The opinion of the court was delivered by: Conti, District Judge
Ademola Ilori ("plaintiff"), an African-American software engineer, commenced this race-based discrimination action against his former employer, Carnegie Mellon University ("CMU") and former supervisor Leonard Brush ("Brush," together with CMU, collectively "defendants"). Plaintiff's complaint includes the following claims: (1) race-based hostile work environment implicating a constructive discharge in violation of the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. §§ 959 et seq. ("PHRA"); (2) retaliation implicating a failure to promote and constructive discharge in violation of the PHRA, 43 PA. CONS. STAT. § 595; (3) race-based discrimination implicating a failure to promote in violation of the PHRA; and (4) race-based hostile work environment, retaliation, and race-based discrimination implicating a failure to promote and constructive discharge, pursuant to 42 U.S.C. § 1981 ("§ 1981").*fn1
After considering the defendants' motion for summary judgment (Docket No. 21), plaintiff's response (Docket No. 31), the joint statement of material facts ("J.C.S.") (Docket No. 44), and the parties' other submissions, defendants' motion will be denied with respect to plaintiff's § 1981 and PHRA claims for retaliation. Defendants' motion will be granted with respect to all remaining claims because the claims are either time-barred or plaintiff did not adduce sufficient evidence for a jury to render a verdict in his favor.
Ilori began his employment at CMU in 2000 as an intern in the Department of Administrative Computing and Information Services ("ACIS"). (J.C.S. ¶ 1.) ACIS was responsible for, among other things, administrative software development and deployment and maintaining information systems managed by ACIS. (Id. ¶ 2.) After completing his internship, Brush offered plaintiff a full-time position with ACIS. Brush offered plaintiff a software engineer I position. (Id.) Plaintiff accepted the position and commenced his employment with CMU in December 2000. (Id.) Plaintiff's experience working in computer programming and software development before his full-time employment was training at the Institute for Advanced Technology and his internship with ACIS. (Id. ¶ 4.) In 2004, ACIS employed twenty-five employees. (Id. ¶ 5.)
B. Plaintiff's Work Assignments and Supervisors
From 2000 through the end of 2003, plaintiff reported to Robert Rittiger ("Rittiger") and Mary Ann Blair ("Blair"). (Defs.' App. (Docket No. 24), Tab E at 41-42.) Plaintiff considered Blair "a good mentor, a friend and the rest," and his "best supervisor." (Defs.' App., Tab B at 224-25.) Plaintiff considered Ashish Khetan ("Krishna"), a senior co-worker, to be his mentor. (Id. at 61.) Plaintiff avers he had no single supervisor and was isolated in the department. (Ilori Aff. (Docket No. 30), ¶¶ 13-14.)
CMU invited plaintiff to work on a software development project undertaken by ACIS called the "Applicant Tracking Project" ("TMS"). (Pl.'s App. (Docket No. 40), Tab 18 at 43.) TMS used the computer programming language known as Java. (Id.) In early 2003, plaintiff withdrew from TMS and recommended his co-worker as a replacement. (Id. at 45-46.) Plaintiff contended he withdrew from the project to allow Janet Piper ("Piper"), who he recruited to CMU, to work on the project. (Id.)
In August 2003, plaintiff was assigned to the risk management information system ("RMIS") project. (J.C.S. ¶ 13.) The RMIS project was a long-term development assignment for plaintiff in the Oracle platform. (Pl.'s App., Tab 18 at 20.) Krishna previously trained plaintiff on Oracle format reports. (Id. at 37.) Plaintiff was excited when Blair invited him to work on the RMIS project. (Id. at 36.) As part of the project, plaintiff designed and developed the vehicles module. (J.C.S. ¶ 20.) The vehicles module involved developing a portion of the risk management information system that would track every vehicle owned by CMU, the insurance carried on the vehicle, the age of the vehicle, etc. (Id.; Defs.' App., Tab F at 53.)
