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Nguyen v. AK Steel Corp.

August 25, 2010


The opinion of the court was delivered by: Lisa Pupo Lenihan United States Magistrate Judge

Magistrate Judge Lisa Pupo Lenihan

Doc. No. 20



Currently before the Court for disposition is Defendant's Motion for Summary Judgment pursuant to FED.R.CIV.P. 56 and Western District of Pennsylvania Local Rule 56.1 (Doc. No. 20). In this employment discrimination case, Plaintiff, Tung Nguyen, asserts he was terminated based on national origin discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq., 42 U.S.C. §1981, and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. §951 et seq., by his former employer, AK Steel Corporation ("AK Steel" or "Company"). AK Steel moves for summary judgment in its favor on each of Plaintiff's discrimination claims on the basis that Plaintiff cannot establish either (1) a prima facie case of discrimination; or (2) proffer evidence sufficient to show that AK Steel's stated reasons for terminating his employment were a pretext for national origin discrimination.

For the reasons set forth below, the Court finds that material issues of fact exist precluding summary judgment. Therefore, the Court will deny Defendant's Motion for Summary Judgment.


Plaintiff Tung Nguyen (hereinafter "Nguyen") was employed by Defendant AK Steel at a steel processing facility in Butler, Pennsylvania, known as the "Butler Works," until he was discharged on March 1, 2007. The events leading up to his discharge can be summarized as follows.

In January 2007, Rick D. Winter ("Winter"), Manager of Human Resources at the Butler Works, was advised that a local scrap dealer possessed some brass that may belong to AK Steel. (Winter Dep. at 8-9.) Winter called Thomas R. Hasty ("Hasty"), AK Steel's Manager of Internal Auditing, and asked him to commence an investigation. (Id. at 11-14.) Subsequently, Hasty contacted the local scrap dealer, Greco Welding ("Greco"), and met with two of its employees to find out how Greco came to possess AK Steel's brass. (Winter Dep. at 11-12; Hasty Dep. at 26-28.) While at Greco, Hasty took custody of the material suspected to belong to AK Steel, and was also provided with a scrap ticket bearing Nguyen's signature, and license plate number. (Winter Dep. at 11-12; Hasty Dep. at 27-29.) A Greco employee informed Hasty that the individual who sold the materials to Greco was "Asian, maybe Korean." (Hasty Dep. at 28.)

After Hasty returned from Greco, he took the materials he obtained from Greco and compared them to parts in AK Steel's inventory. Hasty was able to match certain brass to unique parts from the Company's inventory, and determined that some of the materials were unique to parts found on equipment in the Slab Conditioning Department, where Nguyen worked. (Winter Dep. at 12-14; Hasty Dep. at 29-32.)

On February 22, 2007, Nguyen was summoned to an investigatory meeting with Hasty, Charles David Kish ("Kish"), Section Manager of Operations at the Butler Works, Robert Newcombe from Labor Relations, and Bob Crawford, Nguyen's union representative. (Hasty Dep. at 32-33; Kish Dep. at 7-8; Pl.'s Dep. at 73,75.) At this meeting, Newcombe and Kish explained the purpose of the meeting was to determine facts and gather information regarding the alleged theft of Company property. (Hasty Dep. at 33.) They also encouraged Nguyen to answer their questions truthfully and cautioned him that the meeting could result in disciplinary action. (Id. at 33-34.) Hasty then proceeded to present to Nguyen new parts taken from the Company's storeroom, one at a time, and asked him if he was familiar with them, to which Nguyen responded in the affirmative. (Id. at 34.) Nguyen recognized the parts as ones he used every day in his job. (Id.)

Next, from a second box, Hasty presented to Nguyen, one at a time, the parts he obtained from Greco that corresponded to the new ones he had just shown to Nguyen. Nguyen stated he was familiar with them as they are the same ones he used in his job to do repairs. After he was shown several of the parts from Greco, Nguyen and his union representative requested and took a brief recess, after which the meeting resumed and Nguyen continued to identify the remaining parts in the second box. (Hasty Dep. at 34.)

Finally, from a third box of miscellaneous materials, Hasty began to ask Nguyen if he was familiar with the items in that box. (Id. at 34-35.) Nguyen recognized the box as one similar to a box he had in his garage. (Id. at 35.) Hasty then asked Nguyen if he had sold or taken the material in the third box to Greco's scrap yard, to which Nguyen replied, "no." Hasty next asked Nguyen if he had taken the material from AK Steel, to which Nguyen also replied, "no." Hasty then presented to Nguyen the scrap ticket and asked him to identify the signature, and Nguyen confirmed that it was his signature on the ticket. Hasty also asked Nguyen to identify the license plate number on the scrap ticket, but Nguyen could not remember his license plate number. Hasty then asked Nguyen if he did not take the material from AK Steel and he did not sell it at Greco, to clarify how his signature ended up on the scrap ticket; Nguyen did not offer any explanation in response. (Id.)

