The opinion of the court was delivered by: Joy Flowers Conti United States District Judge
Pursuant to Title VII, 42 U.S.C. §§ 2000e et seq ., Thomas McClain ("plaintiff" or "McClain"), an African-American male, brought a single claim of race discrimination against his former employer, the Commonwealth of Pennsylvania, Department of Corrections ("defendant" or "DOC"). Plaintiff alleges the DOC terminated his employment for sleeping on the job, but did not terminate a white employee for similar conduct. On February 28, 2011, defendant filed a motion for summary judgment (ECF No. 21), which is the subject of the instant memorandum opinion. Because, as discussed below, there are genuine issues of material fact in dispute, the motion will be denied.
A. McClain's Employment with the DOC
The DOC hired McClain on June 23, 1993. (Joint Concise Statement of Material Facts ("J.C.S.") (ECF No. 35) ¶ P3.) At all times relevant to the case McClain held the position of community corrections center monitor ("monitor") at Riverside Community Corrections Center ("Riverside"). (Id. ¶¶ D20, D21.) Riverside is a residential facility or "halfway house" for inmates with prelease status or who are on parole. (Id. ¶ D2.) Monitors are responsible for the care and custody of the residents and the security of the facility. (Id. ¶ D4.) Monitors are required, inter alia , to check residents in and out of the facility, conduct security rounds, and pass out medication. (Id.)
Riverside is open twenty-four hours per day, and monitors are always on duty. (Id. ¶ P9.) McClain was assigned to the 11:00 p.m. to 7:00 a.m. shift. (Id. ¶ P15.) During his shift there was always another monitor on duty, but generally no supervisory personnel were present. (Id. ¶¶ P16, P18.) Roy Wyland ("Wyland"), a white male monitor, was assigned to the night shift with McClain. (Id. ¶ P19.) McClain's direct supervisors were Lieutenant Martin Saunders ("Saunders") and Riverside Director William Carnuche ("Carnuche"). (Id. ¶ P17.) Carnuche reported to the Region III Director, Marcia Combine ("Combine"), who supervised the community correction centers in the western Pennsylvania region. (Id. ¶ D6.)
B. McClain's Disciplinary History
The DOC has a code of ethics that sets standards of employee conduct. (Id. ¶ P22.) Code of Ethics section B, number 19 ("Code of Ethics no. 19") provides that "[e]mployees shall not read books, magazines, newspapers, or other non-job related printed material while on official duty. Employees are required to remain alert while on duty; inattentiveness, sleeping, or the appearance thereof is prohibited."
(Def.'s App. (ECF No. 23), Ex. 6 at 5.) Attentiveness is particularly required of monitors because the residents they supervise are in the custody of the state. (Def.'s App., Ex. 36 ("Combine Dep.") at 34:6-9.)
On July 18, 2007, DOC staff noticed McClain lying down on a couch while on duty. (J.C.S. ¶ D32; Def.'s App., Ex 12.) Disciplinary procedures were initiated and fact-finding was completed on August 8, 2007. (Def.'s App., Ex. 12.) The investigation revealed that McClain was on the couch for thirty-one minutes "giving the appearance of sleeping while on duty" in violation of Code of Ethics no. 19. (Id.) During fact-finding, McClain denied sleeping.*fn1 (Def.'s App., Ex. 40 ("McClain Dep.") at 26-27.) In addition to recommending discipline for violation of Code of Ethics no. 19, the fact-finder recommended discipline for violating Code of Ethics no. 29, which states that employees must cooperate with internal investigations and respond truthfully to any questions. (Def.'s App., Ex. 12.)
After the fact-finding and in accordance with DOC disciplinary procedures, a predisciplinary conference ("PDC") was held on September 7, 2007. (J.C.S. ¶ D16; Def.'s App., Ex. 14.) After hearing testimony from McClain and reviewing the records of the fact-finding, the committee substantiated the charges and recommended that McClain be subject to disciplinary action. (Def.'s App., Ex. 15.) Based on this recommendation, McClain was suspended for five days without pay and benefits from October 14 through 18, 2007. (J.C.S. ¶ D33; Def.'s App., Ex. 18.)
The DOC also gave McClain a final warning that incidents of a similar nature would result in termination. (Id.)
