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Hodgkins v. Kontes Chemistry & Life Sciences Product

March 6, 2000

JEAN HODGKINS,
PLAINTIFF,
V.
KONTES CHEMISTRY & LIFE SCIENCES PRODUCT,
DEFENDANT.



The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge

As amended March 16, 2000.

JEAN HODGKINS,
PLAINTIFF,
V.
KONTES CHEMISTRY & LIFE SCIENCES PRODUCT,
DEFENDANT.

Appearances: Eugene Mattioni, Esq. Joseph F. Bouvier, Esq. Mattioni, Llp 216 Haddon Avenue, Suite 100 Westmont, NJ 08108 Attorneys for Plaintiff Robert A. White, Esq. Robert C. Farley, Jr., Esq. Michael J. Ossip, Esq. Morgan, Lewis & Bockius Llp 214 Carnegie Center Princeton, NJ 08540 Attorneys for Defendant

The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge

OPINION

 SIMANDLE, District Judge

Introduction

In the present case, plaintiff Jean Hodgkins contends that defendant, Kontes Glass Company ("Kontes"), discriminated against her on the basis of her gender by, among other things, failing to promote her when two similarly situated male glassblowers were promoted and paying her lesser wages than similarly situated men, in violation of the Title VII, 42 U.S.C. § 2000e-2(a), the Equal Pay Act, 29 U.S.C. § 206, the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq. and 34:11-56.2, and by retaliating against her by creating a hostile work environment after she filed a complaint with the EEOC, in violation of 42 U.S.C. §§ 2000e-3a, 2000e-2(a), the Civil Rights Act of 1991, and 42 U.S.C. § 1981. She additionally argues that defendant intentionally inflicted emotional distress upon her, in violation of New Jersey tort law. Now before the Court is defendant's motion for summary judgment on all counts. For the reasons expressed below, defendant's motion will be granted as to Counts I, IV, and VII, and as to Counts III and VI except insofar as Counts III and VI are based on Rick Swartz's actions, and the motion will be denied as to Counts II and V.

I. BACKGROUND

A. Structure of Employees and Promotion at Kontes

Kontes is a manufacturer of scientific glassware for pharmaceutical companies and laboratories. (Joint Final Pretrial Order Stipulated Facts. *fn1 ) The fabrication of Kontes' glassware is done by hand and is highly specialized craftsmanship. Accordingly, Kontes employs skilled artisan glassblowers to create the glassware. (Id.) A scientific glassblower can be a lamp worker or a lathe worker. (Hodgkins Dep. at 21.) Glassblowers in the lathe department, known as lathe operators, use a lathe to turn the glass while the lathe operator utilizes torches and burners to melt and form the glass so that it meets customer specifications. (Ojeda Dep. at 18.) Glassblowers in the lamp room, known as lamp workers, work more free-handed - in that they do not exclusively rely on a lathe - although working with a lathe is an important criteria to becoming a skilled lamp worker. (Id.; Hodgkins Dep. at 116.) Lathe work generally requires less skill than lamp work (Neff Dep. at 14), and thus lamp workers are generally able to perform lathe work while lathe operators have more difficulty performing lamp work. (Ojeda Dep. at 20-21.) Kontes often cross-trains lamp workers in the lathe department to develop the lathe skill, as it is used in the lamp worker's process. (Robbins Dep. at 56.) Experience is a key component of becoming a good glassblower. (Hogkins Dep. at 114.)

Kontes has five classes of glassblowers: (1) trainee, (2) third class, (3) second class, (4) first class, and (5) premium. (Id.) In general, the difficulty and complexity of the work increases with each class so that a premium glassblower is more skilled than a first class glassblower, who is more skilled than a second class glassblower, and so on. (JFPO Stip.) The skill levels of glassblowers can vary within each class. (Id.) Accordingly, each class has a wage range, under which one glassblower may receive a higher wage than another glassblower even though they are in the same class. (Id.) Factors for determining where in pay range an employee is placed include the pay of the employees with similar abilities or skill level, length of experience, and work history. (Ojeda Dep. at 188-190.) However, within, for example, the third class, lamp workers generally work on the same types of projects, those contained within a written job description. (Id. at 26-30, 43- 44.) Similarly, there are written basic requirements in a job description for second class glassblowers. (Id. at 32-34.)

