department. Arasteh stated that the consequence of this incident was that Doe and his secretary began losing respect for her. In addition to the incident on November 19, 1997, the addendum to the E.E.O.C. charge also includes two allegations concerning incidents after July 17, 1997. The allegations are that (1) on November 7, 1997, Doe paged her, used an "insulting tone" in front of Arasteh's "peers," asked her where she was and told her she should be at the office to discuss [**41] an office matter, and (2) on November 4 and 13, 1997, Arasteh attended a basic writing course but was not invited to an upper level seminar on December 10, 1997.

29 Although the Charge Questionnaire states "see attached sheets for details," Arasteh did not include additional sheets in her papers. See Pl. Ans. Br. Sum. J, App. Vol. 2, at B-377. MBNA's materials include a "Sexual Harassment Questionnaire" dated April 19, 1998 which may or may not be the relevant addendum. See Def. Br. Sum. J., App. Vol. 2, at A-307-51. Given the uncertainty, the court is unsure whether this document was attached to the E.E.O.C. Charge of Discrimination or the Charge Questionnaire. Moreover, the document in question appears to be little more than excerpts of the letter Arasteh sent to Weaver in January, 1998. Despite the difficulties in characterizing these allegations as acts of sexual harassment, the court consider whether the interaction on November 19, 1997 (or other incidents in 1997) was part of a pattern or practice [**42] of sexual harassmentthat began earlier. An examination of all the above described incidents which allegedly occurred after July 17, 1997 reveals that none of them, even taken together, are sufficient to find a continuing violation. The post July 17, 1997 incidents are not similar to the other earlier incidents (and are unrelated to each other). In November and December, 1997, Doe chastised Arasteh for being late, instructed her to sign out of the office, and required her to attend certain seminars. These acts are completely different, both in terms of subject matter and motivation, than inquiring about Arasteh's marriage, discussing with a co-worker whether Arasteh was a lesbian, asking her to lunch, staring at Arasteh's chest or breasts and rubbing her legs under the table at meetings. Although the alleged pre July 17, 1997 incidents did not occur within a work context or involved non-work related issues, the later situations were entirely employment related. Indeed, Arasteh concedes as much in her brief by identifying several of the post July 17, 1997 incidents as examples of Doe's retaliation rather than sexual harassment. See Pl. Ans. Br. Sum. J., at 13. Affording Arasteh [**43] every inference, thecourt concludes that, at best, the post July 17, 1997 incidents are retaliation for earlier charges of sexual harassment, not harassment itself. 30 30 At her deposition, Arasteh stated that the main problem in 1997 was that Doe "made my life miserable" and that most of the harassment

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was in 1996. Interestingly, Arasteh's contention that Doe's harassment was part of a pattern that began in 1996, and "continued into 1997," serves to undermine her reliance on the continuing violation theory. More specifically, given Arasteh's comments regarding the frequency and the tenor of the alleged incidents, there is no dispute that she was aware of the harassment well before July 17, 1997, but merely chose not to file until much later. The continuing violation doctrine was not developed to allow plaintiffs unlimited time to file a discrimination claim. See Parker, 11 F. Supp. 2d at 473 (citing cases). The purpose of the doctrine is to afford a plaintiff time to "appreciate that [she [**44] is] being discriminatedagainst . . . [by] living through a series of discriminatory acts and is thereby able to perceive the overall discriminatory pattern." See id. According to Arasteh's own testimony, the bulk of the harassment took place in 1996. See note [*493] 30, supra. If the harassment was as severe and pervasive as she alleges, Arasteh should have filed a complaint with the E.E.O.C. at the beginning of 1997, at the absolute latest. See Parker, 11 F. Supp. 2d at 473 (citing Stewart v. CPC International, Inc., 679 F.2d 117, 120 (7th Cir. 1982) (stating that "a violation of Title VII occurs and triggers the time limit for filing a charge when the employee knew or should have known that he or she was discriminated against") (internal citations and quotations omitted). Under any scenario, the court cannot transform Arasteh's statement that Doe's sexual harassment "continued into 1997" into the quantity or quality of evidence that establishes that there was at least one discriminatory act within the relevant 300 day period. Since Arasteh cannot overcome this procedural hurdle, the court must enter judgment in favor of MBNA [**45] on her sexual harassment claim. 2. Substantive Grounds Even if the court were to excuse Arasteh's procedural defects, her sexual harassment claim must still fail. Her claim is predicated upon the alleged existence of a hostile work environment. 31 The determination of whether a hostile environment exists is made on a case-by-case basis after considering the totality of the circumstances. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1482-84 (3d Cir. 1990); see also 29 C.F.R. § 1604.11(b). The Andrews court announced five elements plaintiffs

