The opinion of the court was delivered by: Lynne A. Sitarski United States Magistrate Judge
Plaintiff James Ildefonso ("Plaintiff") brings this action against his current employer the City of Bethlehem and the Director of the Parks and Public Property, Ralph Carp, (collectively "Defendants") claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1981, 42 U.S.C. § 1983; and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. § 951 et seq.
Presently before the Court is Defendants' Motion for Summary Judgment and Plaintiff's Response. For the reasons set forth herein, Defendants' Motion for Summary Judgment is GRANTED.
Plaintiff claims that his employer and his department director discriminated against him on the basis of his race. Specifically, Plaintiff raises claims of disparate treatment based on unequal disciplinary measures and a failure to promote (Counts I and III). The discipline issue arises from an altercation between Plaintiff and his co-worker, Chuck Yenca. The failure to promote pertains to a Class 12 pesticide sprayer position. Plaintiff argues that both issues, discipline and promotion, should be viewed in the context of Ralph Carp's allegedly racially insensitive comments. Plaintiff also raises an equal protection claim based on Defendants' refusal to reimburse Plaintiff for certain fees related to his pesticide license and the refusal to allow Plaintiff to work at the ice rink (Count II). Plaintiff argues that his equal protection claim should be considered in the context of the racial profile of the City. (Doc. No. 4) (Transcript of Hearing, 05/29/12, p. 30-40).
On March 27, 2012, Defendants filed a Motion for Summary Judgment and a Statement of Material Undisputed Facts. (Doc. Nos. 20 & 21). Plaintiff's Answer to Defendants' Motion for Summary Judgment was filed on April 26, 2012. (Doc. No. 23). Plaintiff also filed a Response to Defendants' Statement of Material Undisputed Facts. (Doc. No. 23-2). The Court heard oral argument on May 29, 2012. The matter is now ripe for disposition.
Viewing the evidence and drawing all reasonable inferences in the light most favorable to Plaintiff, the non-moving party, the relevant facts are as follows.
Plaintiff is an adult Hispanic male. (Doc. No. 20, ¶ 2) (Doc. No. 1, ¶ 7). Plaintiff has been employed by the City of Bethlehem ("City") since May 1993 and has been assigned to the Department of Parks and Public Property ("Parks Department") since 2001. (Doc. No. 20, ¶ 1). Plaintiff had at least two discipline issues at work prior to his transfer to the Parks Department in 2001. (Doc. No. 20, ¶ 5) (Doc. No. 23-2, ¶¶ 5, 93). Plaintiff contends that he did not experience any discrimination during his employment with the City of Bethlehem until after 2007, when Ralph Carp ("Carp") became Director of the Parks Department. (Doc. No. 20, ¶ 5). Carp apparently has been aware of Plaintiff's national origin since late 2007. (Doc. No. 20, ¶ 35).
As Director of the Parks Department, Carp oversees the divisions of parks, buildings, and golf course. (Doc. No. 23-2, ¶ 77). Carp is responsible for approximately forty-three (43) full-time employees, and Plaintiff is one of three minorities among the employees supervised by Carp. (Doc. No. 20, ¶ 63) (Doc. No. 23-2, ¶¶ 77-78). The 2010 Census shows that the City of Bethlehem is comprised of thirty-two percent (32%) Hispanics. (Doc. No. 23-2, ¶ 79).
A. Plaintiff Wanted a Promotion to a Class 12 Sprayer Position.
Plaintiff holds an active pesticide sprayer license, and he performs some spraying duties in his current position. (Doc. No. 20, ¶ 56) (Doc. No. 23-2, ¶¶ 83). Plaintiff receives compensation at the Class 12 rate on the occasions that he performs pesticide spraying duties, but Plaintiff is not otherwise compensated at the Class 12 rate. (Doc. No. 20, ¶ 56). Plaintiff claims that he requested that Carp promote him to a Class 12 sprayer within the Parks Department, but Carp refused. (Doc. No. 23-2, ¶¶ 81-82). Carp testified that there has not been an open Class 12 sprayer position in the Parks Department since Carp began working there, and Plaintiff has presented no evidence to the contrary. (Doc. No. 21, Ex. B, 100:12-101:2). Plaintiff contends that he has been waiting for the City to post a full time Class 12 pesticide sprayer job, so that he can bid on the position. (Doc. No. 21, Ex. A, 83:5-6) (Doc. No. 23-2, ¶¶ 83-84). Caucasian employees have received promotions from Carp. (Doc. No. 23-2, ¶ 82).
A Class 12 sprayer position at the golf course apparently became vacant at some point in time, but Plaintiff did not apply for the position. (Doc. No. 20, ¶ 19). Plaintiff testified that when he went to put his name on the "bid sheet" for the position at the golf course, the position was gone. (Doc. No. 20, ¶ 19) (Doc. No. 23, ¶ 85). Instead of filling the open Class 12 position at the golf course, Carp eliminated the position from the budget. (Doc. No. 23-3, ¶ 86). The golf course spraying duties are now being performed by the superintendent of the golf course. (Doc. No. 20, ¶ 20) (Doc. No. 23-2, ¶ 87). Plaintiff acknowledged that the superintendent of the golf course holds a sprayer license. (Doc. No. 21, Ex. A, 93:4-6).
