Andreoli v. Rumsfeld

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit

4-6-2007

Andreoli v. Rumsfeld
Precedential or Non-Precedential: Precedential

Docket No. 05-5417

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 05-5417

JANICE ANDREOLI,
Appellant

v.

*ROBERT M. GATES, SECRETARY OF DEFENSE;
KEITH LIPPERT, VICE ADMIRAL, SC, USN,
DIRECTOR OF THE DEFENSE LOGISTICS AGENCY
OFFICE OF THE DIRECTOR DLA-D HEADQUARTERS,
DEFENSE LOGISTICS AGENCY

*(Amended pursuant to F.R.A.P. 43(c))

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 03-cv-06682)
District Judge: Honorable Thomas N. O’Neill

Argued January 8, 2007
 Before: SLOVITER and RENDELL, Circuit Judges,
and IRENAS**, District Judge.

(Filed: April 6, 2007)

Mary Ann Hagan [ARGUED]
1700 Sansom Street
Philadelphia, PA 19103
Counsel for Appellant

Kathleen Meriwether [ARGUED]
Office of U.S. Attorney
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellees

OPINION OF THE COURT

RENDELL, Circuit Judge.

Janice Andreoli appeals the order of the District Court
granting summary judgment in favor of her employer on her
Title VII claims for hostile work environment and retaliation,

** Honorable Joseph E. Irenas, Senior District Judge for the
District of New Jersey, sitting by designation.

2
and on her Rehabilitation Act claim for failure to provide
reasonable accommodation. Andreoli proffered evidence of
sexually harassing behavior toward her by her coworker, Larry
DeLutiis, while she was employed by the Department of
Defense at the Defense Supply Center in Philadelphia
(“DSCP”). The District Court held that, even if she proved the
other elements necessary for a hostile work environment claim,
her employer could not be held liable because management took
prompt and adequate remedial action upon learning of DeLutiis’
conduct, thus availing itself of the defense approved by the
Supreme Court in Burlington Industries, Inc. v. Ellerth, 524
U.S. 742, 765 (1998). We conclude that in doing so, the District
Court resolved issues of disputed fact that should have been
submitted to a jury.

Andreoli also contended that her employer retaliated
against her after she engaged in employment activities protected
by Title VII, including speaking with the Equal Employment
Opportunity (“EEO”) office at the DSCP. Andreoli further
asserted that the continuing abuse she endured at her workplace
rendered her disabled and that the DSCP failed to provide her
with a reasonable accommodation. We conclude that the
District Court properly granted summary judgment in favor of
her employer on both of these claims because Andreoli did not
proffer sufficient evidence to support a finding that her
employer’s alleged adverse actions were causally connected to
her protected employment activity under Title VII, or that she is
disabled within the meaning of the Rehabilitation Act. We will
therefore affirm in part, reverse in part, and remand for further
proceedings on Andreoli’s hostile work environment claim.

3
 I.

The District Court granted summary judgment in favor of
defendants1 on Andreoli’s hostile work environment claim based
on the conclusion that, under the applicable law, Andreoli’s
employer could not be held liable for DeLutiis’ conduct.
Although this ruling was essentially fact-based, we think it
helpful to discuss the elements of a hostile work environment
claim before delving into the lengthy factual underpinnings of
this case.

In order to state a claim under Title VII for
discrimination resulting from a hostile work environment, an
employee must show that “(1) the employee suffered intentional
discrimination because of [her] sex, (2) the discrimination was
pervasive and regular, (3) the discrimination detrimentally
affected the [employee], (4) the discrimination would
detrimentally affect a reasonable person of the same sex in that
position, and (5) the existence of respondeat superior liability.”
Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001). Here
the District Court focused on the last factor, and only that factor,
and we will do so as well.

An employer will be liable for the harassing conduct of
the alleged victim’s coworker if the employer was “negligent or

1
Andreoli sued Keith Lippert and Donald Rumsfeld in their
official capacities, as the Director of the Defense Logistics
Agency and the Secretary of the Department of Defense. App.
at 37.