must meet to assert such claims: (1) the employee suffered intentional discrimination because of her sex, (2) the pervasiveness and regularity of the discrimination, 32 (3) the discrimination detrimentally affected the plaintiff, (4) the discrimination would detrimentally affect a reasonable person of the same sex in the same position and (5) the existence of respondeat superior liability. See Andrews, 895 F.2d at 1482; see also Calloway v. E.I. duPont de Nemours and Co., 2000 U.S. Dist. LEXIS 12642, *11, C.A. 98-66- SLR, 2000 WL 1251909, [**46] at *3-*4 (D. Del. Aug. 8, 2000). The court finds that the incidents Arastehdescribes fail to meet the first two elements of the Andrews test. Since she cannot satisfy these two "essential elements" of her prima facie case, the court need not address the other three parts of the Andrews test. See id. at *7 & n.11. 31 The other type of sexual harassment claim -quid pro quo harassment -- is not present in this case. 32 The Andrews court stated the harassment must be severe and pervasive. See infra for discussion on whether this test is correct in light of Supreme Court precedent. a. Arasteh's Discrimination Claims Are Not Gender Based Sexual harassment is not limited to explicit sexual advances or remarks. See Andrews, 895 F.2d at 1485 (stating "to constitute impermissible discrimination, the offensive conduct is not necessarily required to include sexual overtones in every instance or that each incident be sufficiently severe to detrimentally affect a female [**47] employee"). Gender, however, must be a substantial factor in the discrimination; Arasteh must show that she would not have been treated the same way if she were a man. See id.; see also Calloway, 2000 U.S. Dist. LEXIS 12642, 2000 WL 1251909, at *4 (citing cases). Such a determination is obvious where the allegations involve sexual propositions, innuendo, pornographic materials or sexually derogatory language. See Andrews, 895 F.2d at 1482, n.3. Nevertheless, the "mere utterance of an epithet, joke, or inappropriate taunt that may cause offense" is not actionable under Title VII. See Weston v. Pennsylvania, 251 F.3d 420, 428, 2001 WL 539470, at *5 (3d Cir. [*494] 2001); see also Breeden v. Clark Cty. Sch. Dist., 532 U.S. 268, 121 S. Ct. 1508, 1510, 149 L. Ed. 2d 509 (per curiam); Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81-82, 140

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L. Ed. 2d 201, 118 S. Ct. 998 (1998). Where the claims are not sexual by nature, the court must engage in an intensively factual analysis. See Andrews, 895 F.2d at 1482 & n.3. In this case, most of Arasteh's allegations of sexual harassment [**48] are not "sexual by nature." Doe's inquiry regarding the state of Arasteh's marriage andthe recounting of his was general and Arasteh did not appear to take offense at the time. 33 His lunch invitation and his statement that Arasteh should socialize more appear to be work related. 34 The fact that Doe required Arasteh to sign in and out of the department and denied of her request to attend one seminar while making her attend a different one will not support a finding that these acts were born of gender related animus. Certainly, Arasteh has not adduced any evidence in the record to the contrary. Giving every inference to Arasteh, the only allegation which could conceivably be based in gender-related animus is Doe's alleged query to Nelson regarding Arasteh's sexual orientation. 35 Considering the totality of the circumstances, the other allegations are both too vague and not sufficiently sexual in nature to allow the court to find that they were motivated by perceptions about womanhood or gender stereotypes of appropriate female behavior. See Andrews, 895 F.2d at 1483-83. 33 In her deposition, Arasteh stated that she made a joking response to Rozkowski's alleged statement. [**49] 34 Indeed, Doe suggested Arasteh socialize more since she was in a marketing environment. Other courts have rejected similar comments as evidence of gender based animus. See Calloway, 2000 U.S. Dist. LEXIS 12642, *17, 2000 WL 1251909 at *5 & n.8 (finding supervisor's statement that plaintiff should be "more social" did not raise triable issue even where plaintiff interpreted comment to mean that she should "flirt" with her male co-workers). 35 The court notes that Nelson's testimony did not establish the context or the motivation behind the alleged question. In the absence of any motivation ascribed to Doe for asking the question, the court assumes -- without deciding -that it had some gender-related animus. The isolated question, however, is not enough to permit Arasteh's claim to proceed. See infra at

section IVA(2)(b). b. Arasteh's Claimed Sexual Harassment Was not Pervasive or Regular As an initial matter, the parties dispute whether Arasteh must demonstrate both the frequency and the severity of the sexual harassment. [**50] The Supreme Court has recently reaffirmed its position that "sexualharassment is actionable under Title VII only if it is so severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment." 36 See Breeden, 121 S. Ct. at 1509 (emphasis added and internal quotations and brackets omitted) (citing cases). In this case, however, Arasteh fails to meet even the more lenient standard for her claims. 36 Several courts have noted the apparent confusion and conflict in the Third Circuit. See, e.g. Newsome v. Admin. Off. of the Courts of New Jersey, 103 F. Supp. 2d 807, 817, n.12 (D.N.J. 2000), The Calloway court decided to apply the "severe and pervasive," following a then-recent Third Circuit opinion which, in turn, relied on Supreme Court case law. See Calloway, 2000 U.S. Dist. LEXIS 12642, *18, 2000 WL 1251909, at *5, n.9. Since Breeden is a more recent pronouncement from the Court (and states it is in line with precedent), the court will apply the "severe or pervasive" standard. [**51] To determine whethera hostile work environment is sufficiently severe or pervasive, the court must look at all the [*495] relevant circumstances surrounding the discriminatory conduct See Harris v. Forklift Sys., 510 U.S. 17, 23, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993). The court should judge the objective severity of the harassment and can consider (1) the frequency, (2) the severity (3) whether it is physically threatening or humiliating (rather than an offensive utterance), (4) whether it unreasonably interferes with employee's work performance and (5) the effect on employee's psychological well-being. See id. No single factor is required or dispositive. See id. As the Court stated, the real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are

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not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts . . . to distinguish between simple teasing or roughhousing . . . and conduct which a reasonable person in the plaintiff's position would find [**52] severely hostile or abusive. Oncale, 523 U.S. at 81-82. Considering all the facts and circumstances surrounding Arasteh's claims of sexual harassment, the court concludes that no reasonable person could find them "severely hostile or abusive." Doe's comments about Arasteh's relationship with her husband and his suggestion she socialize