The opinion of the court was delivered by: O'neill, J.
On March 13, 2009, plaintiff Kuriakose T. Joseph filed an amended complaint against defendant Department of Environmental Protection of the Commonwealth of Pennsylvania asserting claims of employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Before me now are defendant's motion for summary judgment, Joseph's opposition, defendant's reply and plaintiff's sur-reply. For the reasons set forth below, I will grant defendant's motion for summary judgment.
On September 6, 2007, I granted defendant's motion to dismiss Joseph's Pennsylvania Human Rights Act claim and federal § 1981 claim on the grounds of sovereign immunity. I also granted defendant's motion to dismiss Joseph's Title VII claim because his employment with defendant terminated on March 4, 2005 and Joseph filed his EEOC charge February 10, 2006 which was outside the applicable 300-day limitations period. The Court of Appeals vacated my Order dismissing Joseph's Title VII claim as well as my Order denying reconsideration of that dismissal and remanded the action. Joseph then filed an amended complaint attaching the EEOC charge questionnaire dated December 27, 2005. On April 15, 2009, in light of the Supreme Court's opinion in Federal Express Corp. v. Holowecki, -- U.S. --, 128 S.Ct. 1147, 170 L.Ed. 10 (2008), I denied the defendant's motion to dismiss Joseph's Title VII claim.
Joseph is an adult male born in India. His national origin is Indian and his race is Asian Indian. He reads and comprehends English very well, but his spoken English is very poor. He holds a Bachelor of Science degree in Chemistry from India, a Master's degree from the University of Missouri in Analytical Chemistry, and a Ph.D. in Analytical Chemistry from Purdue University. He wrote his doctoral thesis while at Penn State University, completed a two-year post-doctorate at Georgia Institute of Technology in Atlanta and has published articles in the field of chemistry. During his career, he worked as a senior research scientist for Atofina Chemicals, Inc. and had prior experience with EPA methodology.
The events leading to this lawsuit began with Joseph taking the Pennsylvania Civil Service Exam for Chemist 1 and 2 positions in April 2004. At the end of July/beginning of August 2004, Joseph was interviewed for a limited term Chemist 1 position by Chemist 4 Lisa Wilt, Section Chief of the Organic Chemistry section within DEP's Bureau of Laboratories; her supervisor, Michael Webb participated in the interviews with the candidates and discussed each candidate with her prior to making her selection. The open position was under Wilt's supervision. Wilt and Webb also interviewed four other candidates for the position. Joseph was hired on October 18, 2004. Wilt hired Joseph because of "his years of experience in the laboratory; the fact that he held a Ph.D. in analytical chemistry; that he had computer knowledge. And all of those things would mean that Mr. Joseph would require less on-the-job training than others that did not have the experience and education." Wilt dep. 19. Joseph's position was originally scheduled to run through July, but the chemist for whom Joseph had been filling in returned early from Iraq and thus the position ended on March 4, 2005.
Joseph was employed by defendant for approximately four-and-one-half months. During this time period, he did not receive a performance evaluation because he was still in his six month probationary period. Chemists in Wilt's unit worked on the five GC/MS (gas chromatography/mass spectrometer) instruments in the lab room. One of Joseph's job duties in his limited term position (and part of the job description for each of the Chemist positions for which he interviewed) was troubleshooting an instrument. Joseph performed troubleshooting on the instruments assigned to him.
Initially, Joseph had to "qualify" to do routine analyses by completing an initial demonstration of competency ("IDC"). This is accomplished by analyzing standard solutions and demonstrating that the results meet DEP criteria. While it is disputed how long the IDC typically takes, it is undisputed that in the four-and-one-half months Joseph worked for DEP he did not achieve his IDC. The reason for his failure to achieve his IDC is disputed. Joseph argues the first and second instruments to which he was assigned both had problems preventing him from achieving results within the acceptable limits for the relative standard of deviation. Defendant argues that Wilt could not determine whether the issue was caused by an instrument problem or Joseph's technique, and presents disputed evidence that other Chemists in the lab were able to achieve accurate results on the instruments assigned to Joseph, indicating that those instruments did not have problems.
While Joseph was employed with defendant, his supervisor, Wilt, would go for walks with Ms. Tara Upadhyay and Martina McGarvey and the three would discuss supervisory problems. Wilt informed Upadhyay and McGarvey on these walks about Joseph's inability to achieve his IDC and that he was not "qualifying." McGarvey does not recall whether Wilt told her about any other chemists within the lab who had performance problems during the time Joseph worked for defendant.
While Joseph was employed in his limited-term position he received certain training. It is disputed whether Joseph received the same amount of training as other chemists received and whether the training was sufficient to permit him to qualify and complete his IDC.
2. Permanent Positions For Which Joseph Was Not Hired
Joseph interviewed for a total of eight permanent positions and bid on two positions for which he did not receive interviews; he was not hired for any of the permanent positions for which he interviewed or bid.
Before starting his limited-term position, Joseph interviewed for two permanent positions. In August 2004, Joseph went on the first of several interviews for permanent Chemist I and II positions with the DEP's Bureau of Laboratories. He received notice of his rejection of these positions via letters dated September 3, 2004 and October 5, 2004; both positions were filled by other candidates interviewed at the same time and by the same people as Joseph.
After beginning his limited term position, Joseph interviewed for six other Chemist positions with the DEP's Bureau of Laboratories. He received notice of his rejection of four of these positions via letters dated November 29, 2004, December 21, 2004, February 10, 2005 and March 16, 2005. It is disputed whether he received verbal notice of his rejection of Chemist I Position 112412 from Ms. Taruletta Upadhyay, his interviewer for that position, in February 2005. There is no evidence as to when Joseph received notice of his rejection for Chemist I Position 87188, which he interviewed for on March 4, 2005, coincidentally his last day in his limited term position. Each of these six positions were filled by other candidates interviewed at the same time as Joseph.
Joseph bid on two other positions for which he did not receive interviews and for which he was not hired. It is unknown when Joseph received notice that he would not be interviewed for these positions and/or that these positions were filled. Both of these positions were filled by other candidates; one successful candidate, Deborah Miller, began work on December 27, 2004 in the same section and room as Joseph; the other successful candidate, Bethany Piper, began work on January 22, 2005.
During the time period Joseph was employed by defendant, he waived eligibility for two other positions: a laboratory safety position and a traveling chemist position.*fn1 Joseph waived the two positions because he wanted a job involving chemical analysis and was not interested in traveling farther than his current 110-mile daily commute.
Joseph believes he was "denied similar terms, privileges and conditions of employment as other similarly situated employees on the basis of his race and national origin." Am. Comp. ¶ 21. Joseph also believes he was not hired for any of the positions in which he expressed ...