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Dunlap v. Merritt Hospitality

March 18, 2009


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


A hotel employee who was discharged after engaging in a fight while on duty alleges that he was terminated because of his race. Mr. John Dunlap was a Merritt Hospitality employee working at the Westin Hotel in Philadelphia, Pennsylvania. On August 27, 2007, while assisting the hotel's security personnel in moving a barricade, Mr. Dunlap found himself in a violent altercation with members of "the public." He was fired. Mr. Brian Fraim, one of Mr. Dunlap's co-workers, was allegedly involved in the confrontation as well but was not fired, suspended, or otherwise disciplined. Mr. Dunlap is African-American; Mr. Fraim is Caucasian.

Mr. Dunlap filed this Section 1981 claim*fn1 alleging that he was discharged because of his race. (See generally Compl. (Document #1) (discussing the scope and facts of Mr. Dunlap's claim).) Merritt has moved for summary judgment on the primary grounds that Mr. Dunlap has failed to establish his prima facie case. (See Def.'s Mem. for Summ. J. (Document #22).) Upon consideration of the parties' memoranda, I will grant the motion.

I. Background

The parties agree on many of the facts in this case. Because Mr. Dunlap's response to Merritt's Statement of Undisputed Facts mostly consists of unqualified admissions, the following narrative is largely drawn from the defendant's document. Where Mr. Dunlap has qualified his admission or otherwise denied Merritt's statement, however, his version of the facts (as the non-movant) is presented.

Mr. Dunlap was hired by Merritt in November 2005 to work as a Banquet House Attendant at the Westin Hotel in Philadelphia, Pennsylvania. (Def.'s Statement of Undisputed Facts ¶ 1 (Def.'s Ex. E).) His primary duties were to "[set] up and [perform] various banquet functions at the hotel including private parties and weddings." (Id.) His day-to-day duties would sometimes vary depending on the hotel's needs. (Id. ¶ 2.) Previously, he worked as a "Service Express Attendant" and as "Security." (Id.) As a Service Express Attendant, Mr. Dunlap reported to Mr. Adi Altman, and his duties included "greeting guests at the front door of the hotel, valeting cars, and bringing luggage to the bell staff." (Id. ¶¶ 3--4.)

a) Mr. Dunlap's training and understanding of corporate policies

Mr. Dunlap received formal and on-the-job training as a Merritt employee. (Id. ¶ 5.) These also included guest service and security issues. (Id.) On the guest service front, he was trained "to be self-aware and manage his emotions when dealing with guests."*fn2 (Id. ¶ 6.) He was instructed that yelling and screaming were improper when dealing with an unruly guest. (See John Dunlap Dep. 49:11--24, Nov. 13, 2008 (stating that Mr. Dunlap knew it was inappropriate to use threats and vulgar language with a guest) (Pl.'s Ex. A).) The scope of Mr. Dunlap's training on security issues, however, was limited and did not include "any training specifically geared towards security personnel, such as restraints, holds, crowd control or similar topics." (Pl.'s Resp. to Def.'s Statement of Undisputed Facts ¶ 5 (Document #31).)

Mr. Dunlap knew and understood Merritt's workplace policies. He knew that the Rules of Conduct contained in the Employee Handbook expressly prohibited employees from "being discourteous, unprofessional, or verbally or physically abusive towards other associates, guests and other individuals." (Def.'s Statement of Undisputed Facts ¶ 10.) Mr. Dunlap was aware of the Workplace Violence Policy, which expressly prohibited any acts or threats of violence or the possession of weapons of any kind. (Id. ¶ 12.) He was also familiar with the company's Progressive Discipline Policy, which described the disciplinary actions the company might take against employees. (Id. ¶ 14.) This policy included a provision allowing for Merritt to terminate an employee for a first offense.

Mr. Dunlap signed an acknowledgment that he read and understood all these policies. (Id. ¶ 13.)

b) The incident occurring on August 27, 2007

On August 27, 2007, the New York Mets baseball team was staying at the hotel. (Id. ¶ 19.) A crowd of fans and autograph seekers formed on the sidewalk in front of the hotel and by the team's charter bus. (Id. ¶ 20.) Sterling James and Jewel Chowdhury, two of the hotel's in-house security personnel, were on duty.

When sports teams stayed at the hotel, it was not uncommon for employees in other departments to be temporarily reassigned to assist security personnel. (Id. ¶ 21.) At the time, Mr. Dunlap was working and dressed as a Service Express Attendant at the front door. (Id. ¶ 24). Mr. Altman asked him to help move a metal barricade onto the sidewalk in front of the hotel to create a path for the team. (Id. ¶ 28). As Mr. Dunlap began to move the barricade, he asked the gathered fans to step back. (Id. ¶ 30.) One of the fans responded to Mr. Dunlap that if he hit him with the barricade, he was "going to [expletive] [Mr. Dunlap] up." (Id. ¶ 31.) Mr. Dunlap responded in kind and threatened to "knock [the fan] out." (Id. ¶ 32.) A second fan got involved and told Mr. Dunlap, "I bet you won't knock me the [expletive] out." (Id. ¶ 33; Dunlap Dep. 49:15--17.) Mr. Dunlap responded in the same way and said, "[I]f you put your hands on me, I'm going to knock you the [expletive] out." (Def.'s Statement of Undisputed Facts ¶ 34; Dunlap Dep. 49:17--18.) By this point, the Mets' charter bus driver and Mr. Altman had come over to break up the confrontation. (Def.'s Statement of Undisputed Facts ¶¶ 37--38.)

Unfortunately, words gave way to action when one of the fans punched Mr. Dunlap in the face. (Id. ¶ 39.) Mr. Dunlap then ran across the hotel driveway back to the front door; he estimated that he was then approximately twenty feet away from the fans. (Dunlap Dep. 53:3--20.) From a storage closet by the front door, he retrieved a three-to-four foot metal rod. (Def.'s Statement of Undisputed Facts ¶ 40.) Mr. Dunlap felt threatened by the fans and was motivated by a desire to defend himself. (Pl.'s Resp. to Def.'s Statement of Undisputed Facts ¶ 40.) Messrs. Altman and Chowdhury tried to restrain Mr. Dunlap on the driveway, but he ran around them back to the sidewalk. (Def.'s Statement of Undisputed Facts ¶¶ 43--44.) Mr. Dunlap ran around the charter bus, and as he rounded the front of the bus, he saw the fan who had punched him standing a short distance from him. (Id. ¶ 45.) The fan had been running in Mr. Dunlap's direction, but when he saw Mr. Dunlap, he turned to run away. Mr. Dunlap gave chase and hit the fan in the back with the rod. (Id. ¶¶ 46--47.)

The fan turned around and began to wrestle Mr. Dunlap. (Id. ¶ 50.) Other Mets fans joined in this struggle, and Messrs. Altman, Fraim, and James came over to break up the fight. (Id. ¶ 51.) They were able to pull Mr. Dunlap away from the fracas, but he then ran back to the storage closet by the hotel's front door to retrieve a second metal rod. (Id. ¶ 54.) Mr. Fraim was able to restrain Mr. Dunlap from re-engaging the fans and placed the rod back into the storage closet. (Id. ¶¶ 56--57) Mr. Dunlap went back to the storage closet, retrieved the same metal rod, and began to pace back and forth in the hotel driveway. (Id. ¶ ...

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