United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, Magistrate Judge.
In this case, two African-American plaintiffs, James Hollinghead and Mark Simpson, have brought claims under federal and state law alleging that the City of York and the York Sewer Authority discriminated against them on the basis of race, and retaliated against them after they complained of a specific instance of perceived workplace intimidation and racial discrimination. Specifically, these claims arose out of an incident that occurred in July 2010, when James Hollinghead discovered what he believed to be a noose hanging within a building at the York Wastewater Treatment Plant in York, Pennsylvania that was undergoing substantial construction activity, including extensive electrical work being performed by Monacacy Valley Electric, Inc. Although he lacked any direct proof, Hollinghead was convinced that one or more unidentified employees of Monacacy must have placed the noose in order to harass or intimidate him and other African-American employees.
Hollinghead informed his union steward, Mark Simpson, about the matter, and Simpson in turn brought it to the attention of officials with the City of York - including the Mayor. These officials then promptly investigated the incident, and the City of York's Mayor, C. Kim Bracey, directed the police department to undertake a criminal investigation into the matter to determine whether a hate crime may have occurred. Ultimately, these investigations - which involved multiple interviews with witnesses, conducted by multiple parties - were inconclusive, and it was determined that it was just as likely that the rope Hollinghead observed may have been used in connection with the movement of conduit or other construction materials within the building. It was also never determined who placed the rope in the location where Hollinghead first saw it, and, therefore, no one was ever accused of wrongdoing in connection with this incident. Ultimately, the investigations into Hollinghead's and Simpson's claims were inconclusive.
In this case, Hollinghead and Simpson claim that in addition to responding inadequately to the perceived instance of intimidation and racial discrimination, their employer subsequently retaliated against each of them by directing them to undertake dangerous work assignments that resulted in each man sustaining injuries. Hollinghead and Simpson pursued administrative relief before the Equal Employment Opportunity Commission, and subsequently brought this federal lawsuit alleging claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), 42 U.S.C. § 1983 for alleged First Amendment retaliation and 14th Amendment violations, and under 43 Pa. Cons. Stat. Ann. §§ 951 et seq. (the "PHRA").
This action now comes before the Court on two motions for summary judgment filed by the remaining two defendants, the City of York and the York Sewer Authority. The motions remained dormant for a period of time while the parties engaged in what were partially successful efforts to mediate a settlement of the plaintiffs' claims. The motions are now fully briefed and ripe for disposition. For the reasons that follow, it is recommended that the motions be granted in their entirety, because there is insufficient evidence to support the plaintiffs' claims under any legal theory in this case.
James Hollinghead is employed by the City of York as a wastewater treatment plant operator. (Doc. 61, City of York Statement of Facts ("City SMF") ¶¶ 1-2) Mark Simpson is also an employee of the City of York, and has worked at the Wastewater Treatment Plant for more than 13 years, and during the time relevant to this action was employed as a filter dryer operator. (Doc. 56, York Sewer Authority Statement of Facts ("Authority SMF") ¶¶ 51-52; Doc. 75-1, Aff. of Mark Simpson, ¶ 2) Simpson was a union steward at the time of the incidents alleged in this case.
During 2010 and 2011, the York City Wastewater Treatment Plant was undergoing construction work. During this time, at least four contractors were working in a building known as the Ostara Building, which is part of the Wastewater Treatment Plant. The record is somewhat in dispute as to which of the contractors may have been working within the Ostara Building in July 2010, but it is undisputed that one of these contractors was Monacacy Valley Electric, Inc. ("Monacacy"). Monacacy employees were performing electrical wiring and related work within the Ostara Building pursuant to a contract with the Authority, including the installation of new breakers and running new conduit throughout the building. (City SMF ¶¶ 9, 13.)
In July 2010, Simpson was working in a building at the Wastewater Treatment Plant known as the Solids Handling Building, which is connected to the Ostara Building. (Id. ¶¶ 14, 15.) Simpson did not work in the Ostara Building, but would nevertheless use a bathroom and locker room in that facility from time to time. (Id. ¶ 14.) During that time, Simpson complained to Chad Arnold, the Process Control Manager at the Wastewater Treatment Plant about the condition of the shower in the Ostara Building. (Id. ¶ 15.) Apparently, Simpson complained that workmen had been standing in the shower with muddy boots on and had left the shower in a muddy condition. (Id.) Simpson first brought his complaint to the foreman from Monacacy, but he did not care about the matter, and refused to do anything about it. (Id.) Arnold told Simpson to put a lock on the bathroom door, which Simpson did. (Id. ¶¶ 15-16.) However, someone from Monacacy approached Arnold and informed him that the electricians needed access to the bathroom in order to complete their wiring work, and the bathroom was thereafter unlocked. (Id. ¶ 16.)