In December 2003, Blair went on a maternity leave of absence. (J.C.S. ¶ 16.) In anticipation of her leave, Blair assigned Carol Rigdon ("Rigdon") as the project leader on the RMIS project and as plaintiff's immediate supervisor. (Id.) Plaintiff asserts Rigdon, as a senior software engineer, did not have supervisory authority over him as a software engineer I. (Pl.'s App., Tab 8 at 8.6-8.7.) Rigdon came to CMU in 1999 from Oracle Corporation where she did Oracle software development. (J.C.S. ¶ 17.) She was hired by ACIS for her knowledge and background with the Oracle architecture to which CMU was in process of converting. (Id.) Prior to supervising plaintiff, Rigdon was assigned to work for more than a year on a project in the School of Computer Science concerning issues with the Oracle system. (J.C.S. ¶ 18.) During the project, Rigdon placed one of the employees, who was white, on probation, and subsequently terminated his employment for failing to improve his performance to a satisfactory level. (Id.; Defs.' App., Tab G at D-0178-81, D-0197.)
In the spring of 2004, the RMIS project was still in the design phase. (J.C.S. ¶ 22.) The design phase was a crucial part of software development -- similar to creating a blueprint for a building. (Id.) In March 2004, Rigdon provided plaintiff with a technical specifications template for performing the assigned tasks on RMIS using the Oracle platform. (Defs.' App., Tab F at 60-61, Tab C at 82.) According to Rigdon and Blair, the templates were given to plaintiff because his development assignment "appeared to be a difficult thing for him to grasp." (Defs.' App., Tab C at 82.) Plaintiff asserts the specifications template was incomplete. (Pl.'s App., Tab 18 at 36.)
On April 2, 2004, Brush became aware that plaintiff disparaged Rigdon to co-workers in ACIS and discussed personnel issues with employees who were not his supervisors. (Defs.' App., Tab A at 74-75.) Brush could not recall plaintiff's statements, but remembered plaintiff complained to co-workers John Zamperini, Piper, and John Bird. (Id.; Pl.'s App., Tab 1 at 1.37-1.38.)
The performance management process in ACIS was a continuous process of objective setting, development, and review with the goal of continuing to enhance performance and develop the employee. (Defs.' App., Tab C at 57.) The performance management process was interactive; encouraging open lines of communication and sharing the objectives. (Id.)*fn2 The supervisor turned handwritten comments into a final performance evaluation document that was co-signed by the supervisor and employee. (Id.) Sometimes supervisors, however, did not make final documents and have them signed. (Id.) The performance review guidelines were a human resource tool available to departments at CMU, but there was no requirement employees receive reviews on an annual basis. (J.C.S. ¶ 7.)
In March 2001, plaintiff received written performance objectives including "Oracle Report Development." (Defs.' App., Tab B at D-0889.) The performance objectives included a section labeled "Oracle Reports" with the handwritten comment "meet with Krishna, 1 hour per week . . . Krishna mentors." (Id. at D-0890.) Plaintiff did not sign this evaluation. (Id.) In April 2002, plaintiff received written performance objectives including "[b]ecome proficient in the use of Oracle Report Writer." (Id. at D-0891.) Plaintiff signed this evaluation. Although the document is dated April 10, 2002, his signature is dated April 4, 2002. (Id. at D-0891-93.) In February 2003, plaintiff's performance objectives included "[b]ecome proficient in the use of Oracle Report Writer." (Id. at D-0897.) Plaintiff did not sign this performance review. (Id.) Plaintiff signed a draft of performance objectives for the period March 2004 through June 2004, which included: "Become proficient developing Oracle Forms & Reports within Oracle applications' architecture" and "[b]ecome a team player." (Defs.' App., Tab B at D-0221.)
D. Alleged Qualifications For Promotion
A software engineer I was required to "maintain existing applications . . . [and] make system directions." (Pl.'s App., Tab 8 at 8.6-8.9.) These responsibilities were necessary to keep the applications and systems that currently existed up and running, and correct and enhance them as needed. (J.C.S. ¶ 79.) Other duties included running the production of existing applications, working with supervisors and clients to make production schedules, and detecting and correcting production errors. (Id. ¶ 80.) The senior software engineer "devise[d] solutions to business problems . . . [and] develop[ed] and test[ed] applications." (Id. ¶ 83; Pl.'s App., Tab 15 at 50.) Blair explained the senior software engineer was required to communicate well with business customers and engage in new development efforts; rather than starting from pre-existing programs and enhancing the software. (Pl.'s App., Tab 15 at 50.)