Glassblowers may seek advancement from one class to the next through a testing program (the "Program") implemented in the lamp room in October 1996 and the lathe department approximately one year earlier. (JFPO Stip.) Testing for promotion under the Program is offered twice per year in a two month cycle of April-May and October-November. (Id.) A glassblower may take the test twice during each cycle. (Id.) Thus, if a glassblower is tested in April and fails, she may test again in May. (Id.) To qualify to take the test, an employee has to have a 95% efficiency rating in the current classification. (Ojeda Dep. 73:15- 18.) The efficiency rate is determined by the actual number of pieces completed in an hour, measured against the number of pieces expected to be completed in an hour. (Id. at 78:3-22.) For instance, if a glassblower is expected to complete 100 of a certain type of product in an hour and only completes 85, then the employee's efficiency rating for that particular job would be 85%. (Id. at 78:3-11.) That efficiency rate does not take into consideration the quality of the completed product, such that a glassblower's efficiency rate is based only on the number of successfully completed pieces as reported by the employee and is not adjusted downward by the number of pieces later rejected for poor quality. (Robbins Dep. 143:20 - 145:12.) Each product has a designated efficiency rate. (Id. at 132:1-21.)

To insure consistency in the Program, Kontes identifies a core group of ten products considered a sampling of work that a certain class of glassblower would be expected to complete. (JFPO Stip.) From these ten core items, four are selected for the test (id.), based on customer orders that are on the floor at the time of the test. (Robbins Dep. 115-116.) For example, if a glassblower seeks promotion from third to second class, the glassblower is tested on four out of ten products that have been evaluated to be of the complexity that a second class glassblower would be able to successfully complete. (JFPO Stip.) The Program does not require that a glassblower have prior experience working with the product before being tested on it. (Robbins Dep. at 115-16.) However, Rick Swartz, who administers the test, tries to select pieces on which the employees being tested have previously worked. (Swartz Dep. 94:24 - 95:18.) To pass the test and advance to the next class, a glassblower must achieve an overall efficiency rate of 85% on the test before the products tested can be evaluated for quality. (Ojeda Dep. 77:11-14.) The efficiency rate on the test (unlike the efficiency rate of normally-completed projects which forms the basis of whether an employee is eligible to take the test in the first place) is adjusted by the number of poor quality pieces (Ojeda Dep. 73:12-22). For example, if five of 85 pieces are deemed unsatisfactory, the employee's effective efficiency rating would go down to 80%. (Id. at 78:12-22.)

Prior to October of 1996, when the Program was implemented in the lamp room, an employee could not be promoted to a higher class unless he or she met the structured promotion criteria. (Ojeda Dep. 62:16 - 63:12.) According to the structured promotion criteria, an employee had to possess the ability make 90% of the products in his or her current classification, complete satisfactorily 10% of the jobs in the next category (as assigned by the team leader), and maintain a 95% overall efficiency rate. (Id.)

The company maintains Labor Hours and Efficiency Reports to track the overall efficiency rates of the workers. (Robbins Dep. 140:1 - 141:12.) These reports show the total hours worked by each employee, broken down into direct and indirect hours. (Pl.'s Ex. G.) Direct hours are hours spent on the jobs themselves (Robbins Dep. 146:6-7), while indirect hours depict time the employee is not actually working on projects, such as setting up or cleaning up. (Id. at 146:10-12.) The higher the efficiency score, the better. (Swartz Dep. 100:4-9.) The lower the indirect score, the better. (Id. at 100:10-13.) The reports also show the number of overtime hours which each employee has worked. (Robbins Dep. 146:13-15.)

B. Relevant Employees' History at Kontes

After graduating from high school in 1991, plaintiff worked for approximately one year as a telemarketer and secretary. (Pl.'s Dep. at 18:11 and Ex. 1.) In 1992, she enrolled in Salem County Community College's ("Salem") scientific glassblowing technology program. (Id. at 16:8-10.) At the end of her first year at Salem, plaintiff submitted an application to Kontes to work as a part-time employee (id. at 17:2 - 18:17), and Stephanie Ojeda offered plaintiff a part-time position as a lamp worker in May of 1993 (id. at 23:6-15). Plaintiff worked approximately twenty hours a week at Kontes (id. at 24:4-6) for an hourly wage of $7.00 until May of 1994. (Ojeda Dep. 128:18-19.) Rick Swartz was her supervisor. (Pl.'s Dep. 24:7-8.) (Pl.'s Dep. 25:5-6.) In the spring of 1994, plaintiff spoke with Swartz about becoming a full-time employee after her graduation. (Id. at 26:5-16.) Swartz responded positively, and plaintiff began to work full-time after graduation. (Id.; Ojeda Dep. 129:3-10.) On June 30, 1994, plaintiff received an increase in her hourly wage to $8.00, with an effective date of July 11, 1994. (Id. at 129:21 - 130:11.)

