employees have escaped termination when they have accumulated more than sixteen points. (Pl. Exhs. B, D & E, Affidavits of David Brown, Cliff Holloman, and Dennis Zappone).
3. The discrimination detrimentally affected the plaintiff. Id. This is met by evidence that plaintiff sometimes he had to do the job of two or three persons without any assistance (Brown depo. p. 223), that he was terminated from his employment, and that he felt that the environment was hostile (Brown depo. p. 220).
4. The discrimination would detrimentally affect a reasonable person in the same position. Id. This is met by plaintiff's evidence that he was given points for lateness under the attendance policy while white workers in the similar circumstances were not, that he was terminated when he accumulated in excess of sixteen attendance points while white employees were not, that supervisors were quick to discipline African American workers but did not discipline white workers for the same mistakes, and that supervisors used racial slurs to refer to African American employees, stated that they "would have to get rid of the worthless blacks," and discouraged others from teaching useful skills to African American workers (Pl. Exhs. B, D & E, Affidavits of David Brown, Cliff Holloman, and Dennis Zappone Affidavit).
5. The existence of respondeat superior liability. Id. Plaintiff has met this factor by showing that the supervisors in the maintenance department were the cause of his allegations. If evidence is shown that a supervisory employee himself or herself created the hostile environment, a fortiori the requirement of respondeat superior is shown. Cf. Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990).
I will deny the motion for summary judgment on the retaliation claim. The elements of a retaliation claim are that: 1) plaintiff engaged in protected conduct; 2) his employer took adverse action against him; and 3) a causal link between the protected conduct and the adverse action. Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989), cert. denied, 493 U.S. 1023, 107 L. Ed. 2d 745, 110 S. Ct. 725 (1990).
At issue is whether there was a causal relationship between plaintiff's protected conduct and the adverse action. Plaintiff was terminated four months after he filed a complaint with the Equal Employment Opportunity Commission (EEOC), and plaintiff provides evidence that at the end of the meeting where he was terminated Ms. Hudson said "I'll be seeing you down at the EEOC" (Pl. Exhs. B & B-11, David Brown affidavit P 12, and Richard Bradbury letter). Depending on the context and the mode of communication, this statement could raise the necessary inference of causation.
IV. Pennsylvania Human Relations Act
Defendant moves for summary judgment on plaintiff's state law PHRA claim on the grounds that he has failed to exhaust his administrative remedies. I will deny this motion.
To properly invoke the PHRC's jurisdiction, a plaintiff must file a verified complaint setting forth the particular allegations of discriminatory practice. 43 Pa. Stat. Ann. § 959(a).
Plaintiff's EEOC complaint was not verified, but the accompanying affidavit setting forth the allegations in more detail was. (Def. Exh. B, David Brown's August 10, 1992, EEOC Complaint). Defendant argues that plaintiff's failure to file a verified complaint entitles it to summary judgment.
Although Pennsylvania law is unsettled on whether an unverified complaint adequately invokes the jurisdiction of the PHRC, Pennsylvania Human Relations Commission v. School District of Philadelphia, 522 Pa. 436, 562 A.2d 313 (1989), because plaintiff's verified affidavit set forth in more detail the same allegations as contained in his complaint - he swore that the allegations set forth in the complaint were true - I hold that at least in this case the verification requirement was satisfied.
V. Plaintiff's Motion to Strike Defendant's Motion for Summary Judgment as Untimely
Plaintiff moves to strike defendant's motion for summary judgment as untimely because although defendant timely filed its motion, it later filed a corrected version of its supporting memorandum five days after the deadline for dispositive motions as set by this court. I will deny this motion as without merit.
And now, 6th this of July, 1995, upon consideration of defendant's motion for summary judgment addressed to plaintiff's First Amended Complaint as supplemented by Count V, the PHPA claim, of his Second Amended Complaint, and upon consideration of plaintiff's motion to strike defendant's motion for summary judgment it is ORDERED that:
1. Defendant's motion for summary judgment as to plaintiff's ERISA claim (Count I of his First Amended Complaint) is GRANTED.
2. Defendant's motion for summary judgment as to plaintiff's Americans with Disabilities Act claim (Count VII of his First Amended Complaint) is GRANTED.