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Michael Blake v. Penn State University

March 8, 2011

MICHAEL BLAKE,
ANDREA JOHNSON AND JOHN ZARAK,
PLAINTIFFS,
v.
PENN STATE UNIVERSITY
GREATER ALLEGHENY CAMPUS, DEFENDANTS.



The opinion of the court was delivered by: Ambrose, Senior District Judge

OPINION AND ORDER OF THE COURT

Synopsis

Defendant Penn State University Greater Allegheny Campus ("PSU") moves for summary judgment dismissing all claims against it. Plaintiffs worked as maintenance workers for PSU on its Allegheny Campus. Plaintiff Michael Blake ("Blake") claims that he was discriminated against and suffered a hostile work environment based on his race, and retaliated against for complaining about this treatment. Plaintiff Andrea Johnson ("Johnson") also alleges that she suffered discrimination and a hostile work environment based on racial familial association and in retaliation for her complaints. Plaintiff John Zarak ("Zarak") claims that he suffered a hostile work environment and was retaliated against for complaining about the discriminatory treatment of Blake and Johnson. Plaintiffs‟ claims are asserted under Title VII of the Civil Rights Act of 1964, the Pennsylvania Human Relations Act ("PHRA") and 42 U.S.C. §1981. For the reasons set forth below, I grant Defendant‟s motion in its entirety.

I. Legal Standard

In order to prevail on a motion for summary judgment, the moving party must demonstrate that Athere is no genuine issue of material fact and. . .the moving party is entitled to judgment as a matter of law.@ Jurimex Kommerz Transit G.M.B.H. v. Case Corp., 2007 WL 2153278, at *1 (3d Cir. July 27, 2007) (quoting Fed. R. Civ. P. 56(c)). A[W]here the party opposing a motion for summary judgment bears the ultimate burden of proof, the moving party may discharge its initial burden of showing that there is no genuine of material fact by showing - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party=s case.@ Player v. Motiva Enter., LLC, 2007 WL 2020086, at *9 n.4 (3d Cir. July 13, 2007). AIf the moving party has satisfied its initial burden, the nonmoving party must, in their opposition to the motion, identify evidence of record that creates a genuine issue of material fact.@ Id. Moreover, A[t]o defeat a motion for summary judgment, the non-moving party must >do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial.= at Jurimex Kommerz Transit G.M.B.H., 2007 WL 2153278, at *1 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

II. Statement of Relevant Facts*fn1

Plaintiff Blake, an African-American male, has worked for Defendant since 1983 and has held the position of Grade 9 Maintenance Worker (Utility) C since November 1989. Plaintiff Johnson, a Caucasian female, has worked for Defendant since 1986 and has held the position of Grade 9 Maintenance Worker (General) C since 2003. Plaintiff Zarak, a Caucasian male, has worked for Defendant since 1987. In 1993, he was promoted to Grade 6 Group Leader Landscape, which position was reclassified in 1998 to include janitorial responsibilities.

All three Plaintiffs are employed within the administrative unit known as the Office of Physical Plant ("OPP"), and more specifically, work within the OPP Department of Maintenance. OPP is responsible for the day to day maintenance, upkeep and operation of all buildings and grounds, including the utilities infrastructure necessary to support these facilities. Donald Ukasik ("Ukasik") has been employed by Defendant since 1988 and has been Supervisor of Maintenance since 2003. Kirk Urey ("Urey") is Defendant‟s Director of Finance and Business and chief of human resources. (Docket No. 33-24, at 1.) As such, he is Ukasik‟s immediate supervisor. (Id.)

Evidence of Racist Speech

Blake never heard Ukasik refer to him or anyone else as "nigger." He did hear Ukasik call him "Buckwheat" in 2000, before Ukasik became a supervisor. Ukasik invited Blake to be a member of his wedding party, and Blake accepted. (Docket No. 34-1, at 28.) Johnson testified that she heard Ukasik use the word "nigger" one time in the fall of 2008 (although she did not include that incident in her EEOC filings), and once overheard him from twenty feet away refer to Blake as "Buckwheat." (Docket No. 34-2, at 66-68.) Zarak testified that he frequently heard Ukasik use the terms "nigger" and "Buckwheat" in reference to Blake, although he never reported Ukasik‟s use of these terms to either Defendant or the EEOC. (Docket No. 34-3, at 6-7, 11.) Another employee, Wayne McCusker, testified that he heard Ukasik use the word "nigger" hundreds of time over the past thirty years, but does not recall him ever directing it at anyone. (Docket No. 43-1, at 9-10). Both Zarak and McCusker emphasized that Ukasik made a point of only using such terms in private conversation with them. (Docket No. 34-3, at 8; Docket No. 43-1, at 9-10.) Connie Hopkins, Karen Weckoski, Kay Harvey, Ruth Johnson, Terrie Patton and Melanie Brletic, employees of Defendant who have regular and routine contact with Ukasik, all attested that they have never heard him use the terms "nigger" or "Buckwheat." (Docket Nos. 33-49 through 33-54.)

