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Cunningham v. Enterprise Rent-A-Car Co.

March 1, 2010


The opinion of the court was delivered by: David Stewart Cercone United States District Judge



Plaintiff, Michael E. Cunningham ("Cunningham" or "Plaintiff"), filed a complaint against Defendants, Enterprise Rent-A-Car Company ("Enterprise") and Enterprise Rent-A-Car Company of Pittsburgh ("Enterprise Pittsburgh")(collectively"Defendants"), alleging: (1) violation of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq., (2) retaliation under the ADA; (3) violation of his rights under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, and the Civil Rights Act of 1991 ("Title VII"), 42 U.S.C. §2000e-1, et seq. the Age Discrimination in Employment Act of 1967 (the "ADEA"), 29 U.S.C. § 621, et seq., and (4) a Title VII claim based upon a theory of reverse gender discrimination. Plaintiff's claims arise out the termination of his employment by Enterprise Pittsburgh. Defendants have filed a motion for summary judgment, Plaintiff has responded and the motion is now before the Court.

Defendants have filed a Concise Statement of Material Facts in support of their motion for summary judgment. Many of Plaintiff's responses to Defendants' statement of facts, however, are inappropriate. The Local Rules of the United States District Court for the Western District of Pennsylvania require that Plaintiff file a responsive "concise statement which responds to each numbered paragraph in the moving party's Concise Statement of Material Facts by . . . admitting or denying whether each fact contained [therein] . . . is undisputed and/or material . . . setting forth the basis for the denial if any fact . . . is not admitted in its entirety (as to whether it is undisputed or material), with appropriate reference to the record . . ." See LR 56.1(C)(1)(a) & (b). In many instances, Plaintiff "objects" to the materiality of the statement of fact without denying or admitting the factual averment. Moreover, Plaintiff's responses include editorials and improper argument that are irrelevant to, and/or outside the scope of, the specific factual statement. In addition, several of Plaintiff's citations to the record do not support either his denial, objection or editorial. Material facts set forth in a moving party's concise statement of material facts will be deemed admitted for the purpose of deciding the motion for summary judgment "unless specifically denied or otherwise controverted by a separate concise statement of the opposing party." See LR 56.1(E).


Enterprise Pittsburgh, a wholly owned subsidiary of Enterprise*fn1, is a Pennsylvania Corporation involved in the rental, sale and leasing of automobiles and trucks in the western Pennsylvania area. Defendants' Concise Statement of Material Facts ("Def. CSMF") ¶¶ 1 & 4. In September of 1989, Plaintiff became employed as a City Rental Manager for Enterprise Pittsburgh. Def. CSMF ¶ 5. As City Rental Manager, Plaintiff was initially responsible for Enterprise Pittsburgh's daily rental business. Def. CSMF ¶ 6. During Plaintiff's employment with Enterprise Pittsburgh, daily rentals made up the largest segment of its business and accounted for the majority the revenues. Def. CSMF ¶ 7.

At the time of his termination, Plaintiff held the position of Group Rental Manager for Enterprise Pittsburgh. Def. CSMF ¶ 25. Plaintiff reported to Timothy E. Nettles ("Nettles"), President and General Manager of Enterprise Pittsburgh. Def. CSMF ¶ 26. Nettles is in charge of the overall operations of Enterprise Pittsburgh and occupies the highest level of management within the company. Def. CSMF ¶ 27*fn2. As Group Rental Manager, Plaintiff was within the second highest level of management at Enterprise Pittsburgh, was responsible for managing the daily rental business, and was accountable for the overall performance of over thirty (30) of Enterprise Pittsburgh's branch offices. Def. CSMF ¶¶ 29 & 30*fn3 . Plaintiff agrees that his position required the exercise of sound judgment and discretion in carrying out his duties. Plaintiff's Response to Concise Statement of Material Facts ("Pl. RCSMF") ¶ 33.

On November 18, 2006, Enterprise Pittsburgh sponsored a holiday party at the Westin Convention Center Hotel in Pittsburgh (the "Westin"). Def. CSMF ¶ 73. Prior to the holiday party, Nettles sent an e-mail dated November 15, 2006, to supervisory employees including Plaintiff, setting forth his expectations regarding employee conduct at the party. Def. CSMF ¶ 74; Pretrial Stipulation ¶ 15. Plaintiff received the e-mail which stated, inter alia, that the party was a "business function, and everyone is expected to conduct themselves accordingly." Id.