Plaintiff asserts he was involved in complex software development work during his employment at CMU. (J.C.S. ¶ 81.) Plaintiff states because he was not under any supervision, he was performing the job of a senior software engineer. (Id. ¶ 62.) Blair described plaintiff's projects as enhancement projects, requiring no experience with software development from scratch, and with no responsibility for the development of business relationships. (Pl.'s App., Tab 15 at 43-50.) During the spring of 2004 it was the consensus of Blair, Rittiger, and Martha Baron ("Baron") that plaintiff lacked skills for promotion to senior software engineer. (Defs.' App., Tab C at D-0923.) To receive the promotion, plaintiff needed to "build the necessary skills in programming, database design, SQL, operating in a Unix environment and teamwork." (Id.) Blair, Rittiger, and Baron agreed the RMIS assignment provided plaintiff the opportunity to acquire the necessary skills "for a successful promotion bid." (Id.)
On April 2, 2004, Brush and Blair met with plaintiff to discuss his approaching Blair for a recommendation for promotion. (J.C.S. ¶ 75.) During the meeting, Brush confronted plaintiff about his discussing personnel issues (including his poor relationship with Rigdon) with co-workers. Brush stated, "If I hear you say anything about Carol, I will fire you." (Defs.' App., Tab B at 11.) Plaintiff asked why he could not be evaluated on the work he had done with Java for a promotion. (J.C.S. ¶ 76.) Brush stated, "If I hear you say 'Java' one more time, I will fire you." (Id. ¶ 77.)
E. Alleged Retaliation Incidents
On April 5, 2004, plaintiff approached Brush around noon to discuss Brush's threats to fire him. (J.C.S. ¶ 87.) Plaintiff told Brush he was going to speak with CMU president Jared Cohon ("Cohon") about Brush's conduct, which he asserts was in violation of CMU's diversity policy, and about the alleged racism plaintiff was experiencing. (Id.) Brush advised plaintiff to speak with ombudsman Everett Tademy ("Tademy") about his issues instead of Cohon. (Id. ¶ 88.) Plaintiff subsequently delivered a letter to Cohon's office explaining Brush's threat to fire him in the presence of another supervisor. (Pl.'s App., Tab 1 Ex. 1.8.)*fn3 Plaintiff explained in the letter he "had [no] peace" since the threat because he perceived the threat to be serious. (Id.)
After Brush's meeting with plaintiff on April 5, 2004, Brush sent an email to Tademy stating: "I will be initiating an involuntary termination in the department (ACIS) today; any advice?" (Pl.'s App., Tab 2 Ex. 2.4.) Tademy recalled talking to Brush on April 5, 2004. (J.C.S. ¶ 91; Defs.' App., Tab Q at 48.) Brush "was upset" and wanted to fire plaintiff. (Id.) Tademy could not recall why Brush wanted to fire plaintiff. (Id.) On April 7, 2004, Brush met with William Elliot and CMU counsel to discuss his decision to terminate plaintiff for cause. (Pl.'s App., Tab 2 Ex. 2.1.) Blair subsequently contacted Ed Hey ("Hey") and "was told to move forward with either the probation letter or involuntary termination." (Id.)
On April 5, 2004, plaintiff met with Blair and Rigdon to review the performance objectives discussed in March 2004. (J.C.S. ¶ 26.) Blair and Rigdon revised those performance objectives and directed plaintiff to "become a RMIS team player." (Defs.' App., Tab A at D-2532.) The evaluation objectives included:
Successfully contributes to group performance by completing tasks on time and as assigned; [a]ctively participates in team discussions; [a]ccepts technical direction and mentoring from senior team members; [c]onforms to group standards for software development . . . [and r]esolves issues within the team structure (Escalation path: Carol Rigdon, then Mary Ann Blair, and ultimately Len Brush.)
