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Ade v. Kidspeace Corp.

March 10, 2010


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



This case arises out of plaintiff Kunle Ade's termination in December 2007 from his position as a child care counselor with defendant KidsPeace Corporation ("KidsPeace"). Plaintiff asserted the following claims in his First Amended Complaint: (1) race and national origin discrimination under Title VII of the Civil Rights Act of 1964 and 1991, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. ("PHRA"), and 42 U.S.C. § 1981 (Counts I, II, and IV, respectively); (2) retaliatory termination under 42 U.S.C. § 1981 (Count V); and common law wrongful termination and breach of implied contract (Count III). This Court has jurisdiction over plaintiff's Title VII and Section 1981 claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over related state law claims pursuant to 28 U.S.C. § 1367.

Presently before the Court is defendant's Motion for Summary Judgment. For the reasons that follow, defendant's Motion for Summary Judgment is granted.


Defendant KidsPeace Corporation ("KidsPeace") is a private charity that runs a psychiatric hospital, residential treatment programs, educational services, and community-based programs which serve the behavioral and mental health needs of children and adolescents. (Defendant's Statement of Undisputed Material Facts ¶¶ 1, 2; Plaintiff's Statement of Disputed Facts ¶¶ 1-2) (hereinafter, "Def.'s Stmt." and "Pl.'s Stmt.") As part of its program, KidsPeace runs several homes located in Lehigh Valley, Pennsylvania, which house adolescents with behavioral and emotional difficulties. (Def.'s Stmt. ¶ 3; Pl.'s Stmt. ¶ 3.)

Plaintiff Kunle Ade is an African-American male, born in Liberia, West Africa. (Def.'s Stmt. ¶ 4; Pl.'s Stmt. ¶ 4.) On January 15, 2006, Ade was hired by KidsPeace to work as a late night child care counselor at the Patriot Center, a collection of residential homes in Orefield, Lehigh County. (Def.'s Stmt. ¶¶ 4,6; Pl.'s Stmt. ¶¶ 4,6.) In general, late night counselors are tasked with providing security and support for residential clients during overnight hours.(Def.'s Stmt. ¶ 5; Pl.'s Stmt. ¶ 5.) In April 2006, plaintiff also began working as a part-time member of the therapeutic support staff at the Patriot Center. (Def.'s Stmt. ¶ 9; Pl.'s Stmt. ¶ 9.)

At the time of his hire, KidsPeace provided Ade with an employee handbook. (Def.'s Stmt. ¶¶ 10-11; Pl.'s Stmt. ¶ 10-11.) Ade signed several acknowledgment forms attesting to his receipt of the handbook. (Def.'s Mot. Exs. D, E.) In its introductory section, the handbook states, in pertinent part, "[This handbook] is not intended to be a contract of employment or a complete statement of KidsPeace policies and procedures... No information contained in this handbook, in any policy and procedure manual, or in any employment interview constitutes an expressed or implied contract of employment." (Def.'s Mot. Ex. F; Pl.'s Trial Ex. 25.) The handbook goes on to set forth various KidsPeace policies regarding vacation and personal days, other employee benefits, and standards of conduct for employees. (Def.'s Mot. Ex. F; Pl.'s Trial Ex. 25.) The handbook and separate KidsPeace Harassment Policy provide that allegations of harassment will be "investigated promptly," and that misconduct, as defined by the policy, may result in disciplinary action, including immediate termination of employment. (Def.'s Mot. Exs. F, G; Pl.'s Trial Ex. 25.) According to the Harassment Policy, investigations "may include individual interviews with the parties involved, and where necessary, with individuals who may have observed the alleged conduct or may have other relevant knowledge." (Def.'s Mot. Ex. G.)