Hasty repeated the same questions four or five times, and recounted Nguyen's responses as follows:

[Nguyen] started to then tell me about being a good employee and how he liked to recycle and he did repair work, and if he had copper wire, he would throw it in the box and that's what that box was from. Over the course of the meeting, he then said, well, a [contractor] had been in the repair shop and done some repairs and the metal-some of the scrap had been laying on the floor for a couple of months. He then said that, well, he remembered he did sell some of the material, but he didn't remember where he sold it. Subsequently, he said that he bought a couple of pieces of brass from the [contractor] when they were doing the repair.

Id. at 35-36. Nguyen could not recall, however, either the name of the contractor who made the repairs or when the repair work was performed, when asked by Hasty. (Id. at 36.) Allegedly Nguyen also stated that the parts were left over from a repair and he bought a couple of pieces of scrap from the contractor for approximately $5.00. (Id.)

Neither Hasty nor Winter conducted any further investigation after the initial investigatory meeting on February 22, 2007. (Hasty Dep. at 37; Winter Dep. at 37.) Following the investigatory meeting, Nguyen received a letter from Kish, dated February 23, 2007, notifying Nguyen that he was being suspended beginning February 24, 2007, with intent to discharge effective March 1, 2007, as a result of his theft of Company property. (Pl.'s Dep. at 85-86; Pl.'s Ex. 16; Kish Dep. at 13.) Sometime after receiving this notice, Plaintiff told several co-workers in his department that he had taken the scrap material out of the plant. When his co-workers tried to reassure him, Nguyen responded, "I took the material. I didn't pay for anybody, that's stealing." (Pl.'s Dep. at 164.)

Generally, contractors are instructed to remove their scrap material from the plant; according to Hasty, "[t]hat's part of their contract. They are required to clean up their area, and as part of that, they may remove the scrap or they may not." (Arb. Hrg. Tr. at 50.) Documentation entitled "Butler Works -- Contractors" indicates that the contractors involved in the crane work in Nguyen's department were not instructed on "disposition of waste and unused material." (Ex. 20, Pl.'s App. to Pl.'s Resp. Concise Stmt. Disputed Material Facts ("Pl.'s App."), ECF No. 32-4.) Moreover, both the 2002 and 2009 versions of the AK Steel Master Agreement provide that except as otherwise permitted by AK Steel, the contractor is required at the completion of the work to remove its tools, equipment, rubbish and surplus material and leave the work area clean and ready for use. With regard to salvable material, the master agreement specifically provides:

Any scrap steel, iron or other salvable material resulting from the performance of any services or the supplying of any materials pursuant to an AKS purchase order or service order, or the cost of which is paid by AKS under and provision hereof, shall be the property of AKS. If such material is not paid for by AKS, it shall be the property of the Contractor and Contractor shall promptly, at its own expense, remove the same from AKS's property, unless otherwise agreed upon. (Frisbee Dep., Exs. 7 & 9, ¶¶12, 14.) Although the Company maintains that the scrap brass left behind by the crane contractor was Company property,*fn2 there does not appear to be any documentary evidence to conclusively establish what the understanding was between the Company and crane contractor vis a vis ownership of the scrap brass at issue here.

Nguyen understood that AK Steel's policies prohibited the removal of any material from the facility without a supervisor-approved material pass, and although he had previously obtained a material pass to remove waste wood from the Company's facility, Nguyen did not obtain a material pass when he removed the scrap brass at issue here. (Pl.'s Dep. at 29-31.) Nguyen proffered the following explanation for failing to get a material pass to remove the scrap brass:

Q: Did you ask Mr. Schmidt for a material pass to remove this material?

A: No.

Q: Why not?

A; It's laying there for a long time. Finally, somebody have to clean it up. And I clean up, and it at the end of the day I didn't want to wait to go through the problem-probably laziness to go through the problem of getting paperwork done. I just took it.

Q: Did you think he wouldn't give you the material pass?

A: I didn't even think of that at that time. (Pl.'s Dep. at 84.) In addition, Nguyen acknowledged that he received and read copies of the various safety and security handbooks of AK Steel and its predecessor. (Pl.'s Dep. at 33-35; Pl.'s Dep. Ex. 5 & 6.) He understood that AK Steel's rules and policies prohibit theft and applied regardless of whether the property belonged to the Company, a contractor or co-worker. (Pl.'s Dep. at 32, 39-42.) Nguyen also understood that employees who violated those standards would be "punished." (Pl.'s Dep. at 32, 39.)