On April 12, 2004, plaintiff received an email from Rigdon asking why he did not attend a regularly scheduled meeting on that day. (J.C.S. ¶ 100; Defs.' App., Tab B Ex. 8.) Plaintiff responded with an email saying he "just forgot about it." (Defs. App., Tab B Ex. 8.) Plaintiff checked his electronic calendar that morning and the meeting was not scheduled. (J.C.S. ¶ 101.) When he checked his electronic calendar later in the day, however, the meeting was on his schedule. (Id. ¶ 102.) On May 16, 2004, plaintiff notified the computer science department about a possible glitch in the corporate time calendar that may have caused the disappearance of the appointment. (Id.; Pl.'s App., Tab 1 Ex. 1.79.) Plaintiff was informed a calendar glitch was possible. (Id.) A meeting was subsequently scheduled for April 19, 2004. (J.C.S. ¶ 28; Defs.' App., Tab A at 75-76.) Plaintiff asserts he went to Rigdon's office on April 19, 2004 at 9:30 a.m. (the time the meeting was scheduled) and Rigdon was not there. (Defs.' App., Tab A at 93.) Defendants assert Rigdon had not arrived at work. (Id.) Plaintiff made no effort to inform Rigdon he went to her office on time for the meeting, and Rigdon made no effort to ask plaintiff why he was not at the meeting. (Id.)
On or about April 23, 2004, Blair gave plaintiff a memorandum dated April 21, 2004, entitled "Departmental Discussions -- Second Warning." (J.C.S. ¶ 104.) The memorandum concerned plaintiff's continuing conduct to discuss "personnel matters" with employees who were not his supervisors. (Defs.' App., Tab B Ex. 10.) The memorandum encouraged plaintiff to discuss his issues with Rigdon or Blair because they were his supervisors. (Id.) In the memorandum Blair explained:
If you have work-related and/or personnel concerns moving forward, I remind you to follow the escalation path identified in your Performance Management Form dated April 5, 2004. Carol Rigdon is your immediate supervisor.
If you can not resolve your concern with Carol, feel free to come to me. (Id.) Blair informed plaintiff in the memorandum to contact Hey at human resources if plaintiff felt it was necessary. (Id.) Plaintiff asserts he never received a first warning "letter" prior to the "Second Warning" memorandum. Defendants counter the first paragraph of Blair's April 23, 2004 memorandum expressly referred to the prior verbal warning Brush gave to plaintiff on April 2, 2004. (Id.) (emphasis added).
On April 26, 2004, Blair gave plaintiff a memorandum dated April 23, 2004, entitled "Probationary Action." (Defs.' App., Tab B at D-0111.) In the memorandum, Blair reminded plaintiff that during their meeting to review his performance objectives on April 5, 2004, they discussed plaintiff becoming a team player on the RMIS project. (Id.) The memorandum described the ways in which plaintiff violated specific evaluation criteria for that objective including: plaintiff's failure to attend meetings with Rigdon on April 12, 2004 and April 19, 2004; plaintiff's resistance to the documentation framework (template) given by Rigdon for the development project; plaintiff's failure to resolve issues within the team structure; and plaintiff's general lack of responsiveness and cooperation with Rigdon. (Id.) The memorandum informed plaintiff to observe regular office hours and notify Rigdon if he would not be in the office between 8:30 a.m. and 5:00 p.m. (Id.) The memorandum placed plaintiff on probation from April 23, 2004 to June 30, 2004. (Id.) If plaintiff's performance did not improve in the outlined areas, plaintiff might have faced further disciplinary action, including termination. (Id.) The probationary action caused plaintiff to be ineligible for a merit increase in pay in June 2004. (Id.) On the same day defendants issued the probation memorandum, Brush sent an email to Blair, Rittiger, and Baron, stating, "THANX FOR EXTRA EFFORT; I think the timing of the probation letter will make his grievance a bit weak. We shall see, Len." (Pl.'s App., Tab 1 Ex. 1.22.)
In late April or early May 2004, plaintiff saw a stress counselor due to work-related stress three or four times. (Pl.'s App., Tab 18 at 215.) Plaintiff saw the counselor because the probation letter suggested he do so, and the letter provided plaintiff with the number to CMU's employee assistance program. (Id.) CMU paid for three sessions under this program. (Id.) Plaintiff paid for one or two additional sessions on his own. (Id.) On April 26, 2004, plaintiff filed a complaint with Tademy accusing ACIS of discriminating against him. (Pl.'s App., Tab 1 Ex. 1.26.) In his complaint, plaintiff asserted Blair's memorandum entitled "Department Discussions -- Second Warning" and the probation were acts of retaliation for "trying to improve diversity in ACIS." (Id.)