On November 18, 2009, Jean A. Zweifel, Director of Human Resources for the City, sent Plaintiff a letter explaining the decision to deny Plaintiff's request for a Class 12 pay increase with respect to his current job duties. (Doc. No. 21, Ex. C). Ms. Zweifel explained that Plaintiff was already being compensated at the rate of pay for a Class 12 position for the limited occasions when Plaintiff actually performs spraying tasks. (Doc. No. 21, Ex. C). Ms. Zweifel also explained that former sprayer position at the golf course was a Class 12 position, because it involved spraying "almost every day." (Doc. No. 21, Ex. C). In denying Plaintiff's request, Ms. Zweifel noted that Plaintiff's spraying licensure had been considered, and Ralph Carp had been consulted. (Doc. No. 21, Ex. C).
B. Plaintiff Wanted a Position at the Ice Rink.
Plaintiff wanted to work at the ice rink, because it involved the opportunity to work overtime. (Hearing Transcript, 05/29/12, 40:18-22). Plaintiff contends that he should have been sent to work at the ice rink based on seniority. (Doc. No. 20, ¶ 28) (Doc. No. 23-2, ¶ 28). Instead, a Caucasian co-worker, Ed Marks, was given a temporary assignment at the ice rink.(Doc. No. 20, ¶ 28) (Doc. No. 23-2, ¶¶ 27, 28, 29, 111, 112). Plaintiff has more seniority than Mr. Marks. (Doc. No. 20, ¶ 27) (Doc. No. 23-2, ¶¶ 27, 28, 111). Plaintiff never formally applied for an open position at the ice rink, and it is not clear that Plaintiff ever even asked to work at the ice rink in any capacity.*fn1 (Doc. No. 20, ¶ 27) (Doc. No. 23-2, ¶¶ 27, 29).
C. Plaintiff Requested Reimbursement for Some License Fees.
Plaintiff attended classes necessary to maintain his pesticide license, and he submitted documentation for the City to reimburse him for some of those classes. (Doc. No. 23-2, ¶¶ 113-114) (Doc. No. 20, ¶ 52). Plaintiff testified that he was not reimbursed for some of the classes, because the City required additional documentation, but Plaintiff had nothing else to submit.*fn2
(Doc. No. 21, Ex. A, 130:13-18). Plaintiff was unable to specify exactly what classes he had attended for which he was never reimbursed. (Doc. No. 21, Ex. A, 132:12-15). Plaintiff did not request reimbursements after his request was denied in 2011. (Doc. No. 21, Ex. A, 140:1-141:5). Plaintiff believes that the City paid for unidentified Caucasian co-workers to attend other kinds of classes. (Doc. No. 21, Ex. A, 138:8-131:17). However, Plaintiff offered no evidence of the individuals, the classes they took, or the documentation submitted by those individuals.
D. Plaintiff Was Disciplined for Fighting with Chuck Yenca.
In January 2008, while acting as the Union Shop Steward, Plaintiff
approached a Caucasian, non-union co-worker, Chuck Yenca, regarding
Yenca's overtime work. (Doc. No. 23-2, ¶¶ 95, 96). The confrontation
escalated to a verbal altercation between Yenca and Plaintiff. (Doc.
No. 23-2, ¶ 96). Carp documented this incident in a memorandum to
Plaintiff on January 17, 2008. (Doc. No. 20, ¶ 41). According to
Carp's January 2008 memorandum, three City employees witnessed the
incident and reported that Plaintiff was the aggressor.*fn3
(Doc. No. 21, Ex. B). As a result of the incident, both
Plaintiff and Yenca were disciplined by Carp. (Doc. No. 23-2, ¶¶ 96,
97) (Doc. No. 20, ¶ 39).
Specifically, Yenca and Plaintiff were both required to attend mandatory conflict resolution counseling. (Doc. No. 20, ¶ 39). Additionally, Plaintiff was issued a Final Warning, or a "Last Chance Agreement," in lieu of suspension based upon his existing disciplinary record. (Doc. No. 20, ¶ 40) (Doc. No. 23-2, ¶¶ 37, 40). The January 2008 memorandum cites a prior altercation with another co-worker, Mike Tulio, at which time Carp instructed Plaintiff to communicate with co-workers in a professional and respectful manner. (Doc. No. 21, Ex. B).
The January 2008 memorandum indicates that Plaintiff had failed to follow Carp's instructions regarding getting along with and communicating with co-workers. (Doc. No. 21, Ex. B). The memorandum cites "multiple incidents involving you and other employees" in the past year, and notes that Plaintiff had been arrested for violence, which Carp found to be a "disturbing pattern [that] must be addressed." (Doc. No. 21, Ex. B). Carp concluded that "[b]ased upon the most recent incident, combined with the other incidents in the past year," the City issued Plaintiff a Final Warning regarding his insubordinate, disruptive, and aggressive behavior. (Doc. No. 21, Ex. B). The Final Warning was later limited to one year on the condition that Plaintiff attend anger management classes. (Doc. No. 20, ¶ 43) (Doc. No. 23-2, ¶ 33).
E. Defendant Carp Allegedly Made Comments that Offended Plaintiff.
In 2008, following the altercation between Plaintiff and Yenca, Plaintiff attended a meeting with Carp to discuss the incident. (Doc. No. 20, ¶ 8). The meeting took place a couple of days after the altercation. (Doc. No. 21, Ex. B, 71:5-11). At the meeting, Carp referred to Plaintiff as "street smart," which Plaintiff found racially derogatory and offensive. (Doc. No. 20, ¶ 10). Plaintiff interpreted the comment to mean that Hispanics do not have anything other than street smarts. (Doc. No. 20, ¶ 11). In response, Plaintiff asked Carp why he used the term ...