The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is Defendant, Lowe's Homes Centers, Inc.'s (Lowe's), motion for summary judgment. (Doc. 14.) The issues have been briefed and the motion is ripe for disposition. For the reasons that follow, Defendant's motion will be granted.
Plaintiff, Gary J. Dennis, was a shelf stocker who worked the night shift at Lowe's in Harrisburg, Pennsylvania. (Def.'s Statement of Material Facts ("SMF") ¶ 1.)*fn1 On March 27, 2006, while working at Lowe's, Plaintiff and a co-worker engaged in some sort of physical altercation. (SMF ¶ 3.) The severity of the encounter is disputed, but the fact that a physical altercation of some sort took place during work hours on Defendant's property is not. (SMF ¶¶ 3, 4.) Some individuals described the event as a fight, while others called it horseplay.*fn2 (SMF ¶¶ 6, 7, 9.) There was surveillance video taken of the event, which apparently shows Plaintiff and another individual grabbing each other and hitting the ground. (SMF ¶ 12.) This video was reviewed by Plaintiff's supervisors, including Keith Kollar, the store manager, and Linda Phillips, the Human Resource Manager. (SMF ¶ 11.) When Plaintiff arrived at work the next day, he spoke with Kollar and Phillips and admitted that he was wrestling with his co-worker and they both had fallen to the floor. (SMF ¶ 13.) At this time, Kollar informed Plaintiff that his employment was being terminated. (SMF ¶ 14.) Plaintiff was fired for "participating in a physical altercation with a co-worker during his shift." (SMF ¶ 15.) The co-worker, Luis Arroyo, was also terminated because of this incident. (SMF ¶ 16.) Lowe's has a strict policy against physical altercations in the workplace, employees are subject to immediate termination for engaging in physical altercations while at work. (SMF ¶ 2.)
The next month, Kollar hired the first shelf stockers since Plaintiff and Mr. Arroyo had been fired. (SMF ¶¶ 17, 18, 20.) Four employees were hired, three were African American and one was Hispanic. (SMF ¶ 19.)
Plaintiff, in his deposition testimony and in his complaint, alleges that there were other incidents where non-male and/or non-African American individuals engaged in physical altercations but were not fired. (SMF ¶ 21.) Plaintiff provided no evidence of these incidents besides his testimony which is vague and provides no actual dates or details. Plaintiff also claims that months before he was fired he heard Kollar use the "n word" during a phone conversation but could not provide any context for the use of the word. (SMF ¶ 22; Dep. Tr. Dennis, at 46:18.)
On September 19, 2008, Plaintiff filed this pro se complaint. (Doc. 1.) On July 20, 2009, Defendant filed a motion for summary judgment, and on July 22, 2009, a supporting brief. (Docs. 14, 17.) No timely brief in opposition was filed, and, on August 14, 2009, the court issued an order to show cause why the motion should not be deemed unopposed. (Doc. 19.) A response was filed by Plaintiff on August 24, 2009, (Doc. 20), to which Defendant replied on September 8, 2009, (Doc. 21).
"In an employment discrimination case, the burden of persuasion on summary judgment remains unalterably with the employer as movant. The employer must persuade [the court] that even if all of the inferences which could reasonably be drawn from the evidentiary materials of record were viewed in the light most favorable to the plaintiff, no reasonable jury could find in the plaintiff's favor." Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 362 (3d Cir. 2008). Summary judgment is proper 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. P. 56(c); accord Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 248. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322-23.
" 'Such affirmative evidence -- regardless of whether it is direct or circumstantial -- must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.' " Saldana, 260 F.3d at 232 (quoting Williams ...