In September 1994, plaintiff completed her probationary period as a general trainee (a three month period as a full-time employee) and became a trainee in the lamp room with an hourly wage of $9.07. (Id. at 133:9 - 134:12.) Her pay was again raised, to $9.30, in January of 1995, but she remained a trainee. (Id. at 134:13 - 135:6.) In August of 1995, plaintiff was promoted to a third-class glassblower and received a salary increase to $10 an hour, retroactive to April of 1995. (Id. at 135:7 - 136:1.) Plaintiff received a merit increase to $10.25/hour in January of 1996. (Id. at 136:8-17.)

In August 1996, plaintiff became aware that two employees, John Neff and Dan Pedrick, were getting paid substantially more than her. (Pl.'s Dep. 54-55.) By the time that Neff came to Kontes in August of 1995, he had almost three years of glassblowing experience after his graduation from the scientific glassblowing technology program at Salem in 1992. (Ojeda Dep. at 94:2 - 95:2.) He had worked for one year at Ad Mar Glass Company, where the work was not as complex as at Kontes because Neff was a "low man" at Ad Mar (Neff Dep. 12:2 - 13:7), for one year as a lathe worker at Lab Glass, and then for over one year at Wheaton Science Products performing lamp and lathe work. (Id. at 13:8 - 15:3.) At the time that Neff was hired by Kontes, he had approximately eight months more glasswork experience than plaintiff. (Pl.'s Br. at 5, n.1.) Kontes hired Neff as a third-class glassblower, and, in accordance with his prior pay of $12.00/hour at Wheaton, *fn2 and based on the fact that on his application Neff sought an hourly wage of $12.00/hour or more, Kontes offered Neff a starting wage of $12.00/hour. (Ojeda Dep. at 95:3-5.) In January of 1996, Neff received a merit increase to $12.30/hour. (Id. at 96:9-20.)

By the time that Dan Pedrick arrived at Kontes in April of 1996, he had three years and four months of glasswork experience, of which at least one year was performing lathe work. (Ojeda Dep. 102:3-12.) After graduating from Salem with a degree in scientific glassblowing in 1992, Pedrick worked at Wheaton as a lamp room glassblower beginning in June 1992 for one year and four months. (Pedrick Dep. 9:13-22.) He then worked at Varian X-Ray for one year, manufacturing x-ray bulbs, which was lathe work. (Id. at 10:117 - 11:11.) After driving a forklift for three to four months (id. at 11:18-23), Pedrick returned to Wheaton as a lamp worker for one year, where he made $13.00/hour. (Id. at 11:24 - 12:14.) In February of 1996, Pedrick applied to work at Kontes. (Id.) Kontes hired Pedrick as a third-class glassblower at a rate of $12.25/hour. (Ojeda Dep. 103:8-20.)

In August of 1996, Neff approached Swartz, his supervisor, and provided him with two weeks notice that he was resigning from Kontes and returning to Wheaton - a competitor of Kontes also located in Vineland, New Jersey. (Swartz Dep. 79:3-5.) Swartz told his supervisor, Production Manager Bill Robbins, about the resignation. (Id.) Robbins spoke with Neff, who informed him that he was resigning because Wheaton had offered him $14.00/hour. (Robbins Aff. ¶ 2.) Robbins then spoke with John Pranckun, Kontes' president at the time, who authorized him to offer Neff $14.00/hour if he would remain at Kontes. (Id. at ¶ 3.) Robbins feared that Wheaton might next attempt to get Dan Pedrick to leave Kontes, since Pedrick had also worked at Wheaton, so Robbins offered him an increase in wages to $13.75/hour, which he accepted. (Id. at ¶ 4.) Because Neff's and Pedrick's new salaries placed them outside of the third class lamp workers pay range, Neff and Pedrick received promotions to second class lamp workers. (Ojeda Dep. 97:2-23; 104:1-22.) At the time that they were promoted, neither Neff nor Pedrick met the previously required promotion criterion of having an efficiency rate of 95% in their current classification (Pl.'s Ex. G), and thus neither would have been eligible for promotion either under the old system or the new Program if they had gone through those channels to get a promotion. At the time, plaintiff's efficiency rating was slightly higher than that of either Neff or Pedrick. (Id.)

