Judith Benny v. Commonwealth of Pennsylvania, Department of Corrections, State Correctional…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5499
JUDITH BENNY,
Appellant
v.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF CORRECTIONS, STATE CORRECTIONAL
INSTITUTION AT SOMERSET,
Appellee
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 03-cv-00127)
District Judge: Honorable Kim R. Gibson
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 26, 2006
Before: SMITH, WEIS & NYGAARD, Circuit Judges
Filed November 17, 2006
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OPINION
WEIS, Circuit Judge.
This is an employment discrimination action brought pursuant to the
Americans with Disabilities Act of 1990, 42 U. S. C. § 12101 et seq., the Age
Discrimination in Employment Act of 1967, 29 U. S. C. § 621, et seq., and Title VII of the

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Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq. Plaintiff contends that defendant
discriminated against her on the basis of age and disability and that she was subjected to
sexual harassment in the form of a hostile work environment.
The District Court dismissed the age and disability discrimination claims and
plaintiff does not appeal those orders. The only issue presented in this appeal is whether
plaintiff’ claim for sex discrimination based on a hostile work environment can survive
summary judgment. We conclude that it cannot.
Plaintiff is a 61 year-old woman who was employed by the State
Correctional Institution at Somerset beginning in 1997. In April of 2004, she was
transferred to the State Correctional Institution at Laurel Highlands. She alleges that,
during her tenure at the Somerset institution, she encountered several inappropriate sexual
remarks from co-workers that she alleges constituted a pattern of sex discrimination in the
workplace.
In order to establish a case of sex discrimination, plaintiff must show that the
workplace is both “objectively and subjectively offensive, one that a reasonable person
would find hostile or abusive, and one that the victim in fact did perceive to be so.”
Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (citing Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21-22 (1993)).
The court must consider the totality of the circumstances when determining

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whether a hostile work environment exists, including the “frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee's work
performance.” Harris, 510 U.S. at 23. “Simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to” a hostile work environment.
Faragher, 524 U.S. at 788 (internal quotations and citations omitted).
The sporadic incidents of sexually inappropriate language that plaintiff
alleges do not comprise an objectively hostile work environment. These combined
incidents are significantly less severe and less pervasive than the circumstances that courts
have found sufficient to constitute a hostile work environment. See, e.g., Harris, 510 U.S.
at 19-20; Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 60-61 (1986).
Because plaintiff’s claim fails on the merits, we need not reach the issue of
whether her claim is time-barred.
The judgment of the District Court will be affirmed.

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