Ade was initially assigned to work under Jane Marino, a Supervisor at KidsPeace, and Donna Doran, an Assistant Supervisor. (Def.'s Stmt. ¶¶ 18, 20; Pl.'s Stmt. ¶¶ 18, 20.) On or about Ade's third day of work in January 2006, Marino introduced Ade to Pam Peters. (Def.'s Stmt. ¶ 19; Pl.'s Stmt. ¶ 19; Ade Dep. 67-69.) Peters was a fellow late night child care counselor, and never had supervisory authority over Ade during his tenure at KidsPeace. (Def.'s Stmt. ¶ 20; Pl.'s Stmt. ¶ 20.) When Peters first met Ade, in the presence of Marino and Doran, Peters stated in substance to Ade, "Is it true that you're from Africa? You don't have the typical African accent. Is it really true that you people from Africa wear leaves?" (Pl.'s Stmt. ¶ 97-98; Ade Dep. 68.) Ade complained about the comment to Marino shortly after the incident, and again several months later in casual conversation. (Ade Dep. 69-72, 76-79, 87-88.) Ade also mentioned the Peters comment within several months to Doran and in late 2006 to Scott Pompa, the late night Manager for Residential Programs at KidsPeace. (Ade Dep. 73-75, 102-105.) On each of these occasions, Ade brought up the comment as part of a conversation focused on a different topic. (Ade Dep. 73-75, 102-105.) Ade made no formal complaint about Peters's comment, and Peters was never disciplined. (Ade Dep. 70-71; Pl.'s Stmt. ¶ 99.)

On October 2, 2006, Ade was given a verbal warning for violating KidsPeace attendance policy. (Ade Dep. 155; Def. Mot. Ex. I.) Several weeks later, on October 25, 2006, Jane Marino and Donna Doran issued a written warning to Ade regarding attendance issues. (Ade Dep. 157; Marino Dep. 32; Def. Mot. Ex. I.) The October 25, 2006 warning alleged that Ade was absent on Friday, October 20, 2006, left at 4:30 am on Sunday, October 22, 2006, and that he "called off" on Monday, October, 23, 2006. (Def. Mot. Ex. I.) The written warning stated that "[a]ny further occurrances [sic] may result in further disciplinary action up to and including termination." (Def. Mot. Ex. I.) Ade refused to sign the warning when it was presented to him on October 25, 2006, and subsequently spoke to Scott Pompa about his leave situation. (Ade Dep. 156, 158-159; Pompa Dep. 22-33.)*fn2 However, although the written warning remained unsigned by Ade, it was not removed from Ade's personnel file after the meeting with Pompa. (Ade Dep. 157.)

In December 2006, Ade filled out a KidsPeace employment survey. In that survey, Ade stated, in pertinent part:

Q: What do you like least about your current position and why?

A: Things are not being addressed accordingly. Well, people are being biased and others feel unwanted;

Q: What suggestions for improvement do you have?

A: Well, management need [sic] to address things very vividly across the board and not being [sic] biased;

Q: What type of things occur in other companies that we could implement here at KidsPeace to improve retention and the work environment?

A: Well, there are lot of things that could be said but words are inadequate to expressed [sic]. For retention: stop the gossip and the spying on others. Work environment: staff should stop feeding the stray cats. Supervisors should stop condoning these act [sic];

Q: Any additional feedback/comments?

A: These things need to be addressed as soon as possible. It is very certain that most employee [sic] feels [sic] this way and share the same views. (Def.'s Mot. Ex. KK; Pl.'s Trial Ex. 12.)

On January 3, 2007, a co-worker of Ade, Kara Williams, complained to her supervisor at KidsPeace that Ade made inappropriate comments to her about her breasts. (Williams Dep. 12, 21.) According to Williams, Ade pointed to her breasts and stated, "What would you do if I touched those?" (Williams Dep. 12.) The parties contest whether Ade was interviewed and/or counseled after the incident and whether the allegations were truthful,*fn3 but it is undisputed that the cases Ade shared with Williams were reassigned, and that he no longer worked together with Williams after January 2007. (Def.'s Mot. Ex. K; Ade Dep. 163-168.) No formal disciplinary action was taken against Ade, and no formal report relating to the alleged incident was placed in his employment file. (Def.'s Mot. Ex. K; Remmel Dep. 55-60.)