In May and June 2004, ACIS provided plaintiff with two separate training sessions to develop technical skills in the Oracle platform. The first training session took place the week of May 10, 2004. ACIS provided plaintiff with in-house, in-person technical development training on PL/SQL. (Defs.' App., Tab F at 44.) PL/SQL is coding language for Oracle. (Id. at 45.) Plaintiff asserts this training session was not suitable for him because it was too advanced. (Defs.' App., Tab B at 127.) The training was not comparable to similar software training given to non-ACIS staff members that lasted three to four weeks. (Defs.' App., Tab C at 34-37.) The second session went from June 8 to 17, 2004, and ACIS paid an outside vendor to provide technical development training to plaintiff on "Extend the Oracle Applications (Forms Development)." (Defs.' App., Tab B at 126-27, D-0116.) Plaintiff asserts this training was not adequate to prepare him for his work assignments. (J.C.S. ¶ 38.)
On May 28, 2004, Blair and Rigdon met with plaintiff to conduct a review of his progress on developing the design for the vehicles module for RMIS. (J.C.S. ¶ 34.) On June 1, 2004, Blair sent plaintiff an email discussing the May 28, 2004 meeting, telling plaintiff:
You were disrespectful of your supervisor -- this is not acceptable . . . you did not focus on the purpose of the meeting . . . you were argumentative even before the substantive discussion began . . . your behavior was extremely unprofessional and is affecting your ability to get the job done as well as costing others valuable time and productivity . . . you must be cooperative if we can proceed with mentoring and training . . . the way you were behaving and ignoring your supervisor was insubordinate. As long as you behave in this manner you will not be a productive member of the team. Worse, continued insubordination will result in disciplinary action. Meetings with your supervisor are designed to be constructive and informative. In the future, please attend prepared to listen, learn, share, and engage with due respect and professionalism. (Defs.' App., Tab B Ex. 15.)
On or about July 8, 2004, Rigdon gave plaintiff a written review of his performance during the probation period. (Defs.' App., Tab B at D-0116.) Plaintiff received a "Below Expectations" rating from Rigdon with respect to the objectives of (1) becoming proficient in developing Oracle forms and reports within Oracle application architecture, and (2) becoming a RMIS team player. (Id.) Despite Rigdon's evaluation of "Below Expectations," Rittiger and Baron provided comments on the review and rated plaintiff's overall performance as "At Expectations." (Id.) Blair prepared a memorandum expressing the same concerns about plaintiff mentioned in the April 23, 2004 probation letter. (Id.)
F. The Risk Management Position In Qatar
In the spring of 2004, plaintiff was interested in pursuing an employment position at CMU's new campus in Doha, Qatar. (J.C.S. ¶ 41.) In March 2004, plaintiff applied for the position of risk management specialist at the Qatar campus. (Pl.'s App., Tab 18 at 51-53; Defs.' App., Tab H at D-0492, D-0422.) Plaintiff's wife secured employment in Qatar to begin July 2004. (Defs.' App., Tab I at D-0541-42.) While plaintiff's application for employment in Qatar was pending, he sought a personal leave of absence from ACIS to bridge his service with CMU until he obtained a job in Qatar. (J.C.S. ¶ 44.) CMU provided personal leaves of absence only to staff members whose performance was satisfactory and if the department was reasonably certain the staff member intended to return at the end of the leave. (Defs.' App., Tab J at D-2269.) Approval of a requested leave was at the discretion of the department head. (Id.)
