United States District Court, E.D. Pennsylvania
[Copyrighted Material Omitted]
For Lavar Davis (2:12cv5628), Plaintiff: ALPHONSO ARNOLD , JR., LEAD ATTORNEY, Harrisburg , PA.
For Solid Waste Services, Inc., T/D/B/A J.P. MASCARO & SONS (2:12cv5628), Defendant: ALBERT A. DEGENNARO, JASON T. SABOL, WILLIAM F. FOX , JR. Audubon , PA.
For Benjamin Gay (2:12cv5629), Plaintiff: ALPHONSO ARNOLD , JR., LEAD ATTORNEY, Harrisburg , PA.
For Solid Waste Services, Inc., T/D/B/A J.P. MASCARO & SONS (2:12cv5629), Defendant: ALBERT A. DEGENNARO, JASON T. SABOL, WILLIAM F. FOX , JR., Audubon , PA.
For Thomas Bruce Johnson (2:12cv5630), Plaintiff: ALPHONSO ARNOLD , JR., LEAD ATTORNEY, Harrisburg , PA.
For Solid Waste Services, Inc., T/D/B/A J.P. MASCARO & SONS (2:12cv5630), Defendant: ALBERT A. DEGENNARO, JASON T. SABOL, WILLIAM F. FOX , JR., Audubon , PA.
EDUARDO C. ROBRENO, J.
Plaintiffs LaVar Davis, Thomas Bruce Johnson, and Benjamin Gay (collectively, " Plaintiffs" ) each filed an employment discrimination action against Defendant Solid Waste Services, Inc. d/b/a J.P. Mascaro & Sons (" Defendant" ), alleging disparate treatment on the basis of race, in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e. Due to the common issues of law and fact posed by the three actions, the Court granted Plaintiffs' motion to consolidate the cases for pre-trial purposes. After conducting discovery, the parties filed cross motions for summary judgment. Defendant has also filed a motion to strike Plaintiffs' response to its motion for summary judgment. For the reasons that follow, the Court will grant the motion to strike in part, grant Defendant's motion for summary judgment in its entirety, and deny Plaintiffs' joint motion for summary judgment.
I. FACTUAL BACKGROUND
Defendant is a privately owned company that collects and disposes of solid waste from residential, commercial, industrial, and municipal customers, primarily in Pennsylvania. Def. Statement Undisputed Facts ¶ 2, ECF No. 49-1. Plaintiffs are
African-American men employed by Defendant to drive garbage collection vehicles at Defendant's Souderton Division (" Souderton" ). Id. ¶ ¶ 1, 14, 54, 90. Plaintiff Gay continues to work for Defendant to this day; Plaintiffs Davis and Johnson had their employment terminated in November 2011 and March 2012, respectively. Id. ¶ ¶ 18, 57, 91.
Plaintiffs allege that, during the course of their employment, they regularly experienced race-based disparate treatment, primarily at the hands of Dmytro " Sonny" Macelak, the General Manager of Souderton at the time. Id. ¶ 8. They say that African-American drivers at Souderton were assigned to drive unsafe trucks, were compensated at lower rates, were subjected to derogatory and profane comments, and were singled out for disciplinary actions and burdensome work assignments. Cumulatively, those alleged actions amount to a hostile work environment, Plaintiffs contend. Plaintiffs Davis and Johnson further contend that the termination of their employment was the product of race-based animus. As for Plaintiff Gay, he says that he was " constructively discharged" due to race discrimination, and that he was unlawfully suspended without pay on at least one occasion.
Defendant tells a wholly different tale, asserting that all of its trucks were safe to drive, that black and white employees were treated equally with regard to work assignments and disciplinary practices, that Macelak directed his profane language at people of all races, and that Plaintiffs Davis and Johnson were fired for legitimate, nondiscriminatory reasons -- Davis for habitual tardiness, and Johnson for intentional abuse of company equipment. Defendant argues that there is simply no evidence of the disparate treatment Plaintiffs describe, nor is there evidence that any of the adverse actions they identify were motivated -- in whole or in part -- by racial discrimination.
Accordingly, as this case turns on whether there is record evidence supporting Plaintiffs' factual assertions, it is necessary to recite in some detail the specific evidence relevant to Plaintiffs' claims. The Court notes at the outset, however, that Plaintiffs have made that task difficult by neglecting to cite to the record in numerous places and, when they choose to cite to it at all, by citing to lengthy documents without including a page number -- for example " Appendix, Vol. I." See, e.g., Pl. Resp. ¶ 8, ECF No. 53. As discussed in more depth herein, those failures violate Federal Rule of Civil Procedure 56(c). Nonetheless, Plaintiffs do cite with specificity to some materials, and the Court has undertaken its own review of other materials in the record, which it may (although it need not) consider in its analysis. Fed.R.Civ.P. 56(c)(3) ( " The court need consider only the cited materials, but it may consider other materials in the record." ).