On March 1, 2007, Peters complained about Ade to KidsPeace management, alleging that Ade intentionally opened a desk drawer into her stomach. (Def.'s Stmt. ¶¶ 33-34; Doran Dep. 42-44.) Ade's supervisors, Lea Nissley and Donna Doran, met with both Ade and Peters, and discussed the allegations with each of them. (Def.'s Stmt. ¶ 37; Pl.'s Stmt. ¶ 37.) Amy Remmel, an administrator in KidsPeace's Human Resources Department ("HR"), also met with Peters. (Def.'s Stmt. ¶ 38; Pl.'s Stmt. ¶ 38.) KidsPeace management did not credit Peters's allegations, and Ade was not disciplined or counseled in relation to the complaint. (Remmel Dep. 43-44; Pompa Dep. 38-39; Doran Dep. 110-111.) However, subsequent to the complaint, Peters and Ade were no longer scheduled to work together. (Def.'s Stmt. ¶ 42; Pl.'s Stmt. ¶ 42.)

On March 22, 2007, Ade and Jeanine Martincavage were working together as late night counselors at one of the KidsPeace homes, the Revere House. (Def.'s Stmt. ¶ 43; Pl.'s Stmt. ¶ 43.) In the early morning hours, Martincavage called her supervisor Lea Nissley to complain about Ade's behavior. (Def.'s Stmt. ¶ 44-45; Pl.'s Stmt. ¶ 44-45.) Nissley immediately responded to the Revere House, where she observed that Martincavage appeared to be upset. (Def.'s Stmt. ¶ 45-46; Pl.'s Stmt. ¶ 45-46.) Martincavage told Nissley that Ade became angry when she prepared a bowl of milk for a stray cat. (Def.'s Mot. Ex. Q -- Nissley Affidavit ¶ 7 (hereinafter "Nissley Aff."); Martincavage Dep. 23-25.) Martincavage further reported that Ade cursed repeatedly and threatened to kick the cat, and that when she attempted to block the door to stop Ade from harming the cat, Ade shoved her into a wall and exited the house.*fn4 (Nissley Aff. ¶ 7; Martincavage Dep. 24.) Nissley spoke to both Ade and Martincavage about the incident that night. (Nissley Aff. ¶ 7; Martincavage Dep. 25.) During a subsequent investigation, conducted by Nissley and Doran, both Ade and Martincavage gave additional statements. (Def.'s Mot. Ex. A -- Remmel Affidavit ¶ 11 (hereinafter "Remmel Aff.")) Amy Remmel in HR also spoke with Martincavage separately. (Def.'s Stmt. ¶ 62; Pl.'s Stmt. ¶ 62.)

After interviewing the parties, Doran and Remmel concluded that Martincavage's version of events was more credible, and determined that Ade's actions violated KidsPeace policy. (Nissley Aff. ¶ 7; Def.'s Mot. Ex. II -- Doran Affidavit ¶ 7 (hereinafter "Doran Aff.")) Ade was not terminated at that time, but was instead issued a final written warning, which he refused to sign. (Def.'s Stmt. ¶ 67-68; Pl.'s Stmt. ¶ 67-68; Ade Dep. 196-197; Def.'s Mot. Ex. U.) On April 4, 2007, three days after receiving the warning, Ade provided Doran with a letter in which he stated his feeling that KidsPeace's decision was "unfair and bias [sic]." (Def.'s Mot. Ex. V.) Specifically, Ade stated in his letter to Doran that "since this incident that occurred on March 22, 07 was all about the cats, I believed that was the reason I was treated unfaired [sic]."(Def.'s Mot. Ex. V.) Approximately one week after submitting the letter, Ade had a conversation with Doran during which he complained to Doran that he had been discriminated against on the basis of his race in relation to the Martincavage incident. (Ade Dep. 218-219; Pl.'s Resp. Ex. P -- Ade Affidavit ¶ 3 (hereinafter "Ade Aff."))