On July 16, 2010, Hollinghead discovered what he believed to be a noose hanging two to three feet above his head, dangling from a beam in the ceiling near the bathroom in question. (City SMF ¶ 21.) Two days later, Hollinghead brought this discovery to Simpson's attention. Simpson, the union shop steward, informed Chad Arnold about the matter on July 19, 2010, a Monday. Two days later, Simpson reported the matter to Steve Douglas, the Plant Manager. (Authority SMF ¶¶ 23-24.) Hollinghead did not actually see anyone hanging the rope, but he is nevertheless certain that it was placed by someone employed by Monacacy. (Id. ¶¶ 25-26.) On August 26, 2010, Hollinghead submitted a formal grievance about the matter with the City of York. (City SMF ¶ 19.) This grievance alleged that there has been "racial intimidation by outside contractor." (Id. ¶ 20.) This grievance appears to have inspired the City of York to initiate a substantial inquiry in the matter, including the following:
Chad Arnold spoke with two supervisory employees of Buchart-Horn Engineers/Basco Associates, the company responsible for construction inspection services at the Wastewater Treatment Plant, to discuss the alleged noose and the potential involvement of any subcontractors;
Chad Arnold went to the work site to view the hanging rope;
Steve Douglas communicated with Ostara representatives in order to obtain photographs from within the building, some of which depicted ropes hanging from the ceiling more than one week before Hollinghead discovered the rope that he perceived to be a noose, which were being used to haul buckets or other material
On July 22, 2010, Thomas Ray, the Business Administrator for Human Resources for the City of York was made aware of the incident by Mayor C. Kim Bracey, who directed him to investigate the matter and to determine if the rope had been placed for a racially motivated purpose or to intimidate Hollinghead and Simpson;
Mayor Bracey directed the City of York Police Department to initiate a criminal investigation to determine if a hate crime had occurred;
Thomas Ray conducted interviews with the following individuals: Mark Simpson; James Hollinghead; Chad Arnold; Rhonda Hyslop, the Project Representative for Ostara, the company that was working to takeover operations within the building; Larry Smith, the Project Representative for Monacacy; Kyle Smith, Project Representative for Walabax Construction Services, Inc., another subcontractor that had worked at the Wastewater Treatment Plant; City employees Frank Rizutto, Jessica Quinn, and Veronica Whaley-Chavez; and Steve Douglas, the Plant Manager;
Detective Andy Baez conducted a criminal investigation into the incident; and
Michael O'Rourke, Business Administrator for the City of York, considered a grievance filed by Hollinghead, and convened a meeting with Simpson, Hollinghead, and Mark Andreozzi, their local union representative, to address the matter.
As part of his investigation, Ray took notes during his interviews, and was provided with additional information that may have been relevant to his inquiry. Included among this information was pictures of one or more ropes that had been hanging in the building, and reports of multiple ropes used in the building for the purpose of hauling conduit, buckets, or other construction-related materials. During Ray's interview with Rhonda Hyslop, the Ostara representative, she told him that she had seen a rope hanging in the building as early as July 9, 2010, and that it was tied to a bucket; a picture depicting such a rope was also provided to Steve Douglas, the Plant Manager. Monacacy's Vice President, Larry Smith, told Ray that none of his employees was involved in the incident, and told Ray that the rope was in the building when his crew began their work. Smith suggested that another contractor, Walabax, likely used the rope, and also charged that Walabax employees had tracked mortar into the shower area that inspired Simpson's initial complaints.
At the end of his investigation, Ray completed a written report of his investigation. (Doc. 62, Ex. 4-D) Ray determined that there was no conclusive evidence that any particular contractor or individual placed the rope in the building for a racially motivated purpose or to intimidate Hollinghead or Simpson. Ray found that although it was possible that the rope had been placed by someone to intimidate Simpson and Hollinghead, it was also equally possible that the rope, configured as it was when it was discovered by Hollinghead, was being used to raise or lower tools or conduit being used by Monacacy or mortar being used by Walabax. Furthermore, Ray's investigation did not establish any connection between the rope found by Hollinghead, and another rope discovered later at a completely separate location. (City SMF ¶ 61.)
