The opinion of the court was delivered by: Mitchell, M.J.
Presently before the court is Defendants', AutoZone, Inc.("AutoZone"), Mike Elliott, Gene Johnson, and Bill Whited, motion for summary judgment as to Plaintiff, Jamie Reyes's ("Reyes") claims for race, national origin, and age discrimination, hostile work environment, constructive discharge, and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., the Civil Rights Act of 1866, 42 U.S.C. §1981 ("Section 1981"), the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.C.S. § 951 et seq.*fn1 Reyes also alleges that the individual defendants, Elliott, Johnson, and White, aided and abetted AutoZone's violations of the PHRA. For the reasons set forth below, the motion for summary judgment (Docket No. 31) will be granted as to all defendants.
Under Fed.R.Civ.P.56 (c), "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law[,]" summary judgment should be granted. The threshold inquiry is whether there are any genuine factual issues that can be properly resolved only by a finder of fact because they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250(1986). A court may grant summary judgment if the non-moving party fails to make a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corporation v. Catrett, 477 U.S. 317, 322(1986). In making this determination, the non-moving party is entitled to all reasonable inferences. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008).
If the moving party meets its burden, the burden shifts to the nonmoving party to produce evidence of a genuine issue for trial. The party opposing summary judgment must set forth, "by affidavits or as otherwise provided in this rule," specific facts showing that there is a genuine issue for trial and "may not rest upon the mere allegations or denials of the ... pleading." Saldana v. Kmart Corporation, 260 F.3d 228, 232 (3d Cir. 2001)(citing Fed.R.Civ.P. 56(e); Matsushita Electric Industrial Company, Ltd., v. Zenith Radio Corporation, 475 U.S. 574 (1986); See also Fireman's Insurance Company of Newark, New Jersey v. DuFresne, 676 F.2d 965, 969 (3d Cir.1982) (Fed.R.Civ.P. 56(e) does not allow party opposing summary judgment to rely merely upon bare assertions, conclusory allegations, or suspicions). A court may not, however, make credibility determinations or weigh the evidence in making its determination. Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133, 150(2000).
A. Factual and Procedural History
AutoZone operates retail auto parts stores and sells to both commercial and walk-in customers. Reyes, a Hispanic male of Chilean origin, was hired by AutoZone in the spring of 1997 as a lead Commercial Specialist ("CS") and was eventually assigned to store #1217 located in South Florida. As the position title indicates, a CS services commercial customers and deliveries. In store #1217, Reyes worked fifty hours a week, ten of which were considered overtime hours.
In late 2000, Reyes's request for a transfer to Western Pennsylvania was approved by AutoZone and, in January 2001, Reyes began work as a Parts Sales Manager ("PSM") at store # 1811 in Rochester, Pennsylvania. In contrast to the fifty-hour week worked by Reyes in Florida, the PSM position in Rochester required only forty hours per week. Because of the loss of working hours, AutoZone considered Reyes's transfer to be a voluntary demotion. Reyes remained in the PSM position in Rochester until May of 2001 when he resigned to take employment with a competitor. Reyes also worked as a school bus driver for Student Transportation of America ("STA")from September 2003 to February 2007, except for a period between the summer and winter of 2004.
In April 2004, Reyes was rehired by AutoZone at store #1811 as a CS. An employee senior to Reyes, Eric Logan, also functioned as a CS at that store. In September 2004, Gene Johnson, store 1811's manager, returned from a medical leave to discover that the commercial sales at the store were declining and that at least four different commercial customers had lodged verbal complaints against Reyes. Johnson Decl., App. to Defs.' Mot. For Summ J., Ex 3.*fn2
During this same time period, Johnson was informed by his supervisor, Bill Whited, that a corporate level decision was made to eliminate Outside Sales Representative "(OSR") positions and that Johnson was expected to absorb OSR Donnie Calvert, an over fifty-year-old, white male, into the commercial department at store #1811. Due to the mandate to place Calvert in a management level position, Johnson and Whited decided to move Reyes to a PSM position to make room for Calvert. Although Reyes's salary remained the same, he considered the move to a PSM as a demotion.
In July 2005, Reyes requested a transfer to the new AutoZone store #3273 in Aliquippa, Pennsylvania. Reyes wanted the transfer because store # 3273 was closer to his home and he was interested in a CS position. Store #3273 did not have an operating commercial department at the time of its opening, however, the store manager, Mike Elliott, told Reyes he would keep him in mind if and when a CS position became available. Accordingly, when Reyes was transferred to store #3273, it was as a PSM .
William Blue, a thirty-eight-year old white male, was also hired at store #3273. While Reyes contended that Blue was hired as a CS, both Elliott and Whited testified that Blue was hired as a PSM. Blue was more experienced than Reyes and also held an Automotive Service Excellence ("ASE")certification. An ASE certification is not a requirement for a CS position with AutoZone, but certified employees are preferred. AutoZone offers some training to facilitate the ASE certification process in the form of study materials and a sample test, but, does not provide employees on-the-clock study time, nor does it offer the certification test on its premises. Reyes attempted to obtain an ASE certification, but he never earned the accreditation.
Beginning in late 2005 and into early 2006, Reyes alleges that Elliott began to unreasonably criticize his work performance. Reyes complained to AutoZone's Human Resources Department and to Whited about Elliott's alleged harassment.