4
reckless in failing to train, discipline, fire or take remedial action
upon notice of harassment.” Bonenberger v. Plymouth Twp.,
132 F.3d 20, 26 (3d Cir. 1997) (citing Bouton v. BMW of N.
Am., Inc., 29 F.3d 103, 106 (3d Cir. 1994)). An employer is
negligent if it “knew or should have known about the
harassment, but failed to take prompt and adequate remedial
action.” Jensen v. Potter, 435 F.3d 444, 453 (3d Cir. 2006)
(internal quotations omitted). Even if the remedial action does
not stop the alleged harassment,2 it is “adequate” if it is
“reasonably calculated” to end the harassment. Id. (quoting
Knabe v. Boury Corp., 114 F.3d 407, 412-13 (3d Cir. 1997)).

In most cases, the focus will be on the timing and nature
of the employer’s response. We have found an employer’s
actions to be adequate, as a matter of law, where management
undertook an investigation of the employee’s complaint within
a day after being notified of the harassment, spoke to the alleged
harasser about the allegations and the company’s sexual
harassment policy, and warned the harasser that the company
does not tolerate any sexual comments or actions. See Knabe v.
Boury Corp., 114 F.3d 407 (3d Cir. 1997). On the other hand,
we have denied summary judgment in favor of an employer
when there was a nineteen-month delay between when the

2
A remedial action that stops the harassment is adequate as
a matter of law. Knabe v. Boury Corp., 114 F.3d 407, 411 n.8
(3d Cir. 1997); see also Jensen, 435 F.3d at 453 (employer
action was “adequate” because it stopped the harassment);
Weston, 251 F.3d at 427 (no liability where employer action
stopped the harassment).

5
employer was notified of the complaint and when the employer
took remedial action. Jensen, 435 F.3d at 453. We have also
denied summary judgment in favor of an employer when there
was evidence that the employee’s supervisor knew about the
harassment and did nothing for three months, despite other
evidence that the alleged harasser’s supervisor later took
immediate action upon learning of the harassment.
Bonenberger, 132 F.3d at 26. We reasoned that a jury should
decide whether the employer’s remedial action was prompt and
adequate.

Here, the District Court decided that the remedial actions
taken by Andreoli’s employer were prompt and adequate, as a
matter of law. We will now review the factual background of
Andreoli’s claims in some detail in order to explain more fully
our grounds for concluding that there is a triable issue of
material fact regarding the adequacy and promptness of
Andreoli’s employer’s remedial actions. We will then discuss
our rationale for affirming as to the other two claims.

II.

Most of the underlying facts are undisputed. Where there
is a dispute, we view the facts in the light most favorable to
Andreoli. Abramson v. William Paterson Coll. of N.J., 260 F.3d
265, 267 (3d Cir. 2001).

Andreoli worked as a federal employee at the DSCP from
1988 until 2000, when she stopped coming to work because she
was suffering from Post-Traumatic Stress Disorder and
depression in reaction to the behavior of her coworker, Larry

6
DeLutiis. It all started in 1989, when DeLutiis began making
offensive, off-color comments to Andreoli about women from
work or women that he had seen outside of work. His
comments and actions were, at best, objectionable and, at worst,
lewd and harassing.3

When this conduct first began, Andreoli told DeLutiis
repeatedly that his comments were unwelcome and also
complained to her supervisors at the DSCP. There is no
evidence that the supervisors to whom Andreoli complained,
including her assistant shift supervisor and her shift supervisor,
Theodore DeSanto, took any action to prevent or remedy the
ongoing harassment. In response to Andreoli’s complaints, the
first line supervisor on her shift told her not to bother him “with
this shit.” App. at 597. Nothing was done after Andreoli,
visibly shaking and crying, told DeSanto that DeLutiis had
pushed his hand between her legs and refused to remove it.

3
DeLutiis described a woman that Andreoli knew from high
school as having “big jugs” and described what he would like to
do with the woman’s breasts. He also made reference to
fondling female coworkers and commented on Andreoli’s
clothes and appearance, including her buttocks and her chest.
He made comments about what he would do to Andreoli if he
ever had the opportunity and repeatedly mentioned that his
nickname was “the lapper.” App. at 595-96. He leaned very
close to Andreoli and brushed against her and tried to kiss her.
At one point, DeLutiis put his hand between Andreoli’s legs and
refused to remove it until Andreoli began screaming and dug her
fingernails into DeLutiis’ arm.

7
DeSanto ignored Andreoli’s distress, and joined DeLutiis in
laughing at the suggestion that Andreoli had pushed DeLutiis’
hand between her legs and told him to “feel her or finger her.”
App. at 597. Andreoli complained and made specific requests
for a shift change, but the supervisor in charge of all three shifts
of workers at the DSCP failed to act, and tried to avoid
discussing the matter with Andreoli.