On July 8, 2004, Blair, Sally Love, and Brush met with plaintiff to discuss his leave request. (Pl.'s App., Tab 1 Ex. 1.76.) During the meeting, plaintiff stated July 16, 2004 would be his "last day." (Id.) Brush attempted to confirm that July 16, 2004 would be plaintiff's last day of employment at CMU. (Id.) Plaintiff became confused stating he was not ending his employment, but seeking a leave. (Id.) Plaintiff stated, "I am not leaving, I'm not quitting. I am still an ACIS employee." (Pl.'s App., Tab 18 at 144.) Brush replied that if plaintiff did not resign, he would pick a date for him to resign. (Id.) Brush advised plaintiff his days at ACIS were numbered. (J.C.S. ¶ 119.) Plaintiff reiterated at the conclusion of the meeting: "As of today, I am not leaving." (Pl.'s App., Tab 1 Ex. 1.76.) Brush denied plaintiff's leave of absence request during the July 8, 2004 meeting. (Id.)
Because his leave of absence was denied, plaintiff sought paid-time-off ("PTO") to relocate his wife and children to Qatar. (Pl.'s App., Tab 18 at 129-30.) Plaintiff was on PTO from on or about July 23, 2004 through August 23, 2004. (Id.) Defendants assert plaintiff did not inform Brush if or when he planned to return to ACIS. (Defs.' App., Tab A at D-2993.) Plaintiff responds he "told [defendants] when [he] was coming back" to ACIS. (Pl.'s App., Tab 18 at 144.)
On August 23, 2004, plaintiff returned to work at ACIS in Pittsburgh. (J.C.S. ¶ 122.) Blair had transferred positions and was no longer working in ACIS on that day. (Defs.' App., Tab B Ex. 18.) Brush assigned Rittiger to assume Blair's role in plaintiff's supervisory chain of command. (Pl.'s App., Tab 18 at 152-53; Defs.' App., Tab B Ex. 18.) Plaintiff avers that on July 23, 2004 (i.e., the day plaintiff began PTO) his name was removed from the CMU server and he could not access the applications he was working on in Qatar. (Pl.'s App., Tab 18 at 144.) On August 23, 2004, plaintiff found his office had been reassigned, the area reconfigured, and his computer was gone. (Id. at 155.) On August 23, 2004, Rigdon sent an email to plaintiff giving him certain assignments while he waited for his computer to be reconnected and his work area to be reconfigured to its original layout. (Defs.' Supplemental App. (Docket No. 43), Tab 4.) Rigdon stated in the email she expected plaintiff's work area would be restored "tomorrow afternoon . . . ." (Id.) Plaintiff's access to the database at ACIS was denied until August 30, 2004. (Pl.'s App., Tab 18 at 144.)
The risk management specialist position in Qatar for which plaintiff had applied was withdrawn on August 27, 2004. (Defs.' App., Tab H at D-0488; Pl.'s App., Tab 9 at 9.18, 9.27.) From the time the position was originally posted to the time it was withdrawn, there was an ongoing discussion among the Qatar management team to define what CMU wanted in the position. (Pl.'s App., Tab 14 at 14.5-14.8.) The posted position description, however, remained substantively the same until it was withdrawn. (Pl.'s App., Tab 9 at 9.2-9.29.) Experience in environmental health and safety and risk were the primary qualifications for the job listing. (Id.) On August 26, 2004, Chuck Thorpe ("Thorpe"), dean of the Qatar campus, and Mohamed Dobashi, associate dean of the Qatar campus, suggested the job responsibilities of the risk management position could be fulfilled by drawing on the expertise of various existing employees at the Pittsburgh campus. (Defs.' App., Tab H at D-3001.) In October 2004, James Gartner was appointed senior director of global security. (Defs.' App., Tab H at 6-7.) The position was based in Pittsburgh with the primary responsibility for security at CMU's Qatar campus. (Id.) Gartner was transferred to Qatar in August 2006. (Id. at 22-23.)
On September 1, 2004, Rittiger and Rigdon met with plaintiff to resume the discussion of his work performance detailed in the performance review document given to plaintiff in July 2004. (J.C.S. ¶ 50.) Rittiger and Rigdon gave plaintiff a memorandum outlining his assignments and their expectations on the RMIS project. (Defs.' App., Tab B Ex. 19.) The memorandum informed plaintiff his probationary period would continue from August 29, 2004 through September 30, 2004 for the purpose of providing plaintiff "an opportunity to improve [his] work performance and show that [he would be] able to conduct [himself] in a professional manner." (Id.) Defendants assert Rigdon went on vacation immediately following the assignment, and plaintiff asserts he could not receive guidance from anyone to do the work. (Pl.'s App., Tab 18 at 178.) Rigdon took a "long Labor Day holiday" to attend a wedding. (Defs.' App., Tab F at 95.) On September 2, 2004, plaintiff was denied an early lunch to accommodate a doctor's appointment the following day. (Pl.'s App., Tab 18 at 177.)
