The opinion of the court was delivered by: Judge Nora Barry Fischer
This matter is before the Court on a motion for summary judgment. Mask Enterprises ("Defendant"), doing business as Nakama Japanese Steakhouse and Sushi Bar, filed this motion on January 31, 2008, in which it seeks summary dismissal of both counts in the Equal Employment Opportunity Commission's ("Plaintiff" or "EEOC") complaint, i.e., toleration of a racially hostile work environment and discriminatory retaliation in violation of 703(a)(1) and 704(a) of Title VII, 42 U.S.C. § 2000e-2(a)(1).
II. Procedural Background
On March 20, 2007, Plaintiff commenced this action. (Docket No. 1). At that time, the case was assigned to Judge Terrence F. McVerry. Subsequently, this case was reassigned to the undersigned Judge on June 25, 2007. (Docket No. 13). Initially, pursuant to Judge McVerry's case management order, discovery in this matter was to be concluded by August 31, 2007. (Docket No. 12). However, due to several discovery disputes, discovery was not completed until December 31, 2008. (Docket No. 40). In addition, at the parties' request, the Court conducted a settlement conference in this matter on October 2, 2007. (Docket No. 26). Because a settlement was not reached, on January 31, 2008, Defendant filed its Motion for Summary Judgment and Brief in Support. (Docket Nos. 44 and 45). Thereafter, on April 1, 2008, after Plaintiff requested and the Court granted an extension of time, (Docket No. 52), Plaintiff filed its Response and Brief in Opposition to Defendant's Motion. (Docket Nos. 53 and 55). Subsequently, on April 15, 2008, Defendant filed its Brief in Reply. (Docket No. 59). On April 23, 2008, this matter was fully briefed once Plaintiff filed its Sur-Reply Brief. (Docket No. 63).
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). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson v. Liberty Lobby, 477 U.S. 242 (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 its 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). In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249. "The court may consider any material or evidence that would be admissible or usable at trial in deciding the merits of a motion for summary judgment." Turner v. Leavitt, Civil Action No. 05-942, 2008 WL 828033, at *4 (W.D. Pa. March 25, 2008) (citing Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (citing 10 WRIGHT AND MILLER, FEDERAL PRACTICE § 2721at 40 (2d ed.1983))); Pollack v. City of Newark, 147 F. Supp. 35, 39 (D.N.J. 1956), aff'd, 248 F.2d 543 (3d Cir. 1957), cert. denied, 355 U.S. 964 (1958) ("in considering a motion for summary judgment, the court is entitled to consider exhibits and other papers that have been identified by affidavit or otherwise made admissible in evidence").
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 322-23. 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).
The Court finds that Defendant is not entitled to judgment as a matter of law as numerous genuine issues of material fact surround both of Plaintiff's claims The Court will consider the elements of each claim, in turn.
A. Hostile Work Environment Claim
In order to establish a prima facie case for a hostile work environment under Title VII, the plaintiff must prove the following: (1) the employee suffered intentional discrimination because of race; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected the employee; (4) the discrimination would detrimentally affect a reasonable person of the same race in that position; and (5) the existence of respondeat superior liability. Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22. The Court finds that genuine issues of material fact exist with respect to the first three factors.
For the first factor, the Plaintiff must prove that Taneesha Thomas ("Thomas") suffered intentional discrimination because of her race. Accordingly, Plaintiff must show that, if Thomas were a white person, she would not have been treated in the same manner. Johnson v. Souderton Area Sch. Dist., Civ. No. 95-7171, 1997 WL 164264, at *6 (E.D. Pa. Apr. 1, 1997). Thomas recalls a pattern of events to support her allegations. The Court will highlight the most important events. In early 2006, after a customer used racially derogatory language toward Thomas, she reported the incident to general manager Vince Cortazzo ("Cortazzo"). (Docket No. 54 at ¶ 5). It is disputed if and how effectively Cortazzo dealt with the customer. (Docket No. 54 at ¶ 5; Docket No. 47 at ¶ 5). After news of the incident spread throughout the restaurant, assistant manager Andrew Merola ("Merola") allegedly began to heckle Thomas with racially offensive comments, such as calling her a "fucking nigger." (Docket No. 54 at ¶ ...