The opinion of the court was delivered by: Judge Nora Barry Fischer
This is an employment discrimination case brought by an African American male, Kevin Stewart ("Plaintiff") who was an employee of Amazing Glazed, d/b/a Krispy Kreme Doughnuts ("Defendant") located in Monroeville, Pennsylvania. Plaintiff was hired on May 24, 2003 as a doughnut producer and was subsequently promoted to the position of shift supervisor. In January of 2005, Plaintiff alleges that he complained to Defendant about racially derogatory remarks made by his co-workers. On or about May 5, 2005, Plaintiff was terminated by Defendant. Defendant claims that Plaintiff was terminated because he violated Defendant's attendance policy by not coming to work and for failing to contact the General Manager to "call off" from work for two shifts (May 4, 2005 and May 5, 2005). Plaintiff argues that Defendant's management scheduled him to work during a week that had already been approved for his vacation and that, in any event, he appropriately notified his employer that he would not be available for his scheduled shifts by "calling off" in accordance with company policy. Plaintiff alleges that his termination occurred as the result of discrimination on the basis of his race and retaliation in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("Section 1981") and Title VII of the Civil Rights Act of 1964 ("Title VII") as well as in violation of the Pennsylvania Human Relations Act ("PHRA").
Defendant filed its Motion for Summary Judgment on January 18, 2007. Judge Hardiman, the judge formerly assigned to this case, granted three requests for extensions of time to file briefs (two for Plaintiff, one for Defendant). (See Document Nos. 31, 33, 39). Consequently, this motion was not fully briefed until April 12, 2007. (See Document No. 40). In the interim, this case was transferred to the undersigned judge upon Judge Hardiman's elevation to the Third Circuit. (See Text Only Entry of April 6, 2007). On May 21, 2007, the undersigned Judge ordered a settlement conference in this matter, which occurred on July 5, 2007. (Document No. 41; Text Only Entry of July 5, 2007). However, this case did not settle as the result of those negotiations. Accordingly, Defendant's Motion for Summary Judgment is now before this Court.
Summary judgment may only be granted "if 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). Pursuant to Rule 56, the Court must enter summary judgment against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In evaluating the evidence, the court must interpret facts in the light most favorable to the non-moving party, and draw all reasonable inferences in his favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007). Initially, the burden is on the moving party to demonstrate that the evidence in the record creates no genuine issue of material fact. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). The dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). While the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the admissible evidence in the record would be insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324. The nonmoving party "cannot simply reassert factually unsupported allegations contained in its pleadings." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).
Upon reviewing Defendant's Motion for Summary Judgment and supporting brief (Document Nos. 26, 27), Plaintiff's brief in opposition (Document No. 34), and Defendant's Reply (Document No. 40), it is clear that, as to both Plaintiff's discrimination claim and retaliation claims, genuine issues of material fact remain in dispute and summary judgment is inappropriate. Accordingly, for the reasons set forth below, Defendant's Motion for Summary Judgment is DENIED.
A. Plaintiff's Employment History With Defendant and Acknowledgment of Defendant's Policies
Defendant, a licensed franchisee of Krispy Kreme Doughnuts, hired Plaintiff on May 24, 2003 as a third shift doughnut producer. (Document No. 28, Concise Statement of Material Facts in Support of Amazing Glazed, LLC's Motion for Summary Judgment, "Defendant's Facts" at ¶¶ 2, 6).*fn1 Thereafter, in September or October 2003, Plaintiff was promoted from third shift doughnut producer to third shift supervisor. Id. at ¶ 36. In the spring of 2005, Plaintiff was named a daylight shift production supervisor. Id. at ¶ 49; Plaintiff's Facts at ¶ 49. As a shift supervisor, Plaintiff's supervisors were various managers, as well as the general manager and assistant general manager. Deposition of Kevin Stewart at p. 45; Deposition of Eric Williams at p. 58.