After Nguyen received notice that he had been suspended with intent to discharge, the union invoked the appeal process set forth in the Company's collective bargaining agreement. (Pl.'s Dep. at 87; Pl.'s Dep. Ex. 17; Affidavit of Michael C. Seyler dated 8/31/09 ("Seyler Aff."), ¶¶6-14.) In response, a works management hearing was held on March 8, 2007, and was conducted by Harry Harris, a senior labor relations representative at the time. (Pl.'s Dep. at 87-88; Pl.'s Dep. Ex. 17; Harris Dep. at 6.) At the works management hearing, the Company contends that Nguyen admitted to stealing Company property, but Nguyen disputes making any such admission. Rather, Nguyen submits that he admitted only to taking the scrap, not that it belonged to the Company. (Pl.'s Dep. Ex. 17; Kish Dep. at 14-15; Harris Dep. at 11, 30-31; Harris Dep. Ex. 1.) Also, during the works management hearing, the Union proffered the following explanation on Nguyen's behalf:

[Nguyen] w[as] very scared at the investigatory meeting when we looked through two boxes of scrap material and that is why [Nguyen] claimed [he] knew nothing of this matter except that [he]identified a few pieces of scrap [he] said [he] purchased from a contractor. . . . the Union explained that [Nguyen] said this because [he] had not been in any previous trouble, but now after a review of the situation [he] admitted stealing the subject scrap.

The Union added that [Nguyen] take[s] recycling very seriously, and because the scrap had been lying on the floor for over two months, this motivated [him] to do something that [he] felt was aiding the environment. In support of this, the Union gave an example that [Nguyen] had built a bin for recycling cardboard in [his] department. The Union also pointed to [his] twelve years of service without a blemish on [his] record. Additionally, [Nguyen] added that [he was] very embarrassed and remorseful after the incident. In summary, the Union argued that [Nguyen] had made an error in judgment (sic) and that the discharge was not appropriate and [Nguyen] should be returned to work. (Pl.'s Dep. Ex. 17.) At the conclusion of the works management hearing, Harris affirmed the Company's decision to discharge Nguyen, reasoning that the evidence now showed that there was no dispute that Nguyen stole the scrap at issue. (Pl.'s Dep. at 90; Pl.'s Dep. Ex. 17; Harris Dep. at 30.)

The Union then filed a grievance challenging Nguyen's discharge. (Pl.'s Dep. at 99; Pl.'s Dep. Ex. 18.) Consequently, on May 2, 2007, a Step III hearing was conducted by Michael Seyler, a senior labor relations representative, to review Nguyen's discharge. (Pl.'s Dep. at 104; Pl.'s Dep. Ex. 19.) AK Steel contends that at the Step III hearing, Nguyen admitted that he stole Company property, but Nguyen disputes making any such admission. The record evidence cited by the parties shows that Nguyen admitted only that he took the scrap, not that it belonged to the Company. (Pl.'s Dep. at 107-08; Pl.'s Dep. Ex. 19, Pl.'s App. Tab N, ECF No. 25-1; Affidavit of Robert L. Crawford dated 9/30/09 ("Crawford Aff."), ¶¶2-5; Affidavit of Donna Weckerly dated 9/30/09 ("Weckerly Aff."), ¶¶3-7.) In addition, at the Step III hearing, the Union advanced the argument on Nguyen's behalf that his motivation for taking the scrap was not to make a profit, but to maintain a clean environment and reduce waste by recycling scrap materials left behind on the department floor by a crane contractor for over two months. (Pl.'s Dep. Ex. 19.) The Union further submitted that Nguyen, having been raised in the poverty-stricken county of Vietnam, learned not to be wasteful, and was bothered by the thought that the abandoned scrap would be thrown out and wasted. The Union asked that the Company also take into consideration Nguyen's blemish-free employment record and his contributions to the Company during his twelve years of employment, as well as his contributions of time and money to various eleemosynary organizations. The Union also presented two letters of support and a petition from co-workers on Nguyen's behalf. (Id.)

Nguyen apologized for his actions, and stated that "he knew he was wrong and that he took full responsibility for his actions that were more stupidity than malice." (Pl.'s Dep. Ex. 19, p. 2.) After hearing all of the arguments and reviewing the record evidence, Seyler affirmed the Company's decision to discharge Nguyen. (Pl.'s Dep. at 99; Pl.'s Dep. Ex. 19; Seyler Dep. at 25-26.)