Shortly thereafter, Kontes reevaluated the jobs of all lamp workers, including plaintiff's, accordingly, because other lamp room workers were unhappy with the pay raise received by Neff and Pedrick. (Pl.'s Dep. 55:13-18.) Thus, in September 1996, plaintiff's hourly wage was increased to $10.91 (Ojeda Dep. 136:18 -137:14), while Neff earned $14.00 and Pedrick received $13.75 hourly.

At the time, plaintiff was doing the same type of work as Neff and Pedrick. (Pl.'s Dep. 47:11 - 48:15.) Other workers, such as Jose DelaRosario, the back-up group leader in the lamp room, believed that while Neff was more skilled than plaintiff, Pedrick was less skilled than Neff and not more skilled than plaintiff. (DelaRosario Dep. 57:21 - 58:23.) Another co-worker, Roberto Montalvo, also felt that plaintiff's skill level and quality of work were equal to those of Pedrick; though Neff was slightly more skilled, plaintiff produced glass products at a faster rate than either Neff or Pedrick. (Montalvo Aff. ¶ 2.) Robbins, however, did not believe that plaintiff's skill was equal to Neff and Pedrick. He testified at his deposition that while plaintiff was very fast, she was not a top quality lamp worker - "[h]er seals were shoddy" and "things would crack on her" - and the quality of her work did not improve over time. (Robbins Dep. 31:18 -32:2; 38:19- 21.) By contrast, he testified that John Neff's and Dan Pedrick's work quality and performance were both very good. (Id. at 35:15-20; 37:1-5.) *fn3

In October of 1996, when the Program for promotion in the lamp room was implemented, plaintiff had the opportunity to take the test but chose not to do so because she was told by Mr. Pranckun that she would not pass it. (Pl.'s Dep. 61:1-7) Roberto Montalvo, another third-class lamp worker did take the test in October of 1996 and passed, and thus he was promoted to second class lamp worker. (Robbins Dep. 123:9-24.) Plaintiff received a merit increase in January of 1997, to $11.29/hour. (Id. at 137:16.) She was not eligible to receive a merit increase in January of 1998 because of poor attendance in 1997, but, by April of 1998, she met the requirements to be reawarded the previously-forfeited raise, and she thus received a raise to $11.66/hour. (Id. at 138:3 - 139:21.) Up to that time, Swartz felt that plaintiff was a good employee, a hard worker, pleasant to be around, and lacking in attitude problems. (Swartz Dep. 121:4-24.)

In April of 1997, plaintiff again qualified to take the test for promotion, and this time she did. (Pl.'s Dep. 78:11-12.) Although her efficiency rate on this test was higher than the requisite 85%, plaintiff failed the test because of the poor quality of the finished products; her effective efficiency was only 33%. (Id. at 76:10-17.) She did not believe there was anything discriminatory about this test. (Id. at 77:4-6.) She retested in May of 1997, and again, she failed. (Id. at 78:5-10.) Her efficiency rate with respect to each of the four products on which she was tested was, respectively, 65.60%, 75%, 80.77%, and 59.73%. (Id. at Ex. 6.) Because she did not attain an overall efficiency rate of 85%, the quality of her work was never graded. (Id.) She felt that the pieces on which she was tested were selected in a discriminatory manner because she had never previously been trained on item number 1 and had never previously worked on items number 2 or 3. (Pl.'s Dep. 87-89.) She also believed that the rate given for the fourth item, the product on which she attained 59.73% efficiency, was impossible to obtain in the permitted in the permitted time: she was asked to do two per hour while the rate on the factory order for a similar piece was one per hour. (Robbins Dep. 127:13-15.) However, item number four was similar to a product on which Mr. Montalvo was tested in October of 1996; though the center necks on the two pieces differ, each piece should take the same time to prepare. (Robbins Dep. 123:9 - 125:8.) Montalvo did two of them and received an efficiency of 85%. (Id. at 125:9-12.)

After failing the re-test, plaintiff told Swartz that she thought the test was unfair because she never worked on some of the pieces before. (Swartz Dep. 143:10 - 145:11.) In May 1997, plaintiff specifically asked Swartz why Pedrick was getting paid more than plaintiff to do the same job, and at his deposition Swartz, who directly supervised both plaintiff and Pedrick, admitted that he really did not know why. (Id. at 175:20 -176:2.) However, Swartz had no control over how much the employees were paid. (Id. at 177:1-7.) In May 1997, plaintiff filed a charge of discrimination with the New Jersey Department of Civil Rights ("NJDCR"). (Compl. Ex. H.)

