The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE SUMMARY JUDGMENT MOTION
A novel state law issue requires resolution in this employment discrimination case. Does Lancaster County have the power to create a private cause of action for violation of the Lancaster County Human Relations Act ("LCHRA") brought by a terminated employee of a private company? Concluding that Lancaster County does not have this power under Pennsylvania state law, the Court will grant Defendants' Motion for Summary Judgment as to this claim, but find that Plaintiff has sufficient evidence to proceed to trial on other claims.
In an action brought pursuant to Title VII of the Civil Rights Act of 1964, Section 1981 of the Civil Rights Act of 1866, the LCHRA, the Pennsylvania Human Relations Act (PHRA), and common-law defamation, Plaintiff Nagi Youssef has alleged discrimination based on a failure to promote, retaliation, and harassment by his employer, Defendant Anvil International, and employees Larry Layman, Michael Millhouse, and Donald Moore. Defendants have moved for summary judgment on all claims. For the following reasons, the Motion will be GRANTED in part and DENIED in part.
A. Plaintiff's Employment History
Plaintiff is Egyptian. (Defs.' Statement Undisputed Fact ¶ 1.) Plaintiff was hired by Defendant Anvil as a millwright in February 1994. (Id. at ¶ 2.)As a millwright, he troubleshoots and repairs machines in the company machine shop. Plaintiff has received positive evaluations during his employment at Anvil. (Defs.' Mot. Summ. J. Exs. 8, 9; Pl.'s Resp. Defs.' Mot. Summ. J. Ex. D.) Plaintiff was promoted to Master Millwright in 2001.
Plaintiff sought advancement to be a supervisor starting in 2002. Plaintiff specifically identified two supervisor positions for which he applied and was interviewed. (Defs.' Mot. Summ. J. Ex. 3, Pl.'s Resp. to Defs.' Interrog. # 15). The first is a maintenance supervisor position filled by outside hire Steve Hatfield on January 13, 2003.*fn1 The second is a production supervisor position filled internally by Pam Lightner (whom the Court also believes is incorrectly referred to in the record as Pam Widener/Widner) on October 18, 2004.*fn2 Plaintiff identified an additional production supervisor position to which he applied that was filled in 2003 or 2004, but he could not name who filled the position. (Defs.' Statement Fact ¶ 5.)Finally, Plaintiff contends that in 2005 he responded to a newspaper ad for a maintenance planner position formerly held by Matthew Kossick. (Id. at ¶ 6.)Anvil decided not to fill this position due to department restructuring (Id. at ¶ 21.)*fn3
Despite admitting to applying to these positions in his interrogatory responses, Plaintiff argues in his Response brief that he did not formally "apply" for supervisor positions because Anvil did not have a formal in-house application process and employees learned of openings by "word of mouth." (Pl.'s Counter-Statement Undisputed Fact ¶ 4.) Defendant did not hire any production supervisors in the year prior to Plaintiff's termination (Defs.' Mot. Summ. J. Ex. 7 at ¶ 3, Suor Aff.)
Plaintiff met with general manager Paul Suor in Summer 2004 to discuss his desire to become a supervisor. Suor instructed Plaintiff to contact Department Supervisor Mike Millhouse and Human Resources Director Don Moore to develop a plan to work on his supervisory skills. (Defs.' Statement Fact ¶ 17.) Moore suggested that Pl. take supervisory courses at Harrisburg Area Community College through their tuition reimbursement program. (Defs.' Mot. Summ. J. Ex. 1 at 157, Youssef Dep.) Plaintiff completed one course on November 30, 2004. (Id. Ex. 11.) Moore also told Plaintiff that he would be invited to local supervisory training on-site "as time goes on." Plaintiff was never invited to training. (Pl.'s Counter-Statement Fact ¶ 18.)