There was one exception to this pattern of supervisory
inaction: Division Chief Robert Olewnik. After failing to elicit
any response from the four supervisors to whom she
complained, Andreoli sought out Olewnik and told him of the
escalating, pervasive, hostile, sexually harassing situation with
DeLutiis. Olewnik was not surprised. He assured Andreoli that
he would take care of it. App. at 600. However, despite these
assurances, nothing happened, and Andreoli sought his help a
few more times. Several months after Andreoli first
complained, Olewnik transferred DeLutiis to a different shift.
He also refused to promote DeLutiis to a supervisory position at
the DSCP, in part because Andreoli had told him that DeLutiis
had put his “hand under her dress.” App. at 565. DeLutiis
retaliated against Olewnik by filing a reverse discrimination
charge against the DSCP. Andreoli provided an affidavit
describing DeLutiis’ harassment to Olewnik for use in
defending against DeLutiis’ discrimination complaint, which
DeLutiis eventually withdrew. Olewnik left the DSCP in July
1995.

DeLutiis did not change his ways after he was transferred
to a different shift. In 1996, DeLutiis again began making
derogatory comments about women in Andreoli’s presence,

8
referring to his nickname and making remarks about how
women should not be in positions to make any decisions.
DeLutiis would linger around the office after his shift was over
and Andreoli had begun work on her shift, hanging around the
sign-in sheet or sitting in the print room or the break room.
DeLutiis also commented that he was going to switch to the
second shift, Andreoli’s shift.

Andreoli spoke to her immediate supervisor, Robert
Crawford, about what she had been through with DeLutiis.
Crawford replied, “Well, Janice, that was a long time ago. You
need to get over that.” App. at 607. She then spoke to Provision
Chief Rosemarie Badame. Andreoli, visibly shaken up and
crying, told Badame that DeLutiis was trying to get on her shift,
that he stalked her and sexually harassed her, and that the
harassment was ongoing. App. at 607. Badame replied that
Andreoli was not the first person to complain about DeLutiis’
behavior, but that if Andreoli were to tell anyone about the
harassment, DeLutiis would find out. Then, there would be
nothing Badame could do to “save” Andreoli because DeLutiis
has a pattern of harassing people. App. at 607. In 1997,
Andreoli applied for a position as an IT Specialist and was
transferred to DeLutiis’ shift.4

4
There is nothing in the record as to why Andreoli applied for
and accepted a job that required her to work on the same shift as
DeLutiis. However, she submits in her reply brief that she
applied for this position because, as a result of restructuring at
the Department of Defense, “all the employees in her section
were told that they must apply for jobs remaining at the facility”

9
 In February of 1999, while Andreoli was pursuing a
work-sponsored fellowship at Drexel University, she contacted
her employer’s EEO office about filing a complaint, and did file
a formal complaint in March, 2000. In the interim, she
completed the Drexel fellowship and returned to full-time work
at the DSCP. The DSCP was in a new location, and Andreoli
was assigned a workspace in an alcove in the building, where
the copy machine had previously been housed and the water
cooler was located. DeLutiis took advantage of Andreoli’s new
workspace location to stoop down and brush his leg against her
while he was getting a drink. The water cooler was eventually
moved, after Andreoli made several requests.

DeLutiis’ bad behavior continued. It escalated in April
2000, when he began to physically threaten Andreoli while
driving his government vehicle in the DSCP parking area. On
the first occasion, Andreoli was sitting on a cement post outside
one of the DSCP buildings and DeLutiis drove a government
van very close to Andreoli and parked in a no-parking area next
to where she was seated. Twice later that month, DeLutiis was
again driving a government van and swerved towards Andreoli
as though to run her over as she was crossing the parking lot.
Andreoli did not originally report these incidents to DSCP
management, out of concern that her supervisors had begun to
view her as a constant complainer, until DeLutiis drove head-on
toward her on May 22, 2000.

Andreoli went immediately to the office of her second

or risk being out of a job. Appellant’s Reply Br. at 6.