Although Ray was unable to find that the rope had been placed by Monacacy employees to intimidate or otherwise discriminate against Hollinghead and Simpson, he determined that the "incident [was] very unfortunate, " (Doc. 62, Ray Report), and he made a number of recommendations in his report. Among them, Ray urged the City and its boards and authorities to conduct pre-bid conferences that emphasized to potential contractors that discrimination directed toward any employees was absolutely prohibited. Ray also recommended that any contractor awarded a bid should be required to sign a certificate of non-discrimination, and to make clear that any discriminatory act found to have been committed on City property would be met with a firm response and potential criminal charges. (City SMF ¶¶ 62-65, and Doc. 62, Ex. 4, Ray Report) Ray also provided summary reports to Simpson and Hollinghead regarding the outcome of his investigation into their complaint, and emphasizing the recommendations that he would be making to City officials emphasizing the importance of ensuring non-discriminatory policies were honored and enforced. (Doc. 62, Ex. F)
In addition to this investigation that Thomas Ray spearheaded, the City of York Police Department undertook its own investigation into the matter pursuant to direction from the Mayor. The matter was assigned to Andy Baez, a detective with the York City Police Department who had been a detective since April 2009, and who had been involved in more than 100 criminal investigations as a detective and police officer. (Id. ¶¶ 71-74.) Baez began his investigation on the morning of July 22, 2010, - less than one week after Hollinghead first discovered the rope. Baez first met with Mark Simpson in a conference room at the Wastewater Treatment Plant, and Simpson provided his version of the events, and showed Baez cell phone photographs of a rope hanging in one of the buildings about which he was complaining. Baez asked whether the rope was still hanging in the same place, and Simpson said that it was but that it was no longer tied in the form of a noose. Baez and Simpson went to the location to observe the rope, but found it was no longer there. Baez took photographs of the location and took measurements of the area where the rope had been depicted in Simpson's photographs. These measurements indicated that it was approximately 10 feet from the lower metal rail to where the noose was located, leaving approximately five or six feet from the noose to the floor. (Id. ¶¶ 75-76.)
Baez was also introduced to Greg Meyers, the construction inspector from Buchart-Horn/Basco Associates. Meyers did not provide any information to indicate that he believed the rope had been placed as a form of intimidation or harassment.
Baez reviewed the photographs that were taken at the Wastewater Treatment Plan on July 22, 2010. (Doc. 62, Ex. C) Baez compared these photographs to a copy of a photograph that was presented to him as having been taken by an Ostara representative, which showed a rope hanging from the ceiling. (City SMF ¶ 79.) Baez also looked at the cell phone photographs showing the rope tied into the form of a noose. (Id.) Based upon his own observations, Baez concluded that the rope either could have been configured in such a way in order to move tools and buckets between the lower and upper floors, or it could have been tied in this fashion to symbolize a noose. (Id. ¶ 80.) However, Baez was unable to conclude that the rope had been placed in order to intimidate or harass Simpson or Hollinghead, and on balance he believed it was more likely that the rope was being used for legitimate construction purposes and not to intimidate or harass other employees. (Id. ¶ 81.)
Because of the relative scarcity of evidence, including an absence of notes, letters, or threats made directly to the complainants, Baez's investigation was placed into "Open" status pending further evidence that might be discovered. As of August 16, 2010, the date of the Supplemental Police Report, no other information or evidence had been provided by either Simpson or any other employees at the Wastewater Treatment Plant. (Id. ¶ 82.)