Around this same time, Reyes penned two letters outlining his vision of his future at AutoZone. On January 13, 2006, Reyes wrote that in both in an effort to save AutoZone some money and to satisfy his obligations to creditors, he would be willing to work a reduced schedule of thirty-two hours. Later, on January 21, 2006, as part of an employee self-evaluation process, Reyes indicated that his goal was to hold a CS position and to receive continued promotions throughout the corporation.
In February 2006, Jay Spray ("Spray"), a thirty-three- year-old white male, was hired as a CS at store #3273. Spray had previously been working in a comparable position with a competitor in the area and was ASE-certified. The CS at store #3273 worked forty hours a week, usually from 8:00 a.m. to 5:00 p.m. On occasion, the CS was expected to work as early as 7:00 a.m. or as late as 7:00 p.m., but, not more than forty hours in a given week.
In the spring of 2006, Reyes requested a transfer to the AutoZone store in Kent, Ohio, near to where his fiancé was offered a job. Elliott informed Whited of Reyes's request and Whited, in turn, contacted AutoZone's Human Resources Department and the Ohio store manager communicating Reyes's interest in a CS position. Reyes was offered the position, but a few days before the transfer was to be effective, Reyes informed Whited that he could not accept the position in Ohio. Reyes remained as a PSM at store #3273.
In April 2006, Elliott was promoted and was no longer involved in personnel decisions relative to store #3273. In July 2006, store # 3723's new manager, Jason Jerome ("Jerome"), removed Spray from the CS position because of declining sales. Whited suggested that Jerome move Michael Dock, a twenty-five-year-old white male, from a PSM position to the CS slot vacated by Spray.
On or about August 2, 2006, Reyes resigned from AutoZone. On November 6, 2006, Reyes filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"). The charge was dismissed and Reyes was issued a Right to Sue letter on April 16, 2008. On June 20, 2008, Reyes filed the instant lawsuit alleging age, race, and national origin discrimination by AutoZone.
Under Title VII and the ADEA, a discrimination charge must be filed with the EEOC "within 180 days after the alleged unlawful employment practice occurred." 42 U.S.C. §2000e-5(e)(1); 29 U.S.C. § 626 (d)(1)(A). When the claimant also lodges a complaint with a companion state agency, in this instance, the PHRC, the filing period before the EEOC is extended to 300 days from the time of the employment practice. Ruehl v. Viacom, Inc., 500 F.3d 375, 382-83(3d Cir. 2007). A claim under the PHRA must be brought within 180 days of the alleged act of discrimination. 43 P.S. § 959 (h). The period within which administrative claims must be filed is akin to a statute of limitations; therefore, alleged discriminatory activity occurring beyond the filing period generally is not actionable. National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 120 (2002).
Reyes filed his claims with the EEOC and the PHRC on November 6, 2006. As such, only those practices allegedly unlawful under Title VII or the ADEA which occurred within the prior 300 days, or after January 10, 2006, are actionable. For a claim to remain viable under the PHRA, the complained-of discrimination must have occurred after May 10, 2006. Under these date constraints, the following of Reyes's claims are time-barred: 1) Title VII, ADEA, and PHRA claims related to Reyes's alleged demotion in November 2004 when he was moved to the PSM position at store #1811; 2) Title VII, ADEA, and PHRA claims concerning Blue's alleged promotion (over Reyes) in the summer of 2005 ; and, 3) PHRA claim that he was denied a promotion in 2006 when Spray was hired in the CS position. What remains to be adjudicated are Reyes's: 1) Section 1981 claim*fn3 that he was unfairly demoted from CS to PSM in November 2004; 2) Section 1981 claim that Blue was unjustifiably selected as a CS over him; 3) Title VII, ADEA, and Section 1981 claims related to Spray's selection as a CS; and, 4) Title VII, ADEA, Section 1981, and PHRA claims regarding Dock's selection as a CS in July 2006.
In addition, Reyes's complaint that AutoZone's discriminatory conduct created a hostile work environment is not completely defeated by application of the relevant statutes of limitations. In Morgan, the Supreme Court distinguished between discrete acts of unlawful discrimination which must be brought within the requisite limitations period and those acts that, although time-barred, may be aggregated to make out a hostile work environment claim. Id. at 113-115. Relevant to Reyes's particular claims, the Court of Appeals for the Third Circuit has identified demotion, failure to promote, and wrongful discipline as distinct acts of discrimination and observed that such "' discrete discriminatory acts are not actionable if time-barred, even when they are related to acts alleged in timely filed charges.'" O'Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006)(quoting Morgan, 536 U.S. at 113). However, an employee can raise a legitimate hostile work environment claim when he contends that the workplace discrimination was pervasive and that the cumulative effects of individual acts provide the basis for the claim. Morgan, 536 U.S. at 115.
Applying the Morgan rubric to Reyes's allegations, his claims that his was demoted in November 2004 and that he was denied promotions in 2005 and February of 2006 are discrete acts which occurred outside the applicable limitations period and cannot be aggregated to defeat their untimeliness. Reyes's hostile work environment claim based upon the alleged harassment of the AutoZone management triumvirate of Whited, Elliott, and Johnson, however, does not suffer a similar fate as it conceivably complains of repeated discriminatory conduct permeating the workplace.
Accordingly, Reyes's hostile work environment claim, limited to the allegation of continued harassment because of his race, national ...