10
line supervisor, Dudley Bolbat, but was unable to get a meeting
with him that day. The next morning, Andreoli informed him
about the ongoing harassment by DeLutiis and DeLutiis’
threatening behavior, including the car incident. In response,
Bolbat asked Andreoli if she minded if he discussed the matter
with his wife and got back to her. App. at 622. A day or two
later, Bolbat told Andreoli that DeLutiis had been instructed to
beep his horn if Andreoli was in his way in the future. Not
surprisingly, this instruction was ineffective in putting a stop to
DeLutiis’ behavior. About a month later, DeLutiis again drove
a government van through the parking lot towards Andreoli,
who was standing with her sister near the DSCP building door.
Andreoli heard a screeching of tires coming towards her and her
sister, and both women lost their footing. DeLutiis parked the
van in the no-parking area next to where Andreoli and her sister
were seated and walked into the building. Contrary to Bolbat’s
alleged instructions, DeLutiis did not beep his horn.

Andreoli reported this incident to Bolbat and to the
detectives at the DSCP. In response, a traffic hearing was held
almost two months later, focusing on the general safety of
DeLutiis’ driving, rather than his intent to threaten and harass
Andreoli. The hearing officer did not allow Andreoli to discuss
prior incidents of harassment, and ultimately ruled in DeLutiis’
favor. Although a DSCP detective was initially eager to pursue
the matter further and investigate Andreoli’s allegations, his
attitude changed dramatically during the time that Andreoli was
away from work on vacation. When Andreoli called him after
she had returned from her vacation to discuss the investigation,
he told her that he could not speak with her and cut short their
phone conversation. App. at 624. The detective’s sudden lack

11
of interest in investigating DeLutiis’ behavior greatly upset
Andreoli and she was unable to report to work on the following
day, or for the rest of the week. She then sought psychiatric
help in July of 2000 and took a medical leave of absence from
the DSCP. At this time, Andreoli was diagnosed as suffering
from depression and panic disorder.

In December of 2000, Andreoli wrote to her DSCP
supervisor to request that the DSCP accommodate her disability
by allowing her to work from 8 p.m. until 4 a.m., so that she
could work without being in contact with DeLutiis. In April
2001, the DSCP denied this request and asked Andreoli to
submit medical documentation to help the DSCP identify
possible accommodations for Andreoli. Andreoli’s counsel
replied that Andreoli would be able to work anywhere other than
on the same physical site as DeLutiis. In June 2001, DSCP
notified Andreoli’s counsel that a suitable assignment for
Andreoli could not be identified.

It is undisputed that DeLutiis was never interviewed by
the agency EEO office about the formal complaint Andreoli
filed in March 2000, nor did DeLutiis at any time receive
training about sexual harassment from the DSCP. No supervisor
or manager at the DSCP ever spoke to, disciplined, or counseled
DeLutiis about his behavior towards Andreoli. App. at 127.
The only guidance given to DeLutiis by the DSCP was in the
form of a memo instructing him to stay away from Andreoli,
which he received in August of 2000, after Andreoli had already
taken leave from the DSCP. App. at 669.

12
 Andreoli filed a complaint against her employer in
federal court in December, 2003, asserting claims under Title
VII for hostile work environment and retaliation and under the
Rehabilitation Act for failure to provide reasonable
accommodation. The District Court granted summary judgment
in favor of defendants on all claims. This appeal followed.

III.

We exercise plenary review over the District Court's
grant of summary judgment in favor of Andreoli’s employer,
and we apply the same standard that the District Court should
have applied. Abramson v. William Paterson Coll. of N.J., 260
F.3d 265, 276 (3d Cir. 2001).5 Summary judgment is
appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c). We “must view the
facts in the light most favorable to the nonmoving party and
draw all inferences in that party's favor.” Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000).
A. Hostile Work Environment
The District Court concluded that Andreoli could not
succeed because her employer established, as a matter of law,

5
The District Court had jurisdiction pursuant to 28 U.S.C. §
1331 and § 1343. We have jurisdiction over Andreoli’s appeal
pursuant to 28 U.S.C. § 1291.

13
that it took prompt and adequate remedial action to terminate the
harassment and prevent further incidents. The District Court
evaluated the promptness and adequacy of management’s
remedial actions as follows:
Defendants argue that after learning of each
incident of DeLutiis' objectionable behavior,
management employees at the DSCP took prompt
and adequate remedial action to terminate the
harassment and prevent further incidents. I agree.
Defendants acted almost immediately after
learning of the alleged harassment in an attempt
to remedy DeLutiis' objectionable behavior and
prevent any further harassment.

