The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiff Marcus Jones ("Plaintiff"), an African-American male, brings this action under 42 U.S.C. § 1981 for retaliation (Count I) and racially discriminatory termination and hostile work environment (Count II) against his former employer Defendant Henry H. Ottens Manufacturing Company ("Ottens")and the Ottens Manufacturing Operations Manager Chuck Jones (together, "Defendants"). Compl. ¶¶ 7-8, 11, 29-36. Presently before the Court is Defendants' motion for partial summary judgment based on the doctrine of after-acquired evidence (ECF No. 20). Defendants contend that Plaintiff's remedies should be limitedto back pay from the date of termination to thedate when, during discovery in this case, Defendants learned Plaintiff had been convicted of a crime (which he did not disclose on his employment application).
Defendants filed their Motion on October 31, 2011 (ECF No. 20). Plaintiffs responded on November 14, 2011 (ECF No. 21). Defendants filed a reply brief on November 23, 2011 (ECF No. 23).
As described below, the Court will DENY the Motion because there is a genuine dispute of material fact as to whether Defendants would have terminated Plaintiff based on his undisclosed prior conviction.
The following pertinent facts are undisputed.*fn1 Ottens manufactures flavorings for food and other products for human or animal consumption. Defs. SUF ¶ 1; Pl. SUF ¶ 1. In May 2009, the temporary agency Aerotek assigned Plaintiff to Ottens. Defs. SUF ¶ 4; Pl. SUF ¶ 4. As part of his transition to later full-time employment, Plaintiff filled out the Ottens employment application. Defs. SUF ¶ 5; Pl. SUF ¶ 5. The application asked whether the applicant had "ever been convicted of a crime or felony." Defs. SUF ¶ 8. Plaintiff checked the "no" box. Defs. SUF ¶ 8; Pl. SUF ¶ 8; Defs. Ex. 3 at 1. A number of certifications preceded the application's signature line, including the following pertinent paragraph:
I certify that the statements made in this application are true and correct to the best of my knowledge and that any false information or misrepresentation contained herein will disqualify me from employment with Ottens Flavors, and, if hired by Ottens Flavors, will constitute immediate grounds for dismissal of my employment.
Defs. SUF ¶¶ 6-7; Pl. SUF ¶¶ 6-7; Defs. Ex. 3 at 3 ¶ 1. Plaintiff signed the application on September 2, 2009. Defs. Ex. 3 at 3.
In September 2009, Ottens hired Plaintiff as a full-time maintenance employee. Defs. SUF ¶ 2; Pl. SUF ¶ 2. In November 2009, Plaintiff became a "material handler," which required him to inspect inbound raw materials and to store and control raw materials to manage cross-contamination. Id. Ottens terminated Plaintiff from his employment on January 5, 2011, and paid him through that date. Defs. SUF ¶ 17; Pl. SUF ¶ 17. On February 7, 2011, Plaintiff filed the Complaint in this case (ECF No. 1).
During discovery, Defendants took Plaintiff's deposition. Defs. SUF ¶ 11, Deposition of Marcus Jones ("Pl. Dep."), Pl. Ex. C. During his deposition, Plaintiff was asked a number of questions about his criminal background. First he was asked if his answer of "no" to the question "Have you ever been convicted of a crime or a felony?" was accurate. Pl. Dep. at 30:10-14. Plaintiff answered yes. Id. at 30:15. Plaintiff was then asked whether he had ever been convicted of impersonating a public servant, recklessly endangering another person, or any crime. Id. at 30:16-17. He answered "[n]o, they were charges. They weren't convictions" Id. at 30:25-31:1. Plaintiff was then asked about the following charges: false alarms to agencies of public safety, impersonating a public servant, false reports to law enforcement authorities and recklessly endangering another person. Id. at 31:2-9. Plaintiff admitted those charges were brought against him. Id. at 31:10. When asked what happened, Plaintiff responded "[w]hat happened was I pleaded to -- I pleaded guilty to false alarm, because -- at the advice of my attorney, but I wasn't convicted." Id. at 31:17-20. Plaintiff then explained the circumstances that gave rise to the charges. Id. at 31:23-33:2. According to Plaintiff, at the time of the incident, Plaintiff worked for Philadelphia Housing Authority. Id. at 31:23-25. One day, at home, he saw someone trying to steal his girlfriend's car radio. Id. at 32:1-4. After taking the thief down to the ground, he called 911, and stated he was an off-duty Housing Authority investigator in need of assistance. Id. at 32:9-12. The police later claimed that he had said "officer needs assistance." Id. at 32:16-19. They were unable to find a recording of the 911 call. Id. at 32:20-21.
The following exchange then occurred in the deposition: Q: And did you have to appear in court on any of these charges?
Q: And it's your testimony that you pled guilty ...