On September 2, 2004, plaintiff visited a doctor to address the stress and alleged hostility he faced at work. (J.C.S. ¶ 51.) Plaintiff's last day at work was September 3, 2004. (Ilori Dep. at 182.)*fn4 On September 3, 2004, after working until about 10:30 a.m., plaintiff delivered a doctor's note to CMU which stated he would be excused from work for the remainder of September 3, 2004 until November 3, 2004. (J.C.S. ¶ 52; Ilori Dep. at 182.) CMU approved plaintiff for short-term disability leave through early December 2004. (Id.) Plaintiff never returned to work after September 3, 2004. (Id.) While on disability leave plaintiff was an employee of CMU and received income, health insurance and other benefits. (J.C.S. ¶ 53.) During his disability leave, plaintiff sent two resignation letters -- the first dated October 18, 2004, and the second dated October 20, 2004 -- stating his resignation would be effective December 4, 2004. (J.C.S. ¶ 54.)
On May 18, 2004, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Defs.' App., Tab R at D-0079-81.) The EEOC charge was dual-filed with the Pennsylvania Human Relations Commission ("PHRC"). (Id.) On June 3, 2008, plaintiff received notice his EEOC and PHRC complaints were dismissed. (Id. at D-0548.) Plaintiff filed his complaint in this case on September 3, 2008. (Pl.'s Compl. (Docket No. 1).)
Federal Rule of Civil Procedure 56(c) provides summary judgment may be granted if, drawing all inferences in favor of the nonmoving party, "the pleadings, discovery and disclosure materials on file, and any affidavits show that there is a genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 249. The court is to draw all reasonable inferences in favor of the nonmoving party. El v. Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007) ("In considering the evidence, the court should draw all reasonable inferences against the moving party."). The United States Court of Appeals for the Third Circuit has stated:
[I]f there is a chance that a reasonable factfinder would not accept a moving party's necessary propositions of fact, pre-trial judgment cannot be granted. Specious objections will not, of course, defeat a motion for summary judgment, but real questions about credibility, gaps in the evidence, and doubts as to the sufficiency of the movant's proof, will.
Id. The court may consider material evidence that would be admissible or usable at trial in deciding the merits of a motion for summary judgment. Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (citing 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2721, at 40 (2d ed. 1983)); Pollack v. City of Newark, 147 F. Supp. 35, 39 (D.N.J. 1956), aff'd, 248 F.2d 543 (3d Cir. 1957) ("[I]n considering a motion for summary judgment, the court is entitled to consider exhibits and other papers that have been identified by affidavit or otherwise made admissible in evidence.").
Plaintiff asserts the following claims: (1) race-based hostile work environment in violation of the PHRA (count I); (2) retaliation in violation of the PHRA (count II); (3) race-based discrimination in violation of the PHRA (count III); and (4) race-based hostile work environment, retaliation, and race-based discrimination, pursuant to § 1981 (count IV).
Defendants argue they are entitled to summary judgment with respect to all plaintiff's claims. With respect to the PHRA claims against Brush, defendants argue plaintiff failed to exhaust his administrative remedies with respect to Brush, and summary judgment should be granted in defendants favor. (Defs.' Br. (Docket No. 23), at 19.) With respect to count IV, defendants contend plaintiff did not file his § 1981 claims in a timely manner and the claims are barred by the statute of limitations. (Id. at 1 n.1.) With respect to counts I and IV, defendants argue plaintiff was not subjected to a hostile work environment because plaintiff did not suffer intentional discrimination due to his race, and the discrimination was not pervasive and regular. (Id. at 4 n.4.) With respect to counts II and IV, defendants dispute the causal connection between plaintiff's protected activity and any alleged acts of retaliation. ...