At the beginning of his employment, Defendant provided Plaintiff with an Employee Manual and two days of training regarding company policies and eight days of training in making doughnuts. Id. at ¶ 10. Plaintiff provided written confirmation that he received and reviewed Defendant's Employee Handbook on June 13, 2003. Id. at ¶¶ 11-12.
Defendant's Employee Handbook sets forth the following attendance policy: It is essential for the success of the company and for the security of everyone's job that the company provides its customers with the best and most consistent service. In order to accomplish this objective, regular and prompt attendance at work, is required. Employees are required to be available to work schedules posted up to and including overtime. Attendance consists of call-offs, lateness, and no call/no shows. The policy below has been established and will be enforced as a means to keep the rate of absenteeism to an acceptable one.
If you are a no call/no show for a scheduled shift, you will be terminated. Id. at ¶ 21.
Plaintiff acknowledged that he understood the attendance policy, that a no call/no show was grounds for termination and that he was required to be at work, on time, as set forth on the schedule. Id. at ¶ 22. Plaintiff also admits that it was his responsibility to check the schedule on a daily basis and that he was responsible for the shifts he was scheduled to work. Id. at ¶¶ 23, 24. Defendant states that pursuant to Defendant's attendance policy, and as conveyed verbally to Stewart and the other management staff by General Manager Marcus Abbott ("GM Abbott") in early 2005, any call off made by a manager or supervisor had to be made directly to GM Abbott. Id. at ¶¶ 25, 27. Plaintiff denies that he was required to call off to GM Abbott, and denies that GM Abbott told him that he must do so. Plaintiff's Facts at ¶ 25.
Plaintiff received vacation time as a benefit from his employer. Plaintiff's Supplemental Facts at ¶ 14. In late 2004 or early 2005, Plaintiff requested vacation time for his trip to Florida from April 29, 2005-May 5, 2005. Id. at ¶¶ 15, 20; see also Defendant's Facts at ¶ 63. Plaintiff claims that this request was made in accordance with Defendant's policy requiring that employees take vacation in one week increments. Plaintiff's Supplemental Facts at ¶ 21. Defendant, however, argues that employees were permitted to take vacation in two or three day increments. Deposition of Marcus Abbott at pp. 25, 28; Deposition of Eric Williams at p. 18. In addition, Defendant argues that its Employee Handbook also allows Defendant to amend its policies, such as the vacation and call off policies, as necessary. (Document 40 at p. 6).
Defendant also maintains a non-harassment policy, which provides that:
The Company is committed to providing a workplace free of sexual harassment and/or discrimination, as well as unlawful harassment and/or discrimination based on age, ancestry, color, sexual preference, marital status, medical condition, mental disability, physical disability, (including any condition or disability of persons infected with HIV virus or persons with AIDS), national origin, race, religion, sex, sexual orientation or veteran status. The Company does not tolerate harassment or discrimination of employees by managers, supervisors, or co-workers and will also attempt to protect employees from harassment or discrimination by non-employees in the workplace. Moreover, the Company will not tolerate retaliation against any employee who reports harassing or discriminatory conduct.
Guidelines: The Company is committed to preventing and investigating incidents of harassment and/or discrimination and to responding to such incidents with appropriate disciplinary and other actions up to and including discharge, regardless of whether such incidents appear to be in violation of existing statutes. The Company's primary concern is providing an optimal work environment for all employees.
The Company will not condone or tolerate sexual or other harassment. Sexual or other harassment by any employee may be grounds for immediate termination. All complaints and occurrences regarding discrimination, including sexual or other harassment, should be promptly directed to your Supervisor. Should the activity continue, call the Human Resources Department (570-675-8100).
Defendant's Facts at ¶ 28. Plaintiff was familiar with and understood this policy, although Plaintiff denies that the policy was strictly followed. Id. at ¶15; Plaintiff's Facts at ¶13. In addition, Plaintiff understood that harassing behavior should be reported to his supervisor and that if such behavior continued, Plaintiff was to report the same to the Human ...