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WRAGG v. COMCAST METROPHONE

August 26, 1998

LEONARD WRAGG, Plaintiff,
v.
COMCAST METROPHONE, Defendant.



The opinion of the court was delivered by: JOYNER

MEMORANDUM AND ORDER

 JOYNER, J.

 AUGUST 26, 1998

 Presently before the Court is Defendant, Comcast Metrophone's ("Comcast" or "Defendant"), Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. Comcast seeks summary judgment on all counts of Plaintiff, Leonard Wragg's ("Wragg" or "Plaintiff"), complaint which seeks relief for racial discrimination under Title VII in count I, under ┬ž 1981 in count II, and under the Pennsylvania Human Relations Act ("PHRA") in count III. For the following reasons, the Motion is Granted.

 BACKGROUND

 Plaintiff, an African American, was employed by Comcast in approximately March of 1992 as a Cell Technician I ("Cell Tech I"). Plaintiff continued employment with Comcast until his discharge in October of 1995.

 Comcast has a promotion and job posting policy which encourages current employees to apply for promotions within the company. When a promotion opportunity becomes available Comcast posts a notice that includes the job requirements and responsibilities. An employee who is interested in applying for the position submits a transfer request form. Promotion decisions are made based, among other things, upon performance, initiative, experience, education, conduct, technical skills, and seniority. Comcast has a practice of interviewing both qualified applicants and those not yet qualified. Comcast interviews the not yet qualified to let them know what steps they need to take to become qualified for such a promotion. When the successful candidate is chosen, Comcast announces the promotion at the next cell technician meeting. Further, those who were interviewed and did not get the position are individually interviewed by a representative from human resources to ensure that they were satisfied with the process. During Plaintiff's employment, he applied for and was denied promotions to a Cell Tech II *fn1" position on four occasions: August of 1993, *fn2" February of 1995, May of 1995, and August of 1995.

 Further, during the course of Plaintiff's employment, he received three (3) disciplinary notices in November of 1994, February of 1995, and June of 1995. The last of these notices put Plaintiff on a six month probationary period. During this probationary period Plaintiff was on notice that any infraction could, and in this case did, lead to his termination.

 Plaintiff alleges that during his employment on at least three occasions racist comments were made to him. The first of these came in approximately July of 1994 when Wragg's supervisor at the time, Roger Doub ("Doub"), allegedly said "something to [Wragg] to the effect of that [Wragg] should be slaving in the sun, or something to that effect." (Wragg Dep. at 411). The second comment came in approximately June of 1995 when a Comcast supervisor, Mark Bulwicz ("Bulwicz"), allegedly told Wragg that Wragg made too much money to be promoted. See (Wragg Dep. at 368). Finally, Wragg alleges that John Cooke ("Cooke"), Plaintiff's immediate supervisor in June of 1995, repeatedly called Wragg's home on June 12, 1995 and made a racial slur on the answering machine tape. Wragg alleges that Cooke called him a "n ***** " on the answering machine tape. (Wragg Dep. at 196- 205).

 Wragg only complained to Comcast concerning the incident with Cooke. This complaint was lodged in June of 1995. *fn3" Comcast investigated Wragg's complaint by interviewing four employees and issuing a written report which recommended Wragg be assigned to a new supervisor. This report also notified Wragg of Comcast's decision and delineated Comcast's procedures to appeal the decision. Wragg never appealed the decision.

 Plaintiff was assigned to a new supervisor, Wilbert Carter ("Carter"), pursuant to the investigation report. From August 1995 until October of 1995, Carter noted many deficiencies in Wragg's performance and Carter alleges that, in a final incident of insubordination, Wragg insulted and cursed at Carter, lied to Carter, and threatened to walk off the job. *fn4" Due to this alleged behavior, Carter concluded that Wragg should be discharged and spoke to a human resources representative concerning this discharge. Wragg was discharged on October 12, 1995.

 On January 11, 1996, Plaintiff filed a discrimination complaint with the Pennsylvania Human Relations Commission ("PHRC") which he amended on June 13, 1996. Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on March 29, 1996. Plaintiff filed this action on May 29, 1997.

 I. Summary Judgment Standard

 Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, reveal no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Our responsibility is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The presence of "a mere scintilla of evidence" in the nonmovant's favor will not avoid summary judgment. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989)(citing Anderson, 477 U.S. ...


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