The opinion of the court was delivered by: William W. Caldwell United States District Judge
We are considering a motion for summary judgment filed by Defendant, Snyders of Hanover. This matter relates to the employment and subsequent termination of Plaintiff, Sanjay Bhanu, from Snyders. Plaintiff brought the instant lawsuit alleging national origin discrimination, hostile work environment, and retaliation. Defendant argues that Plaintiff has failed to provide sufficient evidence to establish any of his claims. We will examine the motion under the well-established standard. Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d. Cir. 2008). We "must view all evidence and draw all inferences in the light most favorable to the non-moving party, and may affirm a grant of summary judgment only if no reasonable juror could find for the non-movant." Id.
Defendant manufactures and distributes snack food products and maintains a manufacturing facility in Hanover, PA. In September 2001, Plaintiff was hired by Defendant as a machine operator. Upon beginning his employment, Plaintiff received a copy of Defendant's Employee Handbook. The handbook set forth Defendant's harassment policy, which prohibits harassment and encourages the filing of complaints, guaranteeing non-retaliation and confidentiality. Also in the handbook was an explanation of Defendant's progressive discipline policy, which provides four levels of offenses and corresponding discipline. Group 1 offenses can result in discharge from employment. Insubordination and sleeping on the job are both listed as Group 1 violations. Also listed in this group is altering the speed of a machine without supervisory approval "when typically required."
Kae Sterner was the Packaging Production Manager during the time of Plaintiff's employment. Travis Wolf was Plaintiff's direct supervisor at all times relevant to the instant action. Sterner was Wolf's supervisor. During his employment, Plaintiff received numerous disciplinary warnings. In June 2008, Defendant terminated Plaintiff for sleeping on the job.*fn1 Plaintiff appealed his termination to the Vice President of Human Resources, John Bartman, who reinstated Plaintiff. Following the reinstatement, Wolf gave Plaintiff positive work evaluations in 2008 and 2009.
In June 2009, Plaintiff complained to his supervisors that a co-worker, Ben Bish, threw a step-stool at him. Sterner investigated the incident and determined that Bish did not throw the stool at Plaintiff but did commit an unsafe act by throwing it toward Plaintiff. Bish was suspended for a week due to the incident.
In his deposition, Plaintiff testified that during his employment, Wolf gave him "problems," did not listen to him, and wrote him up for infractions of policies that were not typically enforced. Plaintiff also asserts that Wolf would stand with other employees and laugh at him. After a workplace incident, Plaintiff asked Wolf to take him to the nurse to have his eyes flushed. Wolf offered to urinate in his eyes. Wolf never said anything to Plaintiff about his ancestry or ethnicity. Plaintiff made a number of complaints about Wolf to Sterner, but never told Sterner that Wolf's actions were discriminatory.
On November 24, 2009, Plaintiff was working on two packing machines. One machine was designated as the primary machine and the other was used to package excess product. Any product not packaged by either machine ran into a runoff tub. Once the tub became full, Plaintiff was required to put the product back on the packaging line. The standard machine speed, with two packers, is 50 bags per minute ("bpm"), meaning each packer would pack 25 bags per minute. As the packaging began, Wolf noticed that one of the machines was set at 60 bpm. He instructed Plaintiff to reduce the speed to 50 bpm. At some point during the shift, the second packaging machine malfunctioned, resulting in a decrease of product being packaged and an increase of product in the runoff tub. To prevent excess product from entering the runoff tub, Plaintiff increased the speed on the primary machine to 60 bpm, requiring each packer to pack 30 bags per minute. Plaintiff did not tell Wolf that he had increased the speed of the machine, and the parties disagree about whether he was required to do so. Wolf later discovered that Plaintiff increased the machine's speed, and suspended Plaintiff for insubordination and changing machine speeds without supervisory approval. After investigating the incident, Sterner made the decision to terminate Plaintiff. Plaintiff appealed the termination, but it was upheld by Bartman.
Plaintiff filed complaints with the Pennsylvania Human Relations Commission ("PHRC") and the Equal Employment Opportunity Commission ("EEOC"). In September 2010, the PHRC issued findings, and on March 21, 2011, the EEOC adopted the state's findings and dismissed the charges. On June 11, 2011, Plaintiff filed the instant action. He alleges that Defendant terminated his employment because of his Indian ancestry, in violation of Title VII of the Civil Rights Act of 1964. Plaintiff also alleges hostile work environment and retaliation claims.
A. Affidavits of Bharat Pandey and Shashi Dilawri
In support of his claims, Plaintiff alleges that he was one of three Indian employees that experienced discriminatory treatment. Plaintiff provides the affidavit of Bharat Pandey, who explains One day when I was on break, Chandrika was sitting with us in the breakroom (sic) she was crying and said, Ben threw a box at her because she complained about a packing problem. She was pregnant at that time and was afraid of Ben's treatment . . . Later same situation happened with another Indian worker Harish. Ben threw a box at Harish.
(Doc. 30-2). Plaintiff also submitted the affidavit of Shashi Dilawri, the wife of Harish Dilawri, an employee of Defendant. The affidavit provided My husband will come home and sometimes complain that his supervisor Travis and some co-workers would give him a hard time at Snyders. One day he complained that Operator Ben got angry at him and throw (sic) a box and bags at him and verbally abused him. My husband was very upset about how they treated him. He also said that when he complained to the supervisor Travis, no action was taken.
Defendant argues that we should strike the affidavits of Pandey and Dilawri, because they fail to meet the requirements of Federal Rule of Civil Procedure 56(c)(4). This rule provides "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." FED. R. CIV. P. 56(c)(4). Defendant contends that the affidavits of Pandey and Dilawri contain hearsay and were not made on personal knowledge. We agree that the affidavits contain hearsay. However, the Third Circuit has stated that "hearsay evidence produced in an affidavit opposing summary judgment may be considered if the out-of-court declarant could later present the evidence through direct testimony." J.F. Feeser, Inc. ...