In denying the grievance, Seyler offered the following explanation:

The problem, however, with the Union's defense is the grievant's act of theft and the grievant's initial denial that he stole anything have irreparably breached the trust relationship with this employer. There are rule violations that employees commit for which it is appropriate to apply warnings and suspensions as corrective actions to change behavior. There are also those fundamental policy violations that destroy the employment relationship. The grievant committed one of the latter offenses. A breach of this magnitude against Company interests has erased the impact of the grievant's good attitude and good work. (Pl.'s Dep. Ex. 19, p. 3.)

Next, Nguyen appealed the decision denying his grievance to arbitration. Prior to the arbitration hearing, Brian Cossitor, Vice-President of the Union,*fn3 discussed with Winter the possibility of a "last chance agreement" for Nguyen on several occasions. (Cossitor Dep. at 17.) A "last chance agreement" is a matter of managerial discretion. (Seyler Dep. at 59.) Cossitor recalls that Winter remarked, "I'm between a rock and a hard place. . I'm not worried about Tung. . I'm worried about the 1400 other people. . [P]erfect example. . [I]f Brian Cossitor steals something and . we bring you back and . somebody sees you, they are going to say, hey, there is Brian Cossitor. He stole something and got back to work."*fn4 (Cossitor Dep. at 17-18.) In response to the question, "so what made you think that this comment that if you, Brian Cossitor, stole something and were put back to work, everyone would notice, what made you think that related to Mr. Nguyen's national origin[,]" Cossitor replied:

I am very well known. Whenever we had the apprenticeship program, it's called a roving program, and I roved every shop, every maintenance department. Basically, I was everywhere, knew everybody that worked there at that time, was into every department, and I'm very -- at that time, I had a ten-inch goatee at different times. I'm kind of colorful, so everybody knows me, knows of me. I'm not a wallflower, I guess.

And that's what I took it to mean, that you're visible, everybody knows you, knows you by name. If they see you back, they are going to know, and that's what I took it, because of Tung, he definitely looks different, he talks different, he speaks in broken English, and that's the way I took that statement. I thought it was important enough that I called Jack and told Jack what happened, and Jack said, make sure you document the event. (Cossitor Dep. at 18-19.) Cossitor admitted that during this discussion with Winter regarding a last chance agreement, Winter never expressly referred to Nguyen's national origin or any characteristics that could be associated with Nguyen's national origin. (Cossitor Dep. at 19.) Cossitor also admitted that certain offenses, including theft, which result in discharge, "definitely . . . carry more weight as far as stigma," and employees are more likely to discuss the situation. (Cossitor Dep. at 20-21.)

Subsequently, on July 10, 2007, an arbitration hearing was held, at which Nguyen testified on direct examination as follows:

Q: Where did this brass come from?

A: In the middle of [2006], we have an outside contractor come in and -- come in and work on our, one of our overhead crane on the west end of opposite building. We rarely work that area. And they were throwing stuff down on the ground. There was so many boxes there, and all pieces of equipment in that end beside the walkway.

And I asked them, what are you guys doing? At one time they come in and ask for water and coffee, and we BS'ing, and they say if the company we work for asking for it, we give to them. If they don't ask for it, we use, collect them and sell for our pocket money. Do you want it? We will probably take it out here because they didn't ask for it, nobody asked for it. Do you want it? We can sell it to you. We stay over at the Days Inn. I said no. It didn't seem right at that time.

Q: So they offered to take the scrap out and sell it to you -- or sell it to you and take it out and give it to you?

A: Yes, sir. Yes, sir. They're already going to take it out.

Q: But you said no?

A: Correct.

Q: So you didn't pay them any money?

A: No, I did not.

Q: Okay. So what happened? The contractor was there. Did the contractor leave?

A: I believe they -- Yes. I believe they were working late. They run into some problem. They work like 20 straight hours. And so they didn't pick it up. It just laid there.

Q: And how long did it lay there?

A: From the middle of the -- From -- It's rather hot. It was hot when you're working on it, so it had to be summertime. And it laid there till it was freezing cold.

Q: So from last summer?

A: Yes.

Q: Okay. And when the brass was lying there. Did anybody pick it up?

A: No. nobody have time. We don't work in that area. We just walk by there.

Q: You walk by there?

A: Yeah.

Q: So what happened? How did it get out of the plant? . . .

A: [L]ast fall, my boss, Bill Schmidt, said that we are going to put more baker in that area of building because we need it. . . . And then it hit me, because I said, holy heck, the brass there, throw it out there from the contractor, they didn't pick it up because you were ...

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