Plaintiff and his wife arrived by taxi cab at the Westin for the party at approximately 6:00 p.m. on November 18, 2006. Def. CSMF ¶ 83. Upon arrival at the party, Plaintiff and his wife were given registration packets which contained three (3) drink tickets for each of them. Def. CSMF ¶ 84. Alcoholic beverages required one (1) drink ticket, while nonalcoholic drinks were one-half of a ticket. Pretrial Stip. ¶ 16. Plaintiff admits that he obtained additional drink tickets from Karan Koch ( now Karan Miller, hereinafter "Miller"), an employee of Enterprise Pittsburgh who was distributing the tickets at registration, and from employees Darrin Wissinger and Rush Line. Cunningham Deposition pp. 195-196.

At some time that evening, Plaintiff and his wife went to the bar at the Original Fish Market, a restaurant located adjacent to the Westin Convention Center. Cunningham Depo. P. 204. While at the bar, it is alleged that Plaintiff chased Jennifer Wertz ("Wertz"), another Enterprise Pittsburgh employee, and poured beer down the front of her dress. Wertz Deposition p. pp. 11-13; Affidavit of Karan Miller ¶ 12.

Later that same evening, Plaintiff was involved in an argument with a taxi driver after the driver mistakenly began driving Plaintiff and his wife to Edgewood instead of Nevillewood, and then returned the Cunninghams to the Westin. Def. CSMF ¶¶ 93, 94, 95 & 97. Plaintiff admits that when he returned to the Westin he was extremely angry with the cab driver and swore at him. Def. CSMF ¶ 101. The incident was witnessed by several Enterprise Pittsburgh employees, two of which attempted to intervene and remove Plaintiff from the situation, but Plaintiff threw their arms off of him. Def. CSMF ¶¶ 100, 103-106; Cunningham Deposition pp. 212, 218-219. Another taxi cab arrived, Plaintiff and his wife got in the cab and went home. Def. CSMF ¶ 100, 110; Cunningham Deposition pp. 212.

On November 20, 2006, the Monday following the holiday party, Nettles was informed of Plaintiff's conduct at the Westin by several employees. Def. CSMF ¶¶ 117, 118 &119. Dan Friedman ("Friedman") another Enterprise Pittsburgh Group Rental Manager, detailed Plaintiff's incident with the taxi driver for Nettles, and gave a written account of the events. Def. CSMF ¶ 120; Friedman Affidavit ¶¶ 18 & 19; Exhibit A to Friedman Affidavit; Nettles Deposition pp. 187-188. Friedman indicated to Nettles that he thought Plaintiff's conduct was "bad" and that such conduct was a terminable offense. Def. CSMF ¶¶ 121, 122; Nettles Deposition pp. 188-189.

Nettles attempted to call Plaintiff, but Plaintiff was hunting. Def. CSMF ¶ 123. Nettles asked Trisha Lansberry ("Lansberry"), Enterprise Pittsburgh's Human Resources Manager, to gather additional information to substantiate the initial reports regarding Plaintiff's conduct on the evening of November 18, 2006. Def. CSMF ¶ 124. Several of the witnesses contacted by Lansberry reported that Plaintiff engaged in shocking and outrageous conduct toward the taxi cab driver, including yelling obscenities at him. Def. CSMF ¶ 126 (citing several affidavits).

On November 21, 2006, Nettles had a telephone conversation with Plaintiff regarding Plaintiff's behavior after the holiday party on November 18, 2006. Def. CSMF ¶¶ 135-138. One day after his conversation with Nettles, Plaintiff sent Nettles an e-mail stating: "After talking to my family and friends we have come to the conclusion I have a drinking problem and will seek help. I have called the help line and will follow their instructions." Def. CSMF ¶ 146. Plaintiff, however, did not call Magellan Health Services ("Magellan"), the company that administers Enterprise Pittsburgh's employee assistance program, until after his e-mail to Nettles. Def. CSMF ¶¶ 148-149. Plaintiff spoke with a Magellan counselor, who made a written record of the call, indicating that he became intoxicated and acted out at the company's holiday party. Def. CSMF ¶¶ 150-151. The Magellan counselor recommended that Plaintiff be evaluated face to face, but Plaintiff declined to receive any services. Def. CSMF ¶ 153.

On December 1, 2006, Plaintiff met with Nettles, Lansberry and David Litzau, a Enterprise Pittsburgh Controller. Def. CSMF ΒΆ 171. At the meeting, Nettles terminated Plaintiff's employment with Enterprise Pittsburgh because of his behavior during ...

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