App at. 21. The Court also took into consideration the fact that
Andreoli “affirmatively place[d] herself in a position of close
contact with her alleged harasser” by applying for a job that
required her to work the same shift as DeLutiis. App. at 23. We
have two problems with this analysis.
First, the District Court placed the burden on Andreoli’s
employer to establish that it was not vicariously liable for
DeLutiis’ conduct by proving that it took prompt and adequate
remedial action and that Andreoli failed to take advantage of the
preventive opportunities offered to her. See Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998) (holding
that employer has affirmative defense to vicarious liability for
supervisor’s conduct if (1) employer acted promptly and
reasonably to prevent and correct the alleged harassment and (2)
employee unreasonably failed to take advantage of preventive

14
opportunities offered to her). In this case, however, because
DeLutiis was not Andreoli’s supervisor, there is no presumption
of employer liability or accompanying burden on the employer
to establish an affirmative defense to liability. As we have
previously recognized, “[u]nder Title VII, much turns on
whether the harassers are supervisors or coworkers. If
supervisors create the hostile environment, the employer is
strictly liable, though an affirmative defense may be available
where there is no tangible employment action. When coworkers
are the perpetrators, the plaintiff must prove employer liability
using traditional agency principles.” Jensen v. Potter, 435 F.3d
444, 452-53 (3d Cir. 2006)(internal citations and quotations
omitted). Here, the burden is on Andreoli to prove that her
employer is liable for her coworker’s conduct by showing that
“management knew or should have known about the
harassment, but failed to take prompt and adequate remedial
action.” Id. at 453 (internal quotations omitted). The fact that
Andreoli accepted a job on the same shift as DeLutiis is more
significant if Ellerth is implicated, because a plaintiff’s having
availed herself of “preventive opportunities” is specifically at
issue under Ellerth. However, it is not a necessary consideration
when the issue is the employer’s conduct and liability for a
coworker’s conduct, where Ellerth is not implicated. Andreoli’s
taking a position on the same shift as DeLutiis could, however,
be considered by the jury as relevant to whether DeLutiis’
behavior was truly objectionable, or in evaluating Andreoli’s
credibility.
Second, after reviewing the record, we conclude that,
viewing the evidence in the light most favorable to Andreoli,
there is scant evidence to support the conclusion that defendants

15
took prompt and adequate remedial action. At best, there is a
genuine factual dispute as to whether defendants’ purported
remedial actions to address the ongoing harassment were prompt
and adequate.
The evidence shows that Andreoli had to speak to five
different supervisors about DeLutiis’ behavior in order to elicit
any response from management after she first began
complaining of sexual harassment in 1989. Even then,
management delayed more than five months in moving DeLutiis
to a different shift and took no further action on the matter, such
as investigating Andreoli’s allegations, speaking to DeLutiis
about the allegations of harassment, or giving him training
regarding sexual harassment or appropriate behavior in the
workplace. When Andreoli again reported that to her supervisor
in 1996 that DeLutiis was stalking her and sexually harassing
her, and that the harassment was ongoing, no action was taken
to address the allegations. The supervisor to whom Andreoli
spoke in fact discouraged her from speaking to anyone else
about the harassment and noted that DeLutiis was known to
engage in this type of behavior.
Management again took no real action after Andreoli
complained in May 2000 that DeLutiis had threatened her by
driving as though he was going to run her over. Management’s
only reaction to Andreoli’s allegations that DeLutiis was
engaged in a pattern of deliberate, potentially life-threatening
harassment was to instruct DeLutiis to beep his horn if he drove
near Andreoli. DeLutiis in fact denies that he was ever so
instructed, but, more importantly, it is unclear how asking
DeLutiis to beep his horn if Andreoli was in his way could be
designed to address Andreoli’s complaint that DeLutiis was

16
deliberately threatening her. When Andreoli again complained
that DeLutiis had once more threatened her with his government
vehicle in June 2000, it took two months for management to
take any action and, ultimately, it addressed this matter by
holding a traffic hearing concerning the general safety of
DeLutiis’s driving, without allowing Andreoli to present
evidence regarding DeLutiis’ past behavior and alleged intent to
harass, injure or scare her. Over the course of the twelve years
that Andreoli complained about DeLutiis’ harassing and
threatening behavior, the only instruction that DeLutiis ever
received regarding his behavior towards Andreoli from DSCP
management was a one-page memo given to him in August
2000, two months after the last incident of harassment and after
Andreoli had already left the DSCP with medical problems.
Since a reasonable juror could find that management at
the DSCP failed to take prompt and adequate remedial action
after learning of the alleged harassment against Andreoli, we
will reverse the District Court’s order granting summary
judgment to Andreoli’s employer on her Title VII hostile work
environment claim. A jury should decide whether Andreoli can
prove the five elements of a claim for hostile work
environment.6

