The opinion of the court was delivered by: Carol Sandra Moore Wells Chief United States Magistrate Judge
Ronald A. Johnson ("Plaintiff") has sued Defendants Labor Force, Inc. ("Labor Force"), Bilt-Rite Orthopedics & Safety, Inc. ("Bilt-Rite"), and Mutual Industries North, Inc. ("Mutual"), accusing them of violating his rights under 42 U.S.C. § 1981. Specifically, in his second amended complaint, Plaintiff alleges that, in violation of § 1981: (1) Defendants terminated his employment at Bilt-Rite, because he complained about racial discrimination and informed his managers that he was filing a racial discrimination complaint with the federal Equal Employment Opportunity Commission ("EEOC") (Count One); and (2) Defendants failed to hire him for a permanent position at Bilt-Rite, because he complained about racial discrimination and had informed his managers that he was filing a racial discrimination complaint with the EEOC (Count Two). Second Amended Complaint ("Second Compl.") at 5-6. Defendants Bilt-Rite and Mutual have moved for summary judgment with respect to both counts of the second amended complaint; Plaintiff has responded thereto. For the reasons explained below, Defendants' joint motion is denied.
Plaintiff alleges that Mutual owns and operates a facility in Philadelphia which manufactures beauty products, construction products, adhesive tapes, fabrics and clothing. Second Compl. at 2.
Bilt-Rite is alleged to own and operate a facility in Bucks County which manufactures orthopedic equipment, such as pillows, braces, collars and bed equipment. Id. Labor Force is an employment agency which placed Plaintiff with Mutual and Bilt-Rite and supervised him while he worked for them. Id. at 2-3. Plaintiff further alleges that Mutual and Bilt-Rite are "sufficiently interrelated and integrated in their activities, labor relations, ownership and management that they may be treated as a single and/or joint employer for purposes of the instant action."*fn1 Id. at 3. This assertion is borne out by the record. Edmund Dunn, the sole owner of Mutual, testified that Bilt-Rite is a registered fictitious name of Mutual, Deposition of Edmund Dunn ("Dunn Dep.") at 7; in addition, William Palmer, formerly the sole owner of Bilt-Rite, testified that, in 2006, he closed his corporation and sold Bilt-Rite's assets to Mutual. Deposition of William Palmer at 8-12.
Plaintiff, an African-American male, alleges that he was hired for a supervisory job with Mutual and Bilt-Rite through Labor Force. Second Compl. at 3. Plaintiff worked from May 2009 to December 8, 2009 at Bilt-Rite's Bucks County facility; he believed he was an employee of both Bilt-Rite and Mutual. Id. at 4. He alleges that his salary was paid by Mutual through Labor Force. Id. Plaintiff received no written reprimands during his tenure at Bilt-Rite's facility; however, he complained "about racial discrimination, particularly concerning his compensation." Id. He also requested and was denied "a permanent management position with Defendants."*fn2 Id. at 4-5. On December 8, 2009, right after Plaintiff informed Labor Force that he had scheduled a meeting with the EEOC to file a charge of discrimination, he was told not to return to work. Id.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if "the movant shows that there is no 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(a). An issue of fact is genuine only if there is sufficient evidence that would permit a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). An issue of fact is material only if it might affect the outcome of the suit under the governing law. Id. at 248. Credibility determinations are not appropriately made by the judge in summary judgment but must be left for the jury. Id. at 255. Further, the record evidence must be viewed in the light most favorable to the non-movant. See e.g., Brown v. J. Kaz, Inc., 581 F.3d 175, 179 (3d Cir. 2009).
The burden to demonstrate the absence of a genuine issue of material fact rests with the movant, regardless of which party has the burden of persuasion at trial. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert. denied, 483 U.S. 1052 (1987). If, however, the non-movant has the burden of proof on an element essential to its case at trial, and does not, after adequate time for discovery, make a showing sufficient to establish the existence of that element, summary judgment is mandated. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In such a situation, there can be no genuine issue as to any material fact, because a complete failure of proof regarding an essential element of the non-movant's case necessarily renders all other facts immaterial. See id. at 322-23. Hence, the party moving for summary judgment is entitled to judgment as a matter of law. Id. at 323.
A. Section 1981 Principles
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42 U.S.C. § 1981(a). The statute defines "make and enforce contracts" to "includ[e] the making, performance, modification, and termination of contracts, and the enjoyment of all the benefits, privileges, terms and conditions of the contractual relationship." § 1981(b). To establish a basis for relief under § 1981, a plaintiff must show: (1) that he belongs to a racial minority; (2) an intent to discriminate on the basis of race on the part of the defendant; and (3) discrimination concerning one or more of the activities enumerated in § 1981. See e.g., Estate of Oliva v. State of New Jersey, 604 F.3d 788, 797 (3d Cir. 2010). To establish a prima facie retaliation claim under § 1981, a plaintiff must show that: (1) he engaged in protected activity; (2) ...