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Kargbo v. Philadelphia Corp. for Aging

United States District Court, E.D. Pennsylvania

April 22, 2014

THOMAS KARGBO
v.
PHILADELPHIA CORPORATION FOR AGING

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For THOMAS KARGBO, Plaintiff: CHRISTINE E. BURKE, LEAD ATTORNEY, ARI RISSON KARPF, PAUL C. LANTIS, KARPF KARPF & CERUTTI, BENSALEM, PA.

For PHILADELPHIA CORPORATION FOR AGING, Defendant: LARRY BESNOFF, LEAD ATTORNEY, OBERMAYER REBMANN MAXWELL & HIPPEL LLP, PHILA, PA; IVO BECICA, OBERMAYER REBMANN MAXWELL & HIPPEL LLP, PHILADELPHIA, PA.

OPINION

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Michael M. Baylson, United States District Judge.

MEMORANDUM RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiff brings claims under Title VII of the Civil Rights Act and the Age Employment Discrimination Act related to his termination of employment as a services coordinator at Defendant, the Philadelphia Corporation for the Aging. Defendant has moved for summary judgment on all claims.

I. Factual Background

The following is a recitation of the facts in the light most favorable to Plaintiff.

Defendant provides social and health care services to senior citizens and employs 200 service coordinators who facilitate the provision of long term care services. Plaintiff was hired on June 4, 2012 as a service coordinator for Defendant to provide social and health care benefits to senior citizens. Plaintiff is a black male from West Africa who is fluent in four languages including Russian, and was fifty-two years old at the time of his termination. Plaintiff was assigned to a team of six services coordinators who worked under Elise Mendelsohn, a 45-year-old white woman. The other members of Plaintiff's team were a 36-year-old Caucasian, a 39-year-old Asian, a 57-year-old Hispanic, a 39-year-old Caucasian, and 59-year-old Caucasian. Undisputed Fact ¶ 49. Plaintiff was the only African American on Mendelsohn's team. Undisputed Fact ¶ 49.

As a new hire, Plaintiff began work as a probationary employee, and completed approximately five weeks of training before working under Mendelsohn full time. Plaintiff testified that during a staff meeting in mid-July Mendelsohn said to him, " I don't believe you are the right man for this job. You are 52 years old. This job is normally for young college graduates." Kargbo Dep. at 144:2-5. Plaintiff testified that Mendelsohn made a similar comment to him in a private meeting after he sent an email to the wrong supervisor in August. Kargbo Dep. at 197:3-15. Plaintiff testified that he met with Mendelsohn's supervisor, Pearl Graub, twice to complain about these comments. Kargbo Dep. at 127:15-33; 128:2-7.

Plaintiff testified that Mendelsohn commented to clients on three occasions that " she does not believe a black man from West Africa, Thomas Kargbo, can speak Russian so fluently." Kargbo Dep. 135:7-9.[1] Plaintiff also testified that Mendelsohn " told me I'm dyslexic, if I have learning disabilities." Kargbo Dep. at 170:24-171:1. Plaintiff testified that he reported these comments to Graub in July or August that he also reported the comments to the Director of Human Resources, Raymond Polak some time in mid-July or August after he did not hear back from Graub. Kargbo Dep. at 128:14-17 & 134:14-24.

Plaintiff testified that after he made these complaints, Mendelsohn started treating him poorly by " not giv[ing] me the attention that I need from a supervisor," and " [i]f I walk up to her to request maybe for clarification, she will slam her door before I get to her office" " [a]nd she will yell at me from across the office . . . instead of shooting me an email like she did

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earlier when I started, she would just yell, hey, Thomas, come here." Kargbo Dep. at 160:16-161:14. Plaintiff also testified that Mendelsohn would " not shake my hand if I reach out to her" ; " she ignores me more of the time" ; and " she would not allow me to come closer to her if she has to work with us in a group. I always have to stay at the back. . . . She [would] make room for my white colleagues except me in the office . . . If we have to meet at our desk to explain to use about the new applications, she will allow my colleagues to be closer to her. Even if I go there first, she will push me back . . . She would say, Thomas, can you step aside, please." Kargbo Dep. at 162:19-166:16.

On September 19, 2012, Mendelsohn completed Plaintiff's three-month evaluation. Pl's Ex. I. Plaintiff received an overall satisfactory report, but was listed as unsatisfactory in the categories of effective communication and learning orientation. Pl's Ex. I. Mendelsohn wrote in the comments section that Plaintiff struggled with " fundamental computer knowledge" and was not learning new concepts, repeating the same questions at each tutorial. Pl's Ex. I. Plaintiff testified that he believed Mendelsohn wrote negative comments on his three-month evaluation because he complained about her. Kargbo Dep. at 142:17-22. Mendelsohn recommended Plaintiff's employment be continued, and the comments outlined six improvement goals for the following month. Pl's Ex. I.

Mendelsohn subsequently documented a number of performance problems related to Plaintiff's ability to use the computer systems and to input client information correctly. Pl's Ex. K; Def's Ex. HH (documenting Plaintiff's failure to submit required paperwork for a month after it was due). On October 17 Mendelsohn wrote an interoffice memorandum discussing several complaints about Plaintiff's performance that she received from clients, one from a service provider, and Plaintiff's continued computer skills problems. Def's Ex. L. Mendelsohn concluded that Plaintiff had not met the improvement goals established in the three-month evaluation, but did not recommend discipline or termination. Def's Ex. L.

