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Lopez v. Alrod Enterprises

March 11, 2009

RAYMOND LOPEZ, PLAINTIFF
v.
ALROD ENTERPRISES, INC., DEFENDANT.



The opinion of the court was delivered by: Anita B. Brody, J.

MEMORANDUM AND ORDER

I. INTRODUCTION

This case involves a dispute between Raymond Lopez and his former employer Alrod Enterprises, Inc., ("Alrod") a security company. Lopez was a security officer at a U.S. Customs House under a contract between Alrod and the Federal Protective Service ("FPS"). An FPS inspector witnessed Lopez abandon his post while armed to buy food. Alrod suspended him for one month in response and then fired Lopez when FPS demanded his removal from the contract. Alleging that Alrod treated non-Hispanic employees less severely, Lopez sued Alrod for race discrimination and retaliation in violation of Title VII of the Civil Rights Act, as amended, 42 U.S.C. §§ 2000e-200e-17, and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. §§ 951-963.*fn1 Before me now is Alrod's motion for summary judgment under Fed. R. Civ. Pro. 56 (Doc. #17). Because Lopez has not rebutted Alrod's legitimate reason for firing him or established a prima facie case of retaliation, I will grant summary judgment.

II. BACKGROUND*fn2

Alrod provided security personnel to federal buildings in Philadelphia, PA, under a contract with FPS, an agency within the U.S. Department of Homeland Security. Alrod had no other contracts. Lopez, who is Hispanic, began working for Alrod in November 1999 as a security officer. He was fired in 2003 because of alleged sexual harassment, but Lopez filed a grievance with the U.S. Equal Employment Opportunity Commission ("EEOC"), reached a settlement, and was rehired. The instant dispute began in February 2005 when Lopez was assigned to the U.S. Customs House at 200 Chestnut Street.

On February 3, 2005, Lopez was scheduled to work from 2:00 PM to 10:00 PM. He called his supervisor to request a break several times at around 4:30 PM and 6:15 PM. Receiving no answer, he walked across the street and entered a pizza shop at around 6:25 PM. Lopez returned five minutes later with a newspaper and a bag containing food. He never obtained permission to leave, and he failed to sign out or return his gun before leaving.

FPS Inspector Richard Rhames saw Lopez return from the pizza shop. Rhames was FPS's chief inspector and contracting officer at the Customs House. He questioned Lopez, who admitted leaving to buy the newspaper. Rhames reported the incident to Hal Gindrow, Alrod's project manager responsible for the contract with FPS. His report cites Lopez for abandoning his post, lying on official documents, and failing to return his gun before leaving.*fn3 Lopez has admitted these allegations.

Gindrow transferred Lopez away from the Customs House on February 7, 2005, and suspended him on February 11, 2005, pending an investigation by Rhames. When the investigation was complete, Rhames demanded that Lopez be removed from the contract.*fn4

Gindrow then fired Lopez on April 11, 2005, telling him that his termination was based on his misconduct of February 3, 2005, and Rhames's demand. Although Lopez's termination and rehire in 2003 occurred before Gindrow arrived and involved a confidential settlement agreement, Gindrow was aware that some previous incident involving Lopez had occurred.*fn5

Lopez asserts that Alrod's non-Hispanic security officers received less severe punishments for similar misconduct.*fn6 Anderson Nash abandoned his post when his mother was sick, but his supervisor Michael Coston merely transferred him. Michael Wiggins abandoned his post to buy food, but his supervisor Michael Hall merely transferred him. Kimberly Settles abandoned her post during lunch and signed in falsely when she returned, but she received no punishment even though her supervisor Hall knew of her misconduct. Samuel Woniewala abandoned his post to leave for his second job and left his gun unattended, but his supervisor Vincent DeMatteo merely suspended him for about five days and transferred him. Andre Brown was found asleep at his post, but his supervisor Gindrow never fired him. Joseph Pipitone was also found asleep at his post, and Gindrow suspended him for two weeks, reduced his work schedule for six weeks, and fired him.*fn7.

III. STANDARD

Fed. R. Civ. Pro. 56 provides that a court must grant summary judgment when "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. Pro. 56(c). Facts are "material" when they might affect the outcome of the case, and a "genuine issue" exists when the evidence would allow a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-52 (1986). The moving party "is entitled to judgment as a matter of law" when the non-moving party fails to make an adequate showing on an essential element for which he has the burden of proof at trial. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 804 (1999). To overcome a motion for summary judgment, the non-moving party "may not rely merely on allegations or denials" but must "set out specific facts showing a genuine issue for trial." Fed. R. Civ. Pro. 56(e). Although a court may only consider "facts that would be admissible in evidence," id., parties do not have to "produce evidence in a form that would be admissible at trial," Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

IV. DISCUSSION

Lopez asserts claims for racial discrimination and retaliation in violation of Title VII of the Civil Rights Act, as amended, 42 U.S.C. §§ 2000e-200e-17, and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. §§ 951-963 ("PHRA"). Because Title VII and the PHRA require the same analysis, I will only discuss Lopez's claims under Title VII. See Goosby v. Johnson & Johnson Med., ...


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