Johnson testified that, before she was transferred to the Maintenance Department from Food Production, Connie Hopkins told her that Ukasik had stated that he did not want Johnson in his department. (Docket No. 34-2, at 25.) She testified that on the few occasions when her biracial daughter came to her workplace, Ukasik would look at her daughter "funny" and shrug and walk away. (Id. at 46.) She claims that when she showed photographs of her biracial grandchildren to her co-workers, Ukasik made a sound of "dislike and bigotry," gave her a sour look, would roll his eyes and walk away. (Id. at 9-10.)

Plaintiffs‟ Complaints of Discrimination

On October 16, 2008, Blake filed a Harassment Questionnaire, Union Representation Questionnaire, and Performance Related Discipline Questionnaire with the PHRC. On January 8, 2009, Blake filed his initial verified charge of discrimination with the PHRC. On April 23, 2009, Blake filed a second charge of discrimination with EEOC. On August 17, 2009, Blake filed a third charge of discrimination with the EEOC.

Johnson testified that she and Connie Hopkins met with Defendant‟s Chancellor, Dr. Porter, in the summer of 2008 to notify him of Ukasik‟s discriminatory conduct. (Docket No. 43-1, at 729.) *fn2 On July 28, 2008, Johnson filed an Intake Questionnaire and Harassment Questionnaire with the EEOC. On December 22, 2008, Johnson filed her first verified charge with the PHRC. On June 18, 2009, Johnson filed a second charge of discrimination with the EEOC. On August 17, 2008, she filed her third charge of discrimination with the EEOC.

Zarak submitted an Intake Questionnaire to the EEOC on December 22, 2007. He filed his first charge of discrimination with the EEOC on February 25, 2008, his second charge of discrimination on August 17, 2009 and his third charge of discrimination on September 3, 2009. Ukasik‟s Retaliatory Conduct Towards Plaintiffs

a. Disciplinary Actions against Plaintiffs

Blake received two disciplinary warning letters and a suspension in March 2005 in connection with his refusal to follow Ukasik‟s instructions to use old calcium product during snow removal. In July 2007, Blake received a non-disciplinary letter of conversation for his conduct towards a work study student. During the so-called "Aunt Jemima" incident, the student, an African-American female, had been wearing a handkerchief on her head, and complained that Ukasik had made fun of her by speaking in a southern accent. (Docket No. 34-1, at 26-27.) Blake did not witness the incident, but approached the student repeatedly afterwards. (Docket No. 33-34.) She eventually complained to Urey, who issued a letter of conversation to Blake telling him to refrain from addressing the student further. (Docket No. 33-35.) Blake has never received another letter of conversation. Blake and Johnson received "below standards" performance evaluations in October 2008. Zarak received a disciplinary warning letter, subsequently withdrawn, in connection with his verbal exchange with Ukasik following a dispute over a change in parking signs.

Apart from these measures, none of the Plaintiffs received any other disciplinary warning letters, suspensions, demotions, loss of pay or loss of benefits during Ukasik‟s tenure as supervisor.

b. Blake's Transfer to the Gymnasium

In August 2008, Blake‟s principal area of janitorial responsibility was transferred from the Frable Building conference center to the gymnasium, and Ed Reagan, another Grade 9 Maintenance Worker who had been responsible for the gymnasium, was sent to the Frable Building conference center. Blake believes that he was transferred in retaliation for his complaints of discrimination. He stated that Ukasik told him that he was "confined" to the gymnasium. (Docket No. 34-1, at 45.)

Ukasik and Urey attested that the transfer was done to better align Blake‟s and Reagan‟s responsibilities with their shift schedules. (See Docket Nos. 33-1, at 3-5; Docket No. 33-24, at 6-8.) Blake worked the first shift (from 6:30 a.m. until 3:00 p.m.). Since the conferences typically occurred between 8:00 a.m. and 5:00 p.m., Blake would have very little time to set up before the conferences and no time to clean up after the conferences. (Id.) Reagan worked the second shift from 2:30 until 11:00 pm, when the gymnasium was heavily used. (Id.) Blake admits ...


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