In May 1998, plaintiff took the promotion test again, and this time she passed with an effective efficiency score of 84.89%. (Pl.'s Dep. 97:14-20 and Ex. 7.) As a result, her hourly wage was increased to $13.21. (Ojeda Dep. 140:6-9.) As explained below, in August of 1998, plaintiff chose to cross-train in the lathe department instead of returning to the lamp room. (Pl.'s Dep. 118:12 - 119:12.) She has since returned to the lamp room as a second-class lamp worker, making $13.23/hour. (Ojeda Aff. ¶ 6.)

C. Plaintiff's Filing of a Charge of Discrimination and the Aftermath

Around the time that plaintiff filed her NJDCR complaint, she began to feel that her co-workers were retaliating against her because she filed the complaint.

§ People Stopped Talking to Plaintiff: For example, she alleges that Swartz and some of the lamp workers stopped talking to her. (Hodgkins Dep. 125:5-7.) Swartz would hardly talk to plaintiff anymore, and if one of her pieces was rejected, Swartz would simply put it on her workbench without discussing it with her. (DelaRosario Dep. 31:4-23.) When asked if he observed Swartz's attitude change toward plaintiff after she filed her discrimination claim, co-worker/back-up group leader DelaRosario responded, "I think we all saw it." (Id.) DelaRosario also observed that other workers' attitudes changed as well, such that numerous workers stopped talking to plaintiff. (Id. at 34:4 - 35:14.) Co-worker Montalvo also explained that Swartz stopped talking to plaintiff and would not provide her with any assistance in her work after she filed her complaint, causing plaintiff to suffer in terms of work performance. (Montalvo Aff. ¶¶ 5-6.) DelaRosario agreed that the lack of attention and training by Swartz to plaintiff after she filed her complaint, in the face of plaintiff's request for necessary training, harmed her work performance. (DelaRosario Dep. 30:10-19.) While Swartz would physically sit down with Neff and Pedrick at their benches and show them how to handle problems, he would not do the same for plaintiff, instead merely showing her the blueprints for pieces rather than provide her with hands-on assistance. (Id. at 28-30.)

§ Diminished Overtime: Plaintiff also believed that she was retaliated against in terms of diminished overtime. (Hodgkins Dep. 125:5-7.) Most of the workers were interested in working overtime when they had the chance, and they were entitled to that work if the work was available. (Swartz Dep. 74:1 - 76:11.) According to plaintiff, after plaintiff filed her NJDCR complaint, there was a drop-off in her overtime hours. (See Pl.'s Ex. G.) For the quarter ending May 31, 1997, 1997 (when plaintiff filed her complaint), plaintiff had 10.0 hours of overtime, while Neff had 21.4 hours and Pedrick had 15.9 hours. (Id.) In the quarter ending August 31, 1997 (during which time defendant learned of the complaint), plaintiff's overtime hours decreased to 6.9, Neff's to 20.9, and Pedrick's to 0.1. (Id.) The next quarter, ending November 30, 1997, plaintiff's overtime hours decreased again, to 5.3, while Neff's and Pedrick's both increased to 31.1 and 12.2, respectively. (Id.) *fn4 In the first three quarters of 1998, plaintiff had 28.6 hours of overtime, while Neff had 57.4 and Pedrick had 21.0. (Id.) Those numbers are a factor of the fact that in August 1998, plaintiff worked 20.5 hours of overtime while Neff worked 9.9 and Pedrick worked 0.0; for the first six months of 1998, plaintiff worked 2.2 hours overtime, while Neff worked 35.2 hours and Pedrick worked 7.1 overtime hours. (Id.) However, when reviewed on a month by month basis, instead of a quarter by quarter basis, and when the situation is taken out of the vacuum of 1997 alone and is instead viewed over time, a different picture emerges. Every glassblower's overtime hours fluctuate month to month, and as a general matter, Neff received more overtime than either Pedrick or plaintiff, and Pedrick sometimes received more than plaintiff and sometimes received less. (Id.) This pattern was true both before and after plaintiff filed her EEOC complaint. In some months after May of 1997, plaintiff received no or few overtime hours, but that was also true of months prior to the filing of the EEOC complaint. (See id., comparing the charts from 2/97 to 8/97.) The dip in overtime hours after May of 1997 differs little from dips in the past, and it also correlates with dips in the amount of overtime hours that Neff and Pedrick received after May of 1997. Though Pedrick and Neff continued to receive more overtime hours than plaintiff after May of 1997 (just as they did before May of 1997), they each received substantially fewer hours than they had received prior to May of 1997. (See id., comparing charts from 3/96, 1/97, 2/97, 5/97, 8/97, 11/97, and 1/98.)

