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Nelson v. DeVry

April 23, 2009

ANTHONY NELSON, ET. AL., PLAINTIFFS,
v.
DEVRY, INC., ET AL., DEFENDANTS.



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

MEMORANDUM

Before the Court is Defendant DeVry University's ("DeVry") Motion for Summary Judgment (Docket No. 50). Because there are no genuine issues of material fact and DeVry is entitled to judgment as a matter of law, the motion will be granted.

I. Facts and Procedural Posture*fn1

DeVry is a corporation that operates higher education institutions in multiple locations, including campuses in New Jersey and Pennsylvania. DeVry requires that individuals seeking employment with the company complete written applications prior to being hired. These applications ask applicants to disclose if they have ever been convicted of a felony or misdemeanor. DeVry also conditions employment upon the successful completion of an independent background check of applicants, and DeVry contracts with a third-party to conduct those checks on its behalf.

Plaintiff Anthony Nelson ("Nelson") commenced his employment with DeVry in May of 1999. Nelson is African-American. Nelson received multiple promotions over time, eventually becoming an Assistant Director of IT responsible for all of DeVry's IT departments in Pennsylvania. Prior to commencing his employment, Nelson completed a written application. By signing and completing the application, Nelson represented that all of the information entered on the application was true and correct and that he understood that any false statements or omissions of information would be reason for discharge. In response to the question on the application regarding whether Nelson had ever been convicted of a felony or misdemeanor, Nelson replied "No." DeVry's background check of Nelson did not reveal a criminal background. However, Nelson had previously been convicted of wrongful impersonation and theft (1990/91), simple assault (1991), shoplifting (1991/93), and disorderly persons and obstruction of justice (1997). Nelson served a year of probation for the obstruction of justice conviction.*fn2 At no time did Nelson ever inform DeVry that he had a criminal history.

Plaintiff Kenneth Jones ("Jones") commenced his employment with DeVry in July of 2002. Jones is African-American. Jones was a first shift maintenance technician who had keys and access to every building on DeVry's Fort Washington, Pennsylvania campus. In June of 2004, a woman complained that Jones was harassing her via his work computer and telephone.

Devry investigated the matter and concluded the allegations were true. Although DeVry could have terminated Jones, it instead chose to issue written discipline. In July 2004, DeVry placed Jones on paid administrative leave after Jones disclosed that he was facing assault charges in state court raised by the same woman who accused him of harassing her. In September 2004, DeVry permitted Jones to return from his paid leave even though his legal issues were not fully resolved. Prior to commencing his employment, Jones completed a written application. By signing and completing the application, Jones represented that all of the information entered on the application was true and correct and that he understood that any false statements or omissions of information would be reason for discharge. In response to the question on the application regarding whether Jones had ever been convicted of a felony or misdemeanor, Jones replied "No." DeVry's background check of Jones did not reveal a criminal background. However, Jones had been convicted of disorderly conduct in 1989.*fn3 At no time did Jones inform DeVry that he had been convicted of disorderly conduct.

DeVry has an Equal Opportunity Employment Policy and a Policy Against Harassment and Retaliation, as well as a policy that all employment with DeVry was at-will and could be terminated at any time for any reason. These policies are memorialized in the Employee Handbook.*fn4 DeVry's Equal Opportunity Employment Policy provides that DeVry shall treat all employees and applicants for employment without unlawful discrimination as to, inter alia, race, in all decisions (including termination and conditions of employment). DeVry's Policy Against Harassment and Retaliation provides that DeVry prohibits harassment as to, inter alia, race, and that DeVry prohibits retaliation against any employee that complained of harassment. DeVry considered violations of its harassment policy as well as violations of any local, state or federal laws to be gross misconduct which could result in immediate discharge.

On August 25, 2005, DeVry received a shipment of seven laptops at its Fort Washington campus. The laptops were placed in a locked server room located in the IT office. On August 31, 2005, Bryan Roth ("Roth"), a laptop support specialist, discovered that three of the laptops were gone. The missing laptops were reported to DeVry.*fn5 DeVry notified the Upper Dublin Police Department of the thefts, and they initiated an investigation. DeVry also commenced its own investigation. Director of Human Resources Deborah Maher ("Maher") (who was based at DeVry's Oak Brook, Illinois headquarters) directed Kim Chernosky, the Human Resources Manager at the Fort Washington, Pennsylvania campus, to conduct DeVry's own investigation. As part of the investigation, Chernosky drew up a list of eight employees who had keys to the secure server room where the laptops had been stored. The individuals on the list included Barbara Hurley-Yetman, President of the Fort Washington campus; Dennis Matthews, Dean of Finance and Accounting; Gary Hinchee, Facility Manager and Jones's supervisor; Nelson; Jones; Roth; Victor Tente, LAN Technician; and Sebastian Hayes, a temporary facilities department assistant. Hayes, Nelson and Jones are African-Americans; the remaining five individuals are Caucasian.

Maher investigated all of the suspects. She learned that Hurley-Yetman, Matthews and Hinchee had been out of town at the time of the theft, did not have knowledge that the laptops had been received and/or did not know that the laptops had been stored in the server room, Maher removed these individuals from the list of suspects. Accordingly, there were five remaining suspects -- Tente, Roth, Hayes, Nelson, and Jones. All of the remaining employees were questioned. Then, based upon a number of factors, Maher narrowed the focus of the investigation to Tente and Roth. Based upon further questioning of Tente and Roth, however, Maher concluded that it was unlikely that either was involved in the theft of the laptops. Nevertheless, Maher directed Chernosky to provide the names of the five remaining employees who had keys to the server room, including Roth and Tente, to the investigating officer -Detective Kenneth Whisler ("Whisler") -- from the Upper Dublin Police Department.*fn6

After obtaining the names of the five remaining suspects who were employees, Whisler informed DeVry that he had discovered that two of the employees had been convicted of crimes.

The two employees were Nelson and Jones. Maher reviewed Nelson and Jones's employment applications and saw that neither had disclosed a criminal background. Maher directed Chernosky to interview both men and ask them about the information related to their criminal pasts received from Whisler. Chernosky conducted these interviews in September of 2005.

During Chernosky's interview with Nelson, Nelson refused to answer questions regarding his criminal background.*fn7 During Chernosky's interview with Jones, Jones told her that he didn't think his criminal background was any of her business.*fn8 After Chernoksy questioned Jones, Jones filed a Charge of Discrimination with the Pennsylvania Human Rights Commission alleging race discrimination. Chernosky reported the results of her interviews with Jones and Nelson to Maher. Maher decided to terminate Jones and Nelson for falsifying their employment applications.*fn9 Chernosky advised both Jones and Nelson of their terminations in separate termination meetings on October 27, 2005. Neither Nelson nor Jones raised any complaints of discrimination in their respective termination meetings. Jones and Nelson both concede that the reason provided to them for their terminations was that they had falsified their employment applications.*fn10

Following their terminations, Plaintiffs commenced the instant action in which they claim that they were discriminated against on the basis of their race. In his deposition, Nelson claimed that his termination had to be discriminatory because DeVry terminated two African-Americans who had access to the secure room where the laptops were stored. In his deposition, Jones asserted that DeVry discriminated against him based on his race because just two African-Americans were terminated for falsifying information on their employment application. However, Jones admitted that he does not know the extent to which other Caucasian employees were questioned as part of DeVry's investigation into the theft of the ...


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