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Still v. Cummins Power System

January 8, 2009


The opinion of the court was delivered by: Yohn, J.

Memorandum and Order

Joel Still brings this employment discrimination and retaliation suit against Cummins Power Systems, Inc.*fn1 ("Cummins") as well as Cummins employees William Robinson and John Casey under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq, and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. § 951 et seq. Defendants move for summary judgment on all counts pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons discussed herein, the court will grant in part and deny in part defendants' motion.

I. Factual Background*fn2

A. Still's Job History at Cummins

Defendant Cummins is a corporation organized under Pennsylvania law with its headquarters in Bristol, Pennsylvania. (Compl. ¶ 4 at p. 2*fn3 ; Def.'s Statement of Material Undisputed Facts ("Def.'s Statement") ¶ 1.) Cummins is "in the business of distribution, sale[,] and servicing of engines and power units." (Def.'s Statement ¶ 1.) Plaintiff Joel Still is an African-American male. (Compl. ¶ 3 at p. 2.) From December 1995 through November 10, 2006, Cummins employed Still. (Id. ¶ 3.) Still began his employment at Cummins as a mechanic and rose through promotion ultimately to the position of Service Manager at Cummins's Bristol location. (Id.) Cummins terminated Still's employment on November 10, 2006; at that time, out of approximately fifteen managers at the Bristol facility, Still was the only African-American manager. (Compl. ¶¶ 3-4.)

William Robinson and John Casey are white, male Cummins employees. (Compl. ¶¶ 5, 7 at p. 2.) At the times relevant to this case, Robinson was Operations Manager at the Cummins Bristol facility. (Decl. of William E. Robinson ["Robinson Decl."] ¶ 2, Aug. 22, 2008.) In April 2004, Robinson promoted Still to the position of Service Manager for Cummins's Engines Services Department, the last position that Still held at Cummins. (Pl.'s Dep. 38:18-39:8, May 30, 2008; Robinson Decl. ¶ 4.) When Still became a service manager, Robinson became Still's direct supervisor. (Robinson Decl. ¶ 5.) At the times relevant to this case, Casey was Director of Operations for Cummins, overseeing three Cummins service locations, including the Bristol facility. (Decl. of John Casey ("Casey Decl.") ¶ 2-3, August 22, 2008.) In that capacity, Casey supervised Robinson. (Compl. ¶ 6; Answer ¶ 6.)

Once Still became a service manager, defendants claim that Still's salary was higher than any of the other service managers at the Bristol facility. (Def.'s Statement ¶ 5.) Still asserts that he does not know the salaries of the other service managers and, therefore, cannot comment on their relative earnings. (Pl.'s Resp. Opp'n Def.'s Statement Undisputed Facts ["Pl.'s Resp."] ¶ 5.) As a service manager, Still was involved with, inter alia, running the shop, calling customers, warranty claim work, job quotes, and credit issues. (Pl.'s Dep. 42:12-43:15; Def.'s Statement ¶ 6; Pl.'s Resp. ¶ 6.)

After Still became a service manager, he had attendance problems at Cummins. (Pl.'s Dep. 102:23-103:1.) The parties, however, disagree as to the severity of these problems. Still admits that his attendance "was not the best" (Pl.'s Resp. ¶ 10) and agrees that his "attendance wasn't very good" (Pl.'s Dep. 102:23-103:1). Defendants point to a log that Robinson kept of Still's attendance for the period of December 6, 2004 through November 9, 2006. This log contains entries for at least fifty-nine instances of lateness, early departures, extended lunches, and other attendance problems during the approximately twenty-three month period for which the log was kept. (Robinson Decl. Ex. A.) Still has not submitted any evidence to contradict the entries in this log. Rather, he disputes defendants' characterization that he was "frequently" late. (Pl.'s Dep. 103:5-7.)*fn4

Defendants have submitted to the court Still's annual employee performance reviews for 2004, 2005, and 2006. (Robinson Decl. Ex. C-E.) As Still's supervisor, Robinson completed all three reports. Robinson and Still both signed the reports. On the 2004 review, Still earned a "5" (on a scale running from 1 to 10) for "punctuality and attendance." (Robinson Decl. Ex. C.) The form explanation associated with a rating of "5" reads "[n]ormal attendance, occasionally lacks legitimate reasons, average loss of time on job." Robinson commented on the 2004 report that Still had been a service manager for only two months at the time the report was completed, so "[a]ny evaluation of his performance, at this point, would be incomplete." (Robinson Decl. Ex. C.) Robinson did, however, write the following comments regarding Still's job performance on the 2004 report: "Extremely knowledgeable on the Cummins products. Very helpful to customers. Needs more experence [sic] as a service manager." (Id.)

On both the 2005 and 2006 performance reviews, Still received a "1" (the lowest possible rating) for "punctuality and attendance." (Robinson Decl. Ex. D-E.) The form explanation associated with a rating of "1" reads "[f]requent absence or tardiness, requires close supervision on job to avoid lost time." (Id.) Robinson made comments on both the 2005 and 2006 reports indicating that Still needed to increase the sales or profits of his department. (Id.)

By April 2005, defendants claim that Casey and Jay White, who at the time was Vice President of Operations for Cummins, decided to fire Still because of his attendance problems. (Robinson Decl. ¶ 10-11.) Defendants further claim that Robinson persuaded Casey and White to place Still on probation instead. (Id. 11-12.) Still denies these claims, asserting he has no knowledge of meetings between Casey, White, and Robinson. (Pl.'s Resp. ¶ 21.)