On October 24 Mendelsohn submitted a discipline form recommending termination. That day she received a call from a client's son saying Plaintiff had threatened the client after the son had called Mendelsohn with concerns about Plaintiff's performance on October 17. Pl's Exhibit K; Def's Exhibit LL. The form recounted the prior complaints and performance problems as well as this call from the client's son. Pl's Ex. K. The termination recommendation was approved by Graub, Polak, Ann Danish (Graub's supervisor), and Steve Touzell, the Director of Long Term Care. Pl's Exhibit K. Plaintiff was terminated on October 31, 2012.

A. Disputed Material Facts

1. Plaintiff's Discrimination Complaints

Plaintiff testified that he complained five times about Mendelsohn's comments and about his three-month evaluation. Plaintiff testified he complained in mid-July 2012 to Pearl Graub about Mendelsohn's remark about his age at the staff meeting. Kargbo Dep. at 127:15-22; 143:5-10. Plaintiff testified that he complained to Graub in July or August about race discrimination after Mendelsohn's comment about Plaintiff's ability to speak Russian. Kargbo Dep. at 128:2-7; 129:11-19. Plaintiff complained a third time to the Director of Human Resources, Raymond Polak, in late July or August about the racial comments because he did not get a response from Graub. Kargbo Dep. at 131:10-24. Plaintiff testified he complained a fourth time to Polak after he

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received his three-month evaluation in September, telling Polak he believed Mendelsohn " evaluates me this way because I have complaints against her." Kargbo Dep. at 154:2-9. Finally, Plaintiff testified that he complained to Heloise Lobo-Gallagher who worked in Human Resources under Polak, approximately two or three weeks before he was terminated in October " to inform her that I have not had any feedback from my superiors regarding the complaint that I had made." Kargbo Dep. at 176:20-178:12.

Plaintiff also met with Lobo-Gallagher after he was terminated in November, 2012. This meeting was documented by Defendant, and Logo-Gallagher testified it was the first time she met with Plaintiff. Def.'s Ex. I. Graub and Pollack also denied that Plaintiff made any complaints before he was terminated. Graub Dep. at 54:17-55:15.

2. Termination Decision

There is a dispute over who was involved in the decision to terminate Plaintiff. Defendant contends Mendelsohn made no recommendation about termination, but instead Graub and Polak alone decided to recommend Plaintiff be terminated. According to Defendant, Mendelsohn brought her concerns about Plaintiff's performance to her supervisor, Graub. Then Mendelsohn and Graub met with Polak in HR, and during this meeting Graub and Polak alone decided to recommend termination. Graub reported this recommendation to her supervisor, Ann Danish, who brought it to her supervisor, Touzell, who approved the termination. Then Graub directed Mendelsohn to prepare a PCA Discipline Form terminating Plaintiff.

Plaintiff contends the evidence shows this decision was initiated by Mendelsohn, who by all accounts was in the meeting with Graub and Polak when the termination decision was made. In response to Plaintiff's interrogatories Defendant identified Mendelsohn, along with Graub, Danish, Touzell and Polak as those who participated in the termination decision. Pl's Ex. A. Plaintiff also points Polak's deposition in which he testified Mendelsohn approached him seeking to terminate Plaintiff. Finally, the PCA Discipline Form Mendelsohn completed recommended termination, suggesting that Mendelsohn did initiate the termination process.

3. Replacement

Defendant contends it did not hire anyone to replace Plaintiff, but instead distributed his cases among sixteen service coordinators. Defendant submitted a post-deposition affidavit signed by Pearl Graub stating that no one person replaced Plaintiff, and that his assignments were given to sixteen different people. Def.'s Ex. K. Plaintiff points to Mendelsohn's deposition testimony that Defendant hired Patricia Kirby (age 28) to join Mendelsohn's team two months after Plaintiff was terminated. Mendelsohn Dep. at 11:2-11. Considering the evidence in the light most favorable to Plaintiff will allow a jury to find Kirby replaced Plaintiff.

II. Procedural History

Plaintiff brings claims for age discrimination under the ADEA alleging he was terminated because of his age and/or in retaliation for his complaints about discrimination on the basis of his age. Plaintiff also brings claims under Title VII of the Civil Rights Act alleging he was terminated because of his race, he was subject to a hostile work environment because of his race, and/or he was terminated because of the complaints he made about discrimination on the basis of race. Defendant moves for summary judgment on all of Plaintiff's claims. Oral argument on the summary judgment motion was held on

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April 15, 2014. Defendant submitted a letter brief on April 17, 2014 responding to questions posed at oral argument. (ECF No. 36).

III. Analysis

Summary judgment is appropriate " if the pleadings, the discovery and disclosure materials on file, and any affidavits show 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(c). An issue is " genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is " material" if it might affect the outcome of the case under governing law. Id.

A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial burden can be met simply by " pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325. After the moving party has met its initial burden, the adverse party's response must, " by affidavits or as otherwise provided in this rule [ ] set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e). Summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing " sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255.[2]

A. ADEA Claim

The ADEA prohibits age discrimination in employment against any person over age forty. 29 U.S.C. § 623(a)(1). " Because the prohibition against age discrimination contained in the ADEA is similar in text, tone, and purpose to that contained in Title VII, courts routinely look to law developed under Title VII to guide an inquiry under ADEA." Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995) (reversing summary judgment for the employer). But a plaintiff must show age discrimination was the " but-for" cause of the adverse action. Gross v. FBL Financial Services, ...


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