§ Tyler's Cardboard Barrier: Plaintiff also stated that co- worker Frank Tyler began to create a hostile work environment for her in the summer of 1997. Tyler, one of the co-workers who stopped talking to plaintiff after she filed her NJDCR complaint, wedged a cardboard box partition between his work bench and plaintiff's work bench. (Hodgkins Dep. 126:22 - 127:18.) The barrier remained up for a couple of months, with Tyler putting it back up when plaintiff would take it down. (Neff Dep. 40:3-5; Tyler Dep. 25:21 - 26:3.) Plaintiff believes that he put it there to make clear that he did not want to speak to her. (Hodgkins Dep. 126:22 - 127:18.) Tyler claims that he put up the cardboard barrier, approximately three foot by three foot, in order to protect him from the heat from plaintiff's burner. (Tyler Dep. 24:23-25:8.) Plaintiff took down the barrier and Tyler put it back up, supposedly when plaintiff began another burner job. (Id. at 25:6 - 26:3.) This action would not typically be unusual in that the lamp room is very hot in the summer (Hodgkins Dep. 128:5 - 129: ) and such partitions are not unusual at Kontes (id. at 129:8-9). However, Tyler never discussed his actions with plaintiff (Tyler Dep. at 26:4-10), and Montalvo testified that Tyler kept the partition up even when plaintiff had no fire burning at her bench. (Montalvo Aff. ¶ 7.)

§ Comments: Plaintiff testified that Pedrick announced to the room that "the princess" had taken a break when plaintiff went to the water cooler (Hodgkins Dep. 130:12-24), and she has put forth other evidence that Pedrick made derogatory remarks and gestures toward plaintiff, including "sticking his tongue out and putting his fingers like there was a - like some sexual thing," and making comments along the lines of "this job is not for bitches." (DelaRosario Dep. 37:16 - 38:13, 36:3-6.) DelaRosario also heard Swartz refer to women as "bitches" once in a while. (Id. at 36:19-22.)

§ Pornographic Jokes: In January or February of 1998, plaintiff found a printout of pornographic jokes from the Internet near a lathe machine in the lamp room. (Hodgkins Dep. 111:10-20. See also Pl.'s Ex. S.) They were not shown to her; she found them. (Hodgkins Dep. 111:10-20.) The jokes are ones that most women would find to be degrading or demeaning. (See Pl.'s Ex. S. See also DelaRosario Dep. 47:24 - 48:3; Pedrick Dep. 35:8-19; Swartz Dep. 166:11-176, 169:6-12; Neff Dep. 50:8-21; Tyler Dep. 43:17-20.) Plaintiff kept a copy of them in order to be able to substantiate why she felt uncomfortable in the lamp room. (Hodgkins Dep. 136:16-20.) She gave copies of them to her attorney, the investigator for the Division on Civil Rights, and her parents. (Id. at 135-137.) She also showed them to DelaRosario, who said he had seen Swartz, Pedrick, Neff, and Tyler passing them around at work. (Id. at 135-136.) Swartz had several copies of the paper with the jokes and handed a copy to DelaRosario, laughing. (DelaRosario Dep. 47:3-17.) Neff believes the Swartz had a copy of the list. (Neff Dep. 49:20 - 50:2.) Pedrick remembered seeing the list and thinks it may have been left on his bench, but he claims that he discussed them only with Neff and Tyler. (Pedrick Dep. 34:11-23.) Tyler recalls seeing jokes like this at work on two or three occasions, and he was aware that Swartz brought them into work. (Tyler Dep. 38:22 - 39:13.) He saw the jokes in Swartz' desk. (Id. at 39:4-6.) Swartz denied ownership of the jokes, claiming that one of the male glassblowers, whom he could not recall, showed them to him, but he admitted that he did not reprimand the employee who gave him the jokes. (Swartz Dep. 165:5-11, 166:23 - 167:2.)

ยง Picture of Naked Woman: In late July 1998, plaintiff saw a picture of a topless woman being shown by Tyler to another lamp room worker. (Hodgkins Dep. 109-110.) She does not think that Tyler intended for her to see the ...


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