On July 1, 2008, McClain was again caught sleeping on the job. (J.C.S. ¶ D45.) Saunders discovered McClain sleeping in a chair and woke him up. (Def.'s App., Ex. 19.) In accordance with DOC disciplinary procedures, there was fact-finding and a PDC, during which McClain admitted to sleeping on duty. (J.C.S. ¶ D45.) For his second Code of Ethics no. 19 violation, the DOC terminated McClain effective July 28, 2008. (Def.'s App., Ex. 25.) The DOC replaced McClain's full-time position by promoting Deborah Parsons, a white part-time employee. (J.C.S. ¶¶ P64, P65.)
C. Wyland's Disciplinary History
Plaintiff alleges that during his employment at Riverside, defendant did not discipline Wyland, despite knowing that he was sleeping on the job. (Pl.'s Br. in Opp'n (ECF No. 29) at 1.) Wyland began working for the DOC in 1994. (J.C.S. ¶ D26.) In January 2008, Wyland was disciplined for leaving a shift early without permission, a violation of the Code of Ethics. (Id. ¶ P29.) Wyland was suspended for five days and given a final warning. (Id. ¶ P28.) On May 17, 2008, Wyland retired from his position. (Id. ¶ D27.)
In May 2008, Saunders showed a security camera video of Wyland to Dave Mandella ("Mandella"), an official of the Pennsylvania State Correctional Officer Association ("union"). The parties dispute the character of this video. Mandella averred that the video "clearly showed Mr. Wyland sleeping." (Pl.'s App. (ECF No. 30), Ex. 23 ("Mandella Decl.") ¶ 6.) The video showed Wyland covering himself with a blanket and "unequivocally showed Wyland sleeping at times and at other times giving the appearance of sleeping." (Id. ¶¶ 7, 8.) Saunders told Mandella that "he [Saunders] was aware that Mr. Wyland regularly slept while on duty" and that he was going to "talk to" Wyland about his conduct. (Id. ¶¶ 9, 10.)
Mandella's statements regarding the video conflict with the testimony of Saunders and Combine. Saunders testified that he could not tell if Wyland was sleeping from the video because the camera position only showed the back of his head. (Def.'s App., Ex. 38 ("Saunders Dep.") at 31-32.) Saunders testified, however, that Wyland was giving the appearance of sleeping in the video. (Id.) Giving the appearance of sleeping is a violation of Code of Conduct no. 19. (Def.'s App., Ex. 6 at
5.) Combine testified that the video of Wyland showed the back of his head and "was not sufficient evidence to warrant a fact-finding or any sort of discipline." (Combine Dep. at 60:16-61:15.)
Saunders testified that when he showed the video of Wyland giving the appearance of sleeping to union officials and Combine, he also showed video of McClain giving the appearance of sleeping. (Saunders Dep. at 29:9-18, 30-32.) Defendant asserts Saunders did not pursue discipline against either McClain or Wyland based on the video evidence. (Id. at 41 ("If I don't see you with your eyes closed physically sleeping, I wouldn't take action against you.").)
Combine testified that she saw the video of Wyland. (Combine Dep. at 66) She recalled seeing video of McClain lying on the couch, for which he was disciplined in 2007. (Id.) Contrary to Saunders' testimony, she did not observe any other videos of McClain giving the appearance of sleeping. (Id.) Mandella opined that he saw the video of Wyland sleeping, and the video of the July 18, 2007 incident involving McClain. (Mandella Decl. ¶¶ 4, 17.) Saunders did not show Mandella any other video of McClain sleeping on the job. (Id.)
Carnuche testified that a fact-finding was planned for Wyland regarding the video, but Wyland retired before it could commence.*fn2 (Def.'s App., Ex. 37 ("Carnuche Dep.") at 11:15-21.) While Carnuche described the video as showing Wyland "dozing off," he noted that the video was not conclusive. (Id. at 10-11.)
The timing of the Wyland video is in dispute. Saunders and Combine testified that after viewing the Wyland video, Saunders issued a memorandum (Def.'s App., Ex. 8.), reminding all staff to comply with Code of Ethics no. 19 and remain attentive while on duty. (Saunders Dep. at 29-30; Combine Dep. at 35.) The memo was dated February 7, 2007, but Saunders believed that date was a typographical error because he did not start working at Riverside until August 2007. (Saunders Dep. at 30.) Mandella was shown the Wyland video in May 2008, well after the memo was issued. (Mandella Decl. ¶ 4.) Saunders could not remember whether he ...