6
On defendants’ motion for summary judgment, the District
Court addressed only the second and fifth elements of
Andreoli’s claim because the parties did not dispute the
remaining elements. App. at 16. The Court concluded that
there was a genuine dispute as to whether the discrimination
Andreoli suffered was pervasive and regular, but that summary
judgment should be granted in favor of defendants because

17
 B. Retaliation

In order to prevail on a claim for retaliation under Title
VII, an employee must prove that (1) she engaged in a protected
employment activity, (2) her employer took an adverse
employment action after or contemporaneous with the protected
activity, and (3) a “causal link” exists between the adverse
action and the protected activity. Weston v. Pennsylvania, 251
F.3d 420, 430 (3d Cir. 2001). While Andreoli does not provide
in either her complaint or her briefs a complete list of the
alleged adverse employment actions to which she was subjected,
we gather from her March EEO complaint that these included:
(1) the delay of her scheduled promotion in June 1999; (2) the
denial of an appropriate work area in June 1999; (3) the denial
of an equal training opportunity in January 2000; and (4) the
denial of a performance award in March 2000. App. at 186-87.
The District Court granted summary judgment in favor of
defendants on Andreoli’s claim for retaliation because, even
assuming Andreoli could show that she suffered an adverse
employment action, she failed to establish that any of the alleged
adverse actions were causally connected to the protected
employment activities in which she engaged. We agree that
Andreoli has failed to proffer sufficient evidence to allow a
reasonable juror to find a causal link between Andreoli’s

Andreoli had not established respondeat superior liability. App.
at 18a. Since we conclude that a reasonable juror could find
Andreoli’s employer liable on this claim, on remand, the entirety
of Andreoli’s hostile work environment claim should be decided
by a jury.

18
protected employment activities and the alleged adverse
employment actions taken by her employer.

Title VII provides that:
It shall be an unlawful employment practice for an
employer to discriminate against any of his
employees . . . because he has opposed any
practice made an unlawful employment practice
by this subchapter, or because he has made a
charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing
under this subchapter.

42 U.S.C. § 2000e-3(a). “Opposition” to discrimination “can
take the form of ‘informal protests of discriminatory
employment practices, including making complaints to
management.’” Moore v. City of Philadelphia, 461 F.3d 331,
343 (3d Cir. 2006) (quoting Curay-Cramer v. Ursuline Acad. of
Wilmington, Del., Inc., 450 F.3d 130, 135 (3d Cir. 2006)).
Here, Andreoli engaged in activity protected by Title VII
by complaining to her supervisors about DeLutiis’ harassing
behavior and by providing an affidavit describing DeLutiis’ past
harassment to be used in the investigation of the discrimination
complaint filed by DeLutiis. In addition, Andreoli filed
informal and formal complaints with her employer’s EEO office
about the hostile work environment at the DSCP.
After reviewing the evidence as a whole and viewing it
in the light most favorable to Andreoli, we conclude that a
reasonable juror could not conclude, or infer, that management’s

19
alleged adverse actions were causally connected to Andreoli’s
protected employment activities. There simply is insufficient
evidence to connect these events, nor is their timing, standing
alone, suggestive. The first of the alleged adverse employment
actions did not take place until June 1999, about a decade after
Andreoli first complained to management in 1989 about
DeLutiis’ behavior. Further, there is no evidence that Andreoli
engaged in any protected employment activities around the time
that management took the alleged adverse employment actions.
The protected activity closest in time to her March 2000 formal
complaint was in February of 1999, and that was more than four
months before the first of the alleged adverse actions took place
in June. We find that the five-month time period between
Andreoli’s informal complaint in February and the first alleged
adverse action in June is, without additional evidence,
insufficient to raise an inference of causation. Andreoli,
moreover, has not proffered any evidence that the supervisors
responsible for the alleged adverse actions were aware that
Andreoli had informally complained to the EEO office in
February. Accordingly, we will not disturb the District Court’s
ruling on this claim.