In approximately May or June of 2007, Ade was eating lunch with a Syrian co-worker named Rheem. (Ade Dep. 112-114.) By this time, Donna Doran had been promoted from her role of Assistant Supervisor to the position of Supervisor. (Ade Dep. 112-113.) Doran entered the room where Ade and Rheem were having lunch, looked at the Syrian dish sitting on the table, and stated in substance: "I wouldn't eat that. That looks like a turd.... You guys eat stuff like that in Africa?" (Ade Dep. 113.) Ade conveyed the comment to Amy Remmel in HR when he went to her office for the purpose renewing his ID, sometime within two months of the incident. (Ade Dep. 115-116.) Remmel instructed Ade to discuss the comment with her boss Scott Pompa, if he wanted to pursue a complaint. (Ade Dep. 116.) After this conversation, Ade never discussed the comment with Pompa, never informed anyone else at KidsPeace about the comment, and never made a formal complaint. (Ade Dep. 117.)

On November 25, 2007, Ade worked a night shift with Amanda Warner, another late night child care counselor at KidsPeace (Def.'s Stmt. ¶ 74; Pl.'s Stmt. ¶ 74; Warner Dep. 6.) Three days later, on November 28, 2007, Warner made a report concerning that evening to Doran. (Doran Dep. 53.) Warner informed Doran that during the November 25 shift, Ade forced himself on top of Warner, touched her breasts, and tried to kiss her as she was sitting on a couch. (Warner Dep. 27-28, 47; Doran Dep. 53-54.) She further stated that when she told him to stop and raised her voice, Ade covered her mouth with his hand. (Warner Dep. 27-28, 47.) Later that day, Warner prepared a typewritten account of the incident, which she provided to Doran. (Doran Dep. 63; Def.'s Mot. Ex. X.) Doran notified Nissley and Pompa about the incident, and Pompa directed Doran to speak with Ade about it. (Doran Dep. 65-66.)

On the same day of Warner's report, Doran and Nissley met with Ade. (Doran Dep. 65-68; Ade Dep. 123.) Doran and Nissley informed Ade of the complaint made by Warner, and communicated to him Warner's account of the incident. (Doran Dep. 67-68; Ade Dep. 123-124.) The written account provided by Warner was not shown to Ade. (Doran Dep. 64; Ade Dep. 143-144.) When Doran spoke with Ade about the incident, he completely denied the allegations, asserting that nothing had happened and that Warner's statement was false.*fn5 (Doran Dep. 67-68; Ade Dep. 123-126.) Ade also stated to Doran that he felt she was inappropriately drawing conclusions based on Warner's statement, because he was "black," "male," and had an "issue with the cat situation." (Ade Dep. 124-125.) Doran then told Ade that further investigation would be conducted, and that someone from KidsPeace would be in touch with him. (Doran Dep. 68, 70; Ade Dep. 124.) The meeting between Ade and Doran and Nissley lasted approximately 10-15 minutes. (Doran Dep. 68-69.) Based on the alleged incident, Doran contacted Ade later on November 28, 2007 and notified him that he was being placed on administrative leave. (Doran Aff. ¶ 11; Remmel Dep. 92-93; Ade Dep. 127-128.)

Ade was not asked at any time to provide a written account of the evening. (Pompa Dep. 51-53.) However, sometime between December 2 and December 3, 2007, Ade hand-delivered a letter regarding the incident to Amy Remmel in HR. (Remmel Dep. 31-34; Remmel Aff. ¶ 16, Ade Dep. 129; Ade Aff. ¶ 26.) At that time, Ade had not yet been terminated. (Remmel Dep. 36-37; Ade Dep. 129.) The letter stated, in pertinent part: "I will [sic] like you to know that those accusation [sic] are false. It's a fallacy, and it lacks the nature of truth and has a recipe of chaos... This alleged accusation is defaming my character and I would like to clear my name. Thanks, your response is highly appreciated." (Pl.'s Trial Ex. 32.) Remmel did not question Ade about the November 25 incident when Ade dropped off the letter, and Ade did not volunteer any additional information or explanation in relation to Warner's allegations. (Remmel ...

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