Still admits that Robinson spoke with him several times regarding his attendance at work. (Pl.'s Dep. 104:4-9.) Defendants claim that, on April 29, 2005, Still met with Robinson and Casey. (Robinson Decl. Ex. B.) Robinson and Casey informed Still that he was being placed on probation. (Pl.'s Dep. 104:10-12; Def.'s Statement ¶ 23.) At this meeting, Still signed a document entitled "Warning/Corrective Action Notice," ("Notice") which explained that he was being put on probation due to attendance problems and unsatisfactory job performance.*fn5

(Robinson Decl. Ex. B.) Under the terms of the Notice, Still was placed on probation for ninety days. His interim performance was to be evaluated after thirty and sixty days. (Id.) The Notice stated that the probationary period was Still's "LAST CHANCE," and that his future employment with Cummins depended on improvement of his attendance and job performance. (Id.) (capitalization in original).

Defendants contend that, "after a period of improvement following [his] probation," Still again had attendance problems. (Def.'s Statement ¶ 28.) Still agrees that he "was talked to about" his attendance after his probation but testified that he lacked sufficient memory to comment on the accuracy of Cummins's characterization of his post-probation attendance. (Pl.'s Dep. 180:23-181:19.) In approximately October 2006, Still told Robinson that Still "didn't like coming to work" and that he was "sick of the job." (Id. 171:6-172:3.)

Still testified that around the same time-October 2006-he began receiving work assignments for which he had not been trained and that he did not know how to complete. (Pl.'s Dep. 134:16-137:23.) Although Still could not recall the details of these assignments, he stated that they related to the preparation of revenue or productivity reports for his department. (Id. 135:5-9.) Still informed Robinson and Casey that he did not know how to complete these assignments. (Id. 136:22-137:4.) According to Still, Robinson and Casey told Still that another Cummins employee, Joe Kelly, "learned to do things on his own" and directed Still to seek help within the company. (Id. 137:5-10.) Still unsuccessfully sought instruction from Kelly. (Id. 37:1-2; 137:11-19.) Regarding these work assignments, Still testified as follows: "I tried to do the best I could do and then what I couldn't do, I didn't do." (Id. 137:18-19.) Still also testified that he "got in trouble for not getting [the assignments] done." (Id. 137:21-23.) Still further asserted that he had trouble with some of his duties due to lack of training, testifying as follows:

I just didn't know the computer as well, I didn't know how to do the progress reports with the reporting system as well to do my job with reports. You had to read the reports correctly, and I was trained two days by Joe Collins [(another Cummins employee)] before he left to go to Baltimore.

(Id. 109:15-20.)

On November 8, 2006, Still sent an e-mail to Robinson explaining that he might need to leave work early that day for a medical appointment. The following exchange of e-mails took place:*fn6

Still's Initial E-mail to Robinson: Bill [(Robinson)] I have to try and make a appointment, I been sick for 2 weeks and it seems to come and go , I came in at 10am this morning , I knew Mike was out , But I calling today to see when I can see the doctor I'm trying to make a night appointment but at this point I'm going to have to take what they have.

Robinson's Reply to Still: Why didn't you leave a message on my voice mail this morning telling me you would be late? You also left early last Wednesday without notifying me. Why?

We have had many discussions on this and you know you are suppose to contact me or leave me a message. What is the problem?

Still's Reply to Robinson: I leave early every Wed. Last Wed was Halloween*fn7 I left 5 min early trying to get a jump on traffic to get my daughter. I would have told you but you was not here,*fn8 Really didn't think it was a big deal obviously I was wrong again. You know I get reprimanded every time I'm late or anything but nothing is never said when I'm here late or on Sat. working.

As for today I was sick I have been sick and into work everyday on time I called Chuck This morning and asked him to tell you. I don't have a problem The only problem I have is that it seems like nothing is never good enough for you no matter what I do, So with that being said I will decide what I'm going to do or you can make the decision your self, because it seems to me that you don't want me here any way. (Def.'s Statement Ex. 3.)

On November 10, 2006, Still's employment at Cummins was terminated; Still testified that he was forced to resign. (Pl.'s Dep. 106:6-8.)

B. Allegations of Racial Discrimination

Still testified that Robinson discriminated against him in two ways: (1) by playing racially offensive audio clips and (2) by reprimanding Still for his attendance but not reprimanding another employee, Joe Collins, for arriving late.*fn9 (Id. 178:2-18.) Still also attributed the low marks on his performance reviews to Robinson. (Id. 107:11-109:11.)*fn10

1. Audio Clips

During at least part of the period in which Still worked as service manager, Robinson would use the computer in his own office to play digital audio clips from movies at gatherings of managers, including Still.*fn11, *fn12 (Robinson Decl. ¶¶ 17-23; Compl. ¶ 8-9.) Still testified that he found at least two of these clips racially offensive. (Pl.'s Dep. 129:17-20.) Those two audio clips, excerpted from the movies Pulp Fiction and Training Day, contained the "N-word."*fn13

(Pl.'s Dep. 128:5-130:20.)

The clip from Pulp Fiction was a "colloquy between two characters, Jimmie Dimmick (played by Quentin Tarantino ['QT']) and Jules Winnfield (played by Samuel Jackson ['SJ']), concerning the disposal of the corpse of an African-American . . . . Jimmie wants to help Jules dispose of the body but fears his wife's reaction." (Robinson Decl. at 6.) The clip from Pulp Fiction encompassed the following dialog:*fn14

QT: When you came pullin' in here, did you notice a sign on the front of my house that said "dead nigger storage?"

SJ: Jimmy, you know I ain't seen no . . .

QT: Did you notice a sign in the front of my house that said ...

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