Sometime in August 2005, Moore and Millhouse held a meeting with Plaintiff to tell him that he was not going to be considered for future supervisor opportunities. (Pl.'s Resp. Defs.' Mot. Ex. AA at 113, Moore Dep.) An unsigned note dated August 9, 2005, presumably in regards to the meeting, states "Nagi performance -- not impressing anyone -- supv. not getting feedback he needs to recommend promotion e.g. S/D sheets. [A]t this point Nagi states 'done talking' & walked out."(Pl.'s Resp. Defs.' Mot. Ex. T.) Also in August or September 2005, Moore and Millhouse held a meeting with Plaintiff to discuss some performance and record-keeping issues. Plaintiff responded "that's bullshit, I don't want to hear nothing" and left the meeting. (Def.'s Mot. Summ. J. Ex. 1 at 192-94, Youssef Dep.)
On September 12, 2005, Plaintiff filed a charge of discrimination with the Lancaster County Human Relations Commission (LCHRC) alleging national origin discrimination for his failure to be promoted. (Defs.' Mot. Summ. J. Ex. 12.) The charge was dual-filed with the Pennsylvania Human Relations Commission (PHRC) and Equal Employment Opportunity Commission (EEOC).
B. Plaintiff's Termination
On November 8, 2005, Plaintiff's immediate supervisor, Larry Layman, assigned him to repair several machines, including Machine No. 72. (Defs.' Statement Fact ¶ 25.) A work order had been filed for the Machine the night before. (Defs.' Mot. Summ. J. Ex. 13.) According to Plaintiff, the Machine had been down for a long time and others had tried to fix it without leaving notes or instructions. (Id. Ex. 1 at 218, Youssef Dep.) However, Machine No. 72 was not "locked out" or "tagged out" to indicate that another employee had started repairs on the machine. (Defs.' Statement Fact ¶ 28.)
Plaintiff spent about fifteen minutes trying to troubleshoot the machine but could not fix it. (Id. ¶ 30.) Plaintiff contends that he was not capable of fixing the machine and it required work done by a machinist (someone who makes machine parts), not a millwright (who repairs machines). (Pl.'s Counter-Statement Fact ¶ 26.) The machine eventually took fifty-five hours to fix and was not repaired until November 14. (Pl.'s Resp. Defs.' Mot. Ex. O.)
After unsuccessfully attempting to fix the machine, Plaintiff proceeded to work on another machine. Shortly thereafter, Layman came by and asked Plaintiff why he was not working on Machine No. 72. (Defs.' Statement Fact ¶ 34.) There is a dispute of fact as to what Plaintiff replied to Layman. In Layman's testimony to the Unemployment Compensation Board of Review, he stated that Nagi told him "he would not fix the machine." (Pl.'s Resp. Defs.' Mot. Ex. V at 55.) However, in Layman's deposition he agreed with counsel's statement that Nagi told him "he couldn't fix the machine." Layman told Plaintiff to continue working on the machine, but Plaintiff repeated he did not know what the problem was and Layman needed to show him the problem. (Defs.' Mot. Summ. J. Ex. 1 p. 219, Youssef Dep.)
After this encounter, Layman came walking through the shop and said "I'm going to fucking fire Nagi." (Pl.'s Resp. Defs.' Mot. Ex. Q at 4., Tshudy LCHRC Test.; Id. Ex. BB at 167:18-19, Layman Dep.) Layman then instructed Union President Maris Tshudy to bring Plaintiff to his office for a meeting. During the meeting, Layman asked Plaintiff to return to Machine No. 72 but Plaintiff refused, claiming that co-workers were not doing their share of the work. (Def.'s Mot. Summ. J. Ex. 15 ¶¶ 21, 25, Tshudy Aff.) At one point, Plaintiff left the meeting and returned shortly after with a large machine spindle, weighing 40 to 50 lbs., which he slammed on Layman's office floor and yelled, "Know your fucking job, Layman." (Id. ¶ 26.)Layman told Plaintiff he was suspended and to go home. (Defs.' Statement Fact ¶ 40.)
