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Neal v. Juice

February 10, 2009

LARRY NEAL, PLAINTIFF,
v.
DAILY'S JUICE, DIVISION OF AMERICAN BEVERAGE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Bissoon*fn1

MEMORANDUM ORDER

I. MEMORANDUM

Defendant's Motion for Summary Judgment (Doc. 24) will be granted in part and denied in part as described below, and Plaintiff's Motion for Summary Judgment (Doc. 22) will be denied.

BACKGROUND

Plaintiff Larry E. Neal has filed this lawsuit, pro se, against his former employer, Daily's Juice ("Defendant"). See generally Compl. (Doc. 1). Plaintiff claims discrimination under Title VII based on race. See id. The only substantive allegations in his Complaint are as follows:

Defendant has repeatedly discriminated . . . and retaliated against Afr[ican] American employees[.]

After a[n EEOC] charge of discrimination was filed [by Plaintiff] on March 21, 2005 . . ., [D]efendant moved [P]laintiff to a dangerous work location intentionally for the purpose of intimidation. [The l]ocation of [Plaintiff's] office was repeatedly hit by forklift traffic until [the] office collapsed with [P]laintiff inside[,] nearly causing his demise. [Defendant p]assed over [P]laintiff for promotion[s] and on a regular basis has allowed Afr[ican] Americans to be harassed racially without taking action.

Compl. at ¶¶ 4-5.*fn2

Defendant has moved for summary judgment, and Plaintiff has presented little evidence in opposition. Essentially, the Court is limited to Plaintiff's two-page "[Response] to Summary Judgment," the papers attached thereto, and the EEOC charges filed by Plaintiff and attached to Defendant's moving papers. See Pl.'s Resp. in Opp'n (Doc. 27, hereinafter referenced as "SJ Response," and cited as "SJ Resp.")at 1-2; Pl.'s Mar. 21, 2005 EEOC Charge (filed as Ex. 3 to Doc. 25, hereinafter "the 2005 EEOC Charge") (alleging race discrimination); Pl.'s Aug. 14, 2006 EEOC Charge (filed as Ex. 4 to Doc. 25, hereinafter "the 2006 EEOC Charge") (alleging race discrimination and retaliation).

Plaintiff's "Response" mixes argumentation with factual averments of the kind typically found in a sworn declaration. See Pl.'s Resp. Plaintiff, however, has not even signed the document, let alone sworn on personal knowledge to the veracity of its contents. See id. Although unrepresented litigants are afforded some leniency, Plaintiff's submission is not even close to the kind of pro se filing that courts have considered as evidence on summary judgment. Cf., e.g., Howard v. Hunter, 2008 WL 4601028, *2 (C.D. Cal. Oct. 10, 2008) ("[i]n resolving a summary judgment motion filed against a pro se plaintiff," court may consider "contentions offered in motion[ papers] and pleadings" that "are based on personal knowledge" and "attested under penalty of perjury . . . [to be] true and correct") (citation to quoted source omitted); Egli v. Stevens, 1993 WL 153141, *8 n.6 (E.D. Pa. May 11, 1993) (for pro se plaintiff, where "neither [the] complaint nor his response to defendants' motion for summary judgment contain[ed] a verification," court could "treat neither as if it were an affidavit"), aff'd, 17 F.3d 1429 (3d Cir. Jan. 3, 1994) (table). Accordingly, the District Court will not consider the contents of Plaintiff's Response.*fn3

The exhibits attached to Plaintiff's Response likewise are of little utility. They consist of: correspondence and form letters regarding Plaintiff's EEOC proceedings, see Doc. 27-2 at pgs. 1 & 10 of 33; orders entered against Plaintiff in the Family Division of the Court of Common Pleas of Allegheny County, id. at 2-3; spread sheets regarding Defendant apparently prepared on behalf of the EEOC, id. at 4-7; indiscernible photocopies of pictures taken by Plaintiff at his former work stations, id. at 12-28; messages sent to Plaintiff's work email account by co-workers, id. at 29-30; a form letter sent to Plaintiff by his long term disability ("LTD") provider, id. at 31; a two page recitation of employment discrimination law, id. at 32-33; and an EEOC "Determination" letter finding that Defendant violated Title VII and a seemingly related "Witness Interview" summary. Id. at 8-9, 11.

The Family Division orders are irrelevant for the purposes of summary judgment. So too are the EEOC form letters, correspondence, and spread sheets. Plaintiff's photographs are unauthenticated, and immaterial at this stage in the proceedings. Plaintiff's facially neutral work emails have no meaningful effect on the validity of his claims. The same is true regarding the LTD form letter. Finally, the EEOC Determination letter is of questionable admissibility and, even assuming the Court properly may consider it, the EEOC's findings are not binding on this tribunal. See Coleman v. Home Depot, Inc., 306 F.3d 1333, 1335 (3d Cir. 2002) ("an EEOC Letter of Determination is not per se admissible"); Laber v. Harvey, 438 F.3d 404, 420 (4th Cir. 2006) (district court's review of discrimination claims is de novo, and "private-sector employees . . . [are] unable to use the EEOC's [determination] to compel a [judicial] finding of discrimination") (citation omitted).

Last are Plaintiff's EEOC Charges, which Defendant itself has placed into the record. Plaintiff signed the Charges, "declar[ing] under penalty of perjury" as to their "tru[th] and correct[ness]." See 2005 EEOC Charge; 2006 EEOC Charge. Such documents routinely are considered within the context of summary judgment, and so will they be here. Cf. generally Dawson v. Harran, 2008 WL 1959696, *4 n.6 (E.D. Pa. May 5, 2008) ("an EEOC Charge of Discrimination is a public record that may be considered" at 12(b)(6) stage and thereafter) (citations omitted).

The primary focus of Plaintiff's discrimination claims is Defendant placing him in undesirable and/or unsafe work locations. See generally Compl. at ¶ 5. Defendant operated two facilities, one in Verona, Pennsylvania and the other in Blawnox, Pennsylvania. See generally Aff. of K. Janowitz (Ex. 5 to Doc. 25) at ¶ 5. Plaintiff initially was stationed in Verona, and later was moved to Blawnox. See id. at ¶¶ 5-7. Plaintiff's 2005 EEOC Charge addressed the Verona facility:

[In] February 2004, my office [in Verona] was moved into the back of a tractor-trailer. This trailer had no light except for sunlight. The trailer leaked water and had no heat. After six months, my office was moved into the equivalent of a broom closet, with little light or air. I am currently still assigned [to] this work area. . . .

I believe I was discriminated against because of my race, . . . in that white employees have not been subjected to the same deplorable ...


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