C. Rehabilitation Act

Andreoli argues that she is “disabled” within the meaning
of the Rehabilitation Act and that her employer violated the Act
by failing to provide her with a reasonable accommodation. To
make out a prima facie case of discrimination under the
Rehabilitation Act, an employee must first demonstrate that she
has a disability. Donahue v. Consol. Rail Corp., 224 F.3d 226,
229 (3d Cir. 2000). Andreoli argues that she is disabled under

20
the Rehabilitation Act because her impairments – depression
and Post-Traumatic Stress Disorder (“PTSD”) – substantially
limit her in the major life activities of working, thinking,
concentrating, and interacting with others. See 29 U.S.C. §
705(20)(B)(defining “individual with a disability” under the
relevant portion of the Act as “any person who has a physical or
mental impairment which substantially limits one or more of
such person’s major life activities” or has a record of such an
impairment, or is regarded as having such an impairment).

Andreoli proffered her deposition testimony and three
medical evaluations as evidence of her disability. Andreoli
testified that, after experiencing a panic attack in mid-July of
2000, she was unable to go to work and was counseled by her
family physician to consult a psychiatrist. App. at 624. She
then began seeing a psychiatrist on a regular basis and took
leave from the DSCP on her psychiatrist’s recommendation.
Andreoli stated that, at this time, she was experiencing “major
depression” and at times could not get out of bed or care for her
child. She noted that she “had trouble concentrating, thinking,
interacting with others.” App. at 627. Andreoli also declared
that she “definitely” cannot work in the environment at DSCP,
although she stated in her request to the DSCP for a reasonable
accommodation that she would be able to work at the DSCP as
long as she did not work on the same shift as DeLutiis.
Andreoli testified at her deposition that she does not “think” that
she is physically able to work in an office setting, but is trying
to work “in another type of field.” Id.

The medical evaluations by doctors who examined
Andreoli do not provide any additional details as to Andreoli’s

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limitations that would render her “disabled” within the meaning
of the Rehabilitation Act. Rather, they note her inability to
return to work at the DSCP. However, “the inability to perform
a single, particular job does not constitute a substantial
limitation in the major life activity of working.” 29 C.F.R. §
1630.2(j)(3)(I).

Andreoli urges that the approval of her occupational
disease claim for PTSD and severe depression by the U.S.
Department of Labor’s Office on Workers Compensation in
August 2001 and her receipt of workers’ compensation benefits
is evidence that she is disabled. However, the standard for
receipt of workers’ compensation benefits under the Federal
Employees’ Compensation Act (“FECA”) is different than the
standard for whether a person is “disabled” within the meaning
of the Rehabilitation Act. Compare 29 U.S.C. § 705(20)(B)
(requiring that an individual have “a physical or mental
impairment which substantially limits one or more of such
person’s major life activities” in order to be “disabled” under
Rehabilitation Act), with 5 U.S.C. § 8102(a) (FECA provision
requiring that the “United States shall pay compensation ... for
the disability or death of an employee resulting from personal
injury sustained while in the performance of his duty”), and 20
C.F.R.§ 10.5 (defining “disability” under the FECA as an
“incapacity, because of an employment injury, to earn the wages
the employee was receiving at the time of injury”).

The District Court concluded that a reasonable jury could
not find that Andreoli is disabled, in light of the undisputed
evidence that Andreoli was able to get married, finish her
bachelors degree, and attend nursing school after she allegedly

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became disabled. App. at 28. The Court noted that all of the
activities in which Andreoli engaged require thinking,
concentrating, and interacting with others. In addition, Andreoli
failed to show that she is substantially limited in the major life
activity of working because she did not offer evidence to show
that she is precluded from engaging in “a broad class of jobs.”
See Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999).
We agree with the District Court that a reasonable juror could
not find, based on the proffered evidence, that Andreoli is
“disabled” within the meaning of the Rehabilitation Act and we
will therefore affirm the grant of summary judgment in favor of
defendants on this claim.

III.

For the foregoing reasons, we will AFFIRM the grant of
summary judgment in favor of defendants on the Title VII
retaliation and Rehabilitation Act claims, and we will
REVERSE the District Court's grant of summary judgment in
favor of defendants on the Title VII hostile work environment
claim and REMAND for further proceedings on that claim.

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