On November 9, 2008, Plaintiff discussed the events of November 8 with Moore by telephone. (Id. ¶ 41.) Moore recommended termination to General Manager Kim based on Plaintiff's insubordination on November 8 and during the prior meeting in August or September 2005. (Defs.' Mot. Summ. J. Ex. 17 at 57, Moore Dep.) "Insubordination, refusal to do assigned work, refusal to obey orders ..." are grounds for disciplinary action under the Anvil "Shop Rules and Regulations" (Id. Ex. 18.) Kim approved Moore's recommendation for termination. (Id. Ex. 17 at 41, Moore Dep.)Plaintiff was terminated on November 10, 2005. Plaintiff alleges that after his termination, Layman defamed him to the maintenance staff by telling them that Plaintiff had refused to do the job assigned to him and had walked away from the job. (Id. Ex. 1 at 239, Youssef Dep.)
C. Events Following Plaintiff's Termination
Following his termination, on November 15, 2005, Plaintiff filed a second charge with the LCHRCalleging retaliation.(Id. Ex. 19.) On December 12, 2005, Plaintiff filed an Amended Complaint with the LCHRC adding a hostile work environment allegation, which he had not raised previously. The Complaint alleged that Layman had made comments and "camel jokes" that ridiculed his nationality and were "offensive, intimidating, condescending, and rude." (Id. Ex. 20.) In his deposition, Layman admitted to laughing at, but not actively participating in or making, jokes about Mr. Youssef's Egyptian heritage. He admitted that there was some "just kidding around and stuff." (Pl.'s Resp. Defs.' Mot. Ex. BB at 193-94, Layman Dep.) Layman did not stop such jokes. (Id.) However, co-employee Gary Emenheiser stated that: "Racially/Ethnic charged jokes were common in the work place at Anvil and enjoyed by Larry Layman who added jokes of his own."*fn4 (Id. Ex. P, Emenheiser Aff.) In his deposition, Plaintiff stated that Layman had not made such comments for "like maybe one year or -- before separated." (Defs.' Mot. Summ. J. Ex. 1 at 180.)
Plaintiff received right-to-sue letters from the LCHRC on November 8, 2006 (complaint of discrimination) and December 12, 2006 (complaint of retaliation). (Pl.'s Resp. Defs.' Mot Ex. U). Plaintiff received a right-to-sue letter from the EEOC issued on August 23, 2007.
There are disputed issues of fact over the LCHRC investigation prior to the issuance of the right-to-sue letter. First, Tshudy testified to the LCHRC that "Nagi is a degreed Engineer and was treated totally different than any of the individuals I just named to you outside of that realm. And I believe, I believe it is because of the color of his skin." (Id. Ex. Q at 3, Tshudy LCHRC Test.) However, in a subsequent affidavit, Mr. Tshudy stated "I never observed Mr. Youssef being exposed to any form of harassment based on his national origin." (Defs.' Mot. Summ. J. Ex. 15 ¶ 11, Tshudy Aff.) Second, during discovery, Plaintiff discovered a draft of a letter from the LCHRC Executive Director to Anvil's attorney, Mr. Senft, dated July 28, 2006, which recommended a finding of a probable cause of discrimination and a probable cause of retaliation. (Pl.'s Resp. Defs.' Mot. Ex. FF.) However, the letter was never signed nor sent to the parties, but was found in the internal files of the LCHRC. (See Defs.' Reply Pl.'s Opp'n Defs.' Mot. Exs. 24, 25, Suor, Senft Deps.)
Finally, there is a dispute of fact about the exact date that Anvil received notice of Plaintiff's initial charge of discrimination filed with the LCHRC. Plaintiff alleges that Defendants received notice of the LCHRC charge on the date of Plaintiff's suspension, November 8, 2005. (Am. Compl. ¶ 26; Pl.'s Resp. Defs.' Mot. 24.) Defendants claim that they received this notice prior to the date of suspension, "some time after its mailing date of October 27, 2005" (Defs.' Answer Am. Compl. ¶¶ 26, 27.) The record does not reveal the exact date that Anvil received notice of the charge.
Plaintiff filed a Complaint with this Court on November 7, 2006 (Doc. No. 1). Plaintiff filed an Amended Complaint on February 20, 2007 (Doc. No. 2). Defendants filed a partial Motion to Dismiss on April 13, 2007 (Doc. No. 10), which the Court granted in part on November 28, 2007, dismissing Plaintiff's Title VII, wrongful discharge, and negligent supervision claims (Doc. No. 20). Plaintiff filed a Motion for Reconsideration to reinstate Count II (Title VII claim), which the Court granted on March 3, 2008(Doc. No. 29). On April 10, 2008, Plaintiff voluntarily dismissed Defendants Mueller and Walter, which are parent companies of Defendant Anvil (Doc. No. 32).