After Ray and Baez concluded their own investigations, Michael O'Rourke, the Business Administrator for the City of York, undertook his own investigation into a grievance that Hollinghead filed on August 26, 2010, alleging "racial intimidation by outside electrical contractor." (Id. ¶ 84; Ex. 6-A, Grievance.) Thus, on September 7, 2010, O'Rourke convened a meeting that included Simpson and Hollinghead, as well as James Gross, the Director of Public Works for the City, and Mark Andreozzi, the Business Agent for Teamsters Local 776. (City SMF ¶ 85.) At this meeting, O'Rourke allowed Simpson, Hollinghead, and Andreozzi wide latitude to discuss their concerns regarding the incident. O'Rourke later prepared a report in which he observed that this incident had been investigated by the Deputy Business Administrator for Human Resources and by the York City Police Department. (Id. ¶ 88.) O'Rourke was critical of management at the Wastewater Treatment Plant for failing to meet with African-American employees at the plant to reassure them that management would not tolerate any racial discrimination in the workplace, and he was also critical of Simpson and Hollinghead for not more timely reporting the matter to management. O'Rourke thought that the matter could have been handled better, and he encouraged all involved to act more quickly if there were any similar events reported in the future. O'Rourke also emphasized that outside contractors would be held to the same standards as City employees in terms of the courtesy, respect, and nondiscriminatory conduct that was expected and required of them. Finally, O'Rourke noted that the City would commit to taking a more aggressive approach to discovering culprits found to have been involved in any future incidents. (Doc. 62, Ex. 6, 6-B)
Following this prompt, multi-faceted response to Hollinghead's concerns, some eleven months then elapsed. Then, on June 6, 2011, Hollinghead was given a work assignment that involved pouring chlorine into the sand filter in the sand filter building, and monitoring the filter hourly. (City SMF ¶ 93; Doc. 62, Ex. 1, Deposition of James Hollinghead ("Hollinghead Dep.") at 160-61:22-24) As a result of this assignment, Hollinghead became sick, sought medical treatment at an emergency room and in follow-up appointments with doctors, and wound up missing five days of work, for which he was paid. (City SMF ¶ 94; Hollinghead Dep. at 174:11-175:9.) Hollinghead speculates that he was given this work assignment as retaliation for having filed grievances and complaints regarding the rope incident in July 2010, nearly a year earlier. Although he claims to have had other disputes with co-workers regarding racially insensitive comments at various times, and suggests without detail that he endured "forms of discipline or things of that nature, " (Hollinghead Dep. at 180:20), Hollinghead did not identify any other instances of alleged retaliation, and his entire retaliation claim appears to be based upon the chlorine assignment. Hollinghead claims that Chad Arnold and Steve Douglas were behind the retaliation. (Hollinghead Dep. at 177-178.)
As part of the assignment that involved pouring chlorine in the sand filter, the facts indicate that the two maintenance employees who were actually adding the chlorine were Caucasian. These employees were continuously in the sand filter building for several hours introducing the chemical into the bed of the filter. According to Arnold, he assigned Hollinghead and a trainee to check the water level in the sand filter a couple of times and to keep their eyes on the water level, and to make any adjustments that might be necessary. Hollinghead appears to dispute this characterization, although his deposition provides relatively little detail about what exactly he was assigned to do to the sand filter. It is undisputed, however, that Hollinghead became sick following the assignment, required medical treatment, and missed work on paid leave.
Simpson has also claimed that he suffered retaliation as a result of speaking out regarding the incident with the noose or rope, and for pursuing grievances relating to the matter. Thus, Simpson claims that on March 15, 2011, he was given a dangerous work assignment in retaliation for filing a complaint with the EEOC. Specifically, Simpson claimed that he was given an assignment to clean up a spill in the centrifuge room, he fell while performing this task, landing on his wrist and back, and that his calls for help were ignored. (Authority SMF ¶¶ 71-72.) Simpson had claimed that the City denied his workers' compensation benefits claim stemming from this incident in retaliation for filing an EEOC complaint. However, the City of York and Simpson have since resolved this aspect of Simpson's claim, and their settlement of this claim extends to all of Simpson's claims against the City that were brought in this lawsuit. (Doc. 60, at 2) Accordingly, Simpson is claiming racial discrimination, retaliation, and related claims only against the York Sewer Authority. Hollinghead is pressing his claims against both of these parties.
Notably, however, the undisputed facts of this case reveal that neither Hollinghead nor Simpson has ever been employed by the Authority. The plaintiffs endeavor to argue that the Authority is actually a division or agency of the City, or that the Authority should be deemed one of their employers, but the facts do not bear out this argument. Indeed, the evidence is uncontroverted that the Authority has zero employees, and instead is managed by a five-member appointed board that serves in a voluntary capacity.
The evidence is undisputed that Hollinghead and Simpson are employed by the City of York, which provides their compensation and employment benefits. The evidence is also undisputed that all of Hollinghead's and Simpson's work assignments were prescribed by their supervisors - who work for the City of York. (Authority SMF ¶¶ 36-50 and 74-88.) It appears that the plaintiffs believe that they should be deemed to be employees of the Authority as well as the City because the Authority owns the building where the men worked, and because Steve Douglas, the Plant Manager, reported regularly to the Authority. However, we find no facts in the record to support the plaintiffs' argument that they ...