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Hatcher v. Conifer Realty LLC

October 30, 2007


The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)


Presently before the court is a motion for summary judgment by defendant Conifer Realty LLC ("Conifer"). For the reasons that follow, the motion will be granted.*fn1

I. Statement of Facts*fn2

Plaintiff James Hatcher ("Hatcher") is African-American. Hatcher is a floor covering installer, which includes installing tile, cover base, rubber stair treads, and carpet. He learned his profession working in his father's business and subsequently opened his own business in 1986. When his business went bankrupt in 1990-1991, Hatcher worked for others as a flooring installer, either as an employee or a subcontractor. At times, Hatcher would bid for a job as a subcontractor even though he did not have liability insurance. At its discretion, the contractor or owner might hire Hatcher as an employee. However, at other times, Hatcher worked as a subcontractor operating without liability insurance. (Doc. 37 ¶¶ 1, 3-5, 8-9; Doc. 58; Doc. 40 at 37.)

In February 2003, Hatcher submitted a bid as a subcontractor to Conifer to do floor installation work at the Ivy Lane Apartments ("Ivy Lane"),*fn3 even though he did not have insurance at the time. (Doc. 37 ¶¶ 2, 13; Doc. 58.) Conifer rejected Hatcher's bid to work as a subcontractor when Hatcher asked for approximately $4,000 up-front in order to purchase insurance before he began work. Instead, Conifer hired Hatcher in March 2003 as an employee for $20.00 per hour, inclusive of benefits, to install the carpet, resilient flooring, rubber stair treads, and walk-off mats at the entrances. Hatcher was hired by Jack Burggraaff ("Burggraaff") and the Ivy Lane site supervisor, Greg Bates ("Bates"),*fn4 both Caucasian. (Doc. 37 ¶¶ 15-16, 18, 20, 24-25; Doc. 58.)

Once working, Hatcher recruited four other individuals-Harvey Gorham, Jeffrey Spencer, Al Johnson, and Anthony Hatcher (plaintiff's brother)-to work on the flooring installation at Ivy Lane. These four individuals, all African-American, worked only part-time because there was not enough work to bring them on as full-time employees, like Hatcher. (Doc. 37 ¶¶ 21-23; Doc. 58.)

The renovations at Ivy Lane required work in both occupied and unoccupied apartments. At times, Conifer's workers had trouble with the tenants of occupied apartments because the tenants did not trust workers in their apartments. (Doc. 37 ¶¶ 29-30; Doc. 58.) In June 2003, two carpenters doing bathroom renovations refused to do the work in two apartments (70 and 72) because the tenants accused them of making a mess. (Doc. 37 ¶ 31; Doc. 58; Doc. 40 at 170-71.) The tenants were both African-American women. (Doc. 40 at 173.) Shortly thereafter, Bates dispatched another carpenter to finish the renovations in apartments 70 and 72. (Id. at 170.) Meanwhile, there were also discussions among the renovation crew about skipping apartment 57 because the tenant got into a heated dispute with the electricians doing work in her apartment. The tenant, an African-American woman, did not want the electricians sitting or placing their tool belts on her children's beds. (Id. at 173-74.)

Following the incident with apartments 70 and 72 and discussions regarding apartment 57, Hatcher learned from Burggraaff's boss that there were only two reasons that an occupied apartment should be bypassed during renovations: (1) the tenant refused to cooperate and move furniture out of the way or (2) the tenant would not open the door to allow access to the apartment. (Id. at 171-72.) Hatcher informed Burggraaff that he believed workers wanted to skip apartment 57 "because of some kind of spite thing that they were mad at" the tenant. Burggraaff subsequently announced to the renovation crew: "[W]e're not going to skip [apartment 57]." (Id. at 176.)

During Conifer's renovation work on units in proximity to apartment 57, Bates and the tenant in apartment 57 became embroiled in an acrimonious verbal dispute about whether her apartment would be bypassed. (Id. at 178-79.) Hatcher informed Burggraaff about this altercation. The day before renovations were to begin on apartment 57, Hatcher confirmed with Burggraaff that apartment 57 was not to be bypassed. (Id. at 179-80.) However, Hatcher learned the next day that Bates had decided unilaterally to skip apartment 57. (Id. at 181.) Hatcher confronted Bates and told him that his decisions to bypass apartments was discriminatory because Bates only bypassed the apartments of African-American women. Hatcher also told Bates that he was not going to participate in this discrimination. (Id. at 181-82, 194.) Hatcher decided that he would not work until the situation was resolved (i.e., he would protest Bates' discriminatory behavior), but he ensured that all of the other workers doing floor covering stayed on the job. (Id. at 194-95, 201-02.)

Hatcher called Burggraaff to explain his perspective of the situation and Burggraaff told Hatcher that he would look into the matter. (Id. at 195.) Burggraaff eventually informed Hatcher that Bates was ordered to renovate apartment 57 and that Hatcher could return to work. (Id. at 200-01, 207.)

When Hatcher returned to Ivy Lane, Bates told Hatcher that he did not want Hatcher coming back to work because Hatcher did not support his decision to bypass apartment 57. Bates wanted to keep Harvey Gorham and Anthony Hatcher full-time because they supported his decision.*fn5 (Id. at 214-15.) Bates only allowed Hatcher to return as a subcontractor, not an employee, limited to doing carpet installation on steps. (Id. at 215-17.) Hatcher contacted Burggraaff because he wanted to return to his position as an employee. Burggraaff told Hatcher that he would resolve the issue with Bates and asked Hatcher to work on the steps until he did so. Hatcher agreed. (Id. at 220.) The following week, however, Burggraaff told Hatcher that he supported Bates' decision to have Hatcher work as a subcontractor. (Id. at 221, 235-37.) Hatcher objected and raised numerous issues, including the fact that he did not have liability insurance to work as a subcontractor. Burggraaff said that he would see what he could do, but in the meantime that Hatcher should continue as a subcontractor. (Id. at 221.) After a few days, Hatcher left for a few weeks because he was disappointed that he was no longer an employee.*fn6 (Id. at 237-40.) Hatcher returned as a subcontractor for only a few more days before leaving the job site permanently. (Id. at 241.)

During the time that Hatcher worked for Conifer, Bates made two inappropriate remarks to Hatcher. On one occasion, Bates remarked that Hatcher's mother sounded sexy on the phone. A month and a half later, Bates suggested that he might ask Hatcher's wife out on a date. (Id. at 144, 147; Doc. 37 ¶ 26; Doc. 58.)

On August 23, 2004, Hatcher commenced the instant action. (Doc. 1.) He subsequently filed an amended complaint (Doc. 9) alleging unlawful retaliation and discrimination in employment under Title VII, 42 U.S.C. § 2000e-2, under the Civil Rights Act, 42 U.S.C. § 1981, and under the Pennsylvania Human Relations Act ("PHRA"), 43 PA. STAT. ANN. §§ 951-963.*fn7 Conifer filed the instant motion ...

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