Following discovery, Defendants filed this Motion for Summary Judgment on October 6, 2008 (Doc. No. 54). On December 22, 2008, the Court held oral argument on the Motion. At oral argument, Plaintiff agreed to drop the defamation claim against Defendants Moore and Millhouse. In an Order (Doc. No. 73) following oral argument, the Court denied Plaintiff's Motion to Strike Defendant's Reply Brief (Doc. No. 66) and denied Defendant's Motion to Exclude Testimony of Gary Emenheiser (Doc. No. 69). At oral argument, the Court advised the parties that the Defendants' Motion for Summary Judgment would not be granted in full and that a trial would be scheduled. The following discussion articulates Plaintiff's claims that are dismissed and those which survive summary judgment.
III. Parties' Contentions
Plaintiff's remaining counts against the remaining Defendants are as follows: (I) Section 1981 against Defendant Anvil, (II) Title VII against Defendant Anvil, (III) PHRA against all Defendants, (IV) LCHRA against all Defendants, and (VI) defamation against Defendants Anvil and Layman.
In their Motion for Summary Judgment, Defendants contend that each of the Plaintiff's claims should be dismissed as a matter of law. Defendants argue that Plaintiff's LCHRA claim fails because there is no private right of action under the Act. In addition, Defendants claim that Plaintiff's Section 1981 claim is insufficient because Plaintiff has alleged national origin discrimination and Section 1981 solely protects race discrimination. Further, Defendants argue that Plaintiff's failure to promote claim under Title VII, Section 1981, PHRA, and LCHRA must fail for four reasons. First, all of the alleged promotions occurred prior to November 2004 and therefore are time-barred by the relevant statutes. Second, Defendants assert that Plaintiff has failed to exhaust his administrative remedy as to some of his promotion claims because Plaintiff did not identify all of the positions he now raises in his original LCHRC charge. Third, Defendants argue that two of the identified promotion positions must be dismissed due to evidentiary preclusion because Plaintiff failed to mention them in his answers to Defendants' interrogatories. Fourth, Defendants assert that Plaintiff has not shown Defendants' legitimate reason for not promoting him was pretextual.
As to Plaintiff's retaliation claim, Defendants argue that Plaintiff has failed to state a prima facie case because he has not shown a casual link between the protected activity and Plaintiff's termination; further, Plaintiff has not shown pretext. As to Plaintiff's hostile work environment claim, Defendants contend that this claim is time-barred, the alleged jokes were not severe and pervasive to meet the legal standard for a hostile work environment, and Plaintiff's claim is barred by his failure to report the jokes to his employer. Finally, Defendant asserts that Plaintiff's defamation claim is based entirely on hearsay and Layman's alleged statements are not sufficiently injurious and/or are based on opinion to form the basis of a hearsay claim.
Plaintiff replies that there is a private right of action under the LCHRA and that counties have the same powers of enforcement as the Pennsylvania Human Relations Commission. Plaintiff asserts that its Section 1981 claim is valid because it is based on ethnicity, which falls within the statute's protection. As to his failure to promote claim, Plaintiff argues that his claims support a continuing violation theory and are therefore not time-barred; that he has not failed to exhaust administrative remedies because he was discriminated against generally and not with regards to a specific position; and that there is sufficient evidence of pretext. As to his retaliation claim, Plaintiff argues that the temporal proximity between Defendants learning of Plaintiff's LCHRC charge and Plaintiff's firing establishes the necessary casual link to support a prima facie claim and that Plaintiff has shown a disputed issue of fact regarding pretext. As to his hostile work environment claim, Plaintiff argues that the conduct was severe and pervasive and Layman, as supervisor, failed to stop the jokes. Finally, as to his defamation claim, Plaintiff asserts that Layman published a deliberate falsehood about Plaintiff and that Defendants can not claim absolute or conditional privilege regarding the statement.
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, ...