A. Unsafe Trucks
In their deposition testimonies, Plaintiffs identify four garbage trucks that they consider to be dangerous to operate. Gay
Dep. 81:17-23, Sept. 6, 2013, ECF No. 53-3; Johnson Dep. 16:1-6, Apr. 16, 2013, ECF No. 49-3; Davis Dep. 191:23-24, Apr. 15, 2013, ECF No. 49-2. Three of those trucks are " front-end trucks," designated as " FE-99," " FE-104," and " FE-116."  The fourth allegedly hazardous truck is a " container truck" labeled " CT-15." All of those trucks were quite old at the time Plaintiffs operated them, with the model years of the front-end trucks ranging from 1994 to 1997. Def. Mot. Summ. J., Ex. 31, Souderton Front-End Fleet, ECF No. 49-13. Three of the vehicles -- FE-99, FE-104, and CT-15 -- were spare trucks that were used only when other trucks were not available. Def. Statement Undisputed Facts ¶ ¶ 146, 148; see also Def. Mot. Summ. J., Ex. 30, Truck Usage Log, ECF No. 49-13. Plaintiffs describe numerous problems with each of the four vehicles, ranging from lack of air conditioning, to holes in the floorboard, to fire hazards. In response, Defendant has introduced deposition testimony from Souderton staff describing the procedures Defendant had in place to ensure its trucks were safe, as well as evidence of the significant maintenance work performed on the vehicles during the relevant time period. Def. Statement Undisputed Facts ¶ ¶ 136-141, 162.
Both parties have also introduced evidence regarding the frequency with which Plaintiffs operated those allegedly dangerous vehicles. Plaintiff Gay testified that he rarely or never drove trucks FE-99 and FE-116, that he drove FE-104 " [m]aybe three times," and that he refused to drive CT-15 after driving it on three occasions. Gay Dep. 86:5-7, 87:24-88:3, 89:19-20, 94:22-95:17. Similarly, Plaintiff Davis said in his deposition that he refused to drive CT-15 and FE-99, and Souderton records show that he drove FE-99 a total of twenty-one times during the last year of his employment, and that he drove FE-116 just five times. Davis Dep. 180:4-8; Truck Usage Log. There is no evidence that Davis ever drove FE-104. As for Plaintiff Johnson, he testified that he operated CT-15, but it is unclear with what frequency, and the records show that during the last fifteen months of his employment he drove FE-99 only three times and FE-104 twice. Johnson Dep. 14:22-23; Truck Usage Log.
In sum, the evidence shows that Plaintiffs drove the spare trucks (FE-99, FE-104, and CT-15) occasionally, at best. As for the remaining truck -- FE-116 -- Plaintiffs Gay and Davis rarely, if ever, drove that vehicle. Plaintiff Johnson, on the other hand, regularly drove FE-116 for a period of time. From June 2011 through his termination in March 2012, FE-116 seems to have been Johnson's primary vehicle, as he drove it 111 times during that period. Truck Usage Log.
Defendant has also introduced evidence of the trucks that other drivers, both black and white, drove while employed at Souderton. That evidence shows that all four allegedly dangerous trucks were driven by people of both races. First Macelak Dep. 223:18-224:21, July 23, 2013, ECF No. 49-5; Second Macelak Dep. 54:7-12, Sept. 10, 2013, ECF No. 49-6; Truck Usage Log;
Def. Statement Undisputed Facts ¶ ¶ 150-152, 157. Although Plaintiff Gay testified to the contrary during his deposition, claiming that he did not see white drivers driving the four allegedly dangerous trucks, that claim is undermined by his admission that he generally left on his route before other drivers arrived and finished before they returned. Gay Dep. 67:17-20, 113:4-14:24. Even FE-116, which was primarily driven by Johnson during the relevant period, was regularly driven by white drivers before Johnson took over. Truck Usage Log; Def. Statement Undisputed Facts ¶ 151. As Plaintiffs themselves note, in 2011, FE-116 was assigned to black drivers (including Johnson) 86 times, and to white drivers 69 times. Pl. Statement Undisputed Facts ¶ 48, ECF No. 50-2. Moreover, the evidence shows that the other trash-collection vehicles were distributed between black and white drivers, with several black drivers driving some of the newest trucks. Def. Statement Undisputed Facts ¶ ¶ 153-156.
B. Rates of Compensation
Plaintiffs also challenge " Defendant's wage payment practices," although it is unclear precisely which aspect of those practices they say is discriminatory. See Pl. Resp. ¶ 17. The record evidence regarding those practices is as follows: Macelak testified at his deposition that drivers of front-end trucks are paid a flat " day rate" plus a per-can " lift rate" for each garbage can that the driver services. Def. Statement Undisputed Facts ¶ 169. Rates of compensation are based on driver tenure, performance, and cost of living adjustments. Id. Defendant submitted its employee compensation information for 2011, which shows no race-based disparities in compensation. Id. ¶ ¶ 171-173.
Macelak further testified that drivers are not permitted to work more than sixty hours each week, pursuant to Department of Transportation regulations. First Macelak Dep. 64:12-24. Sometimes drivers went over that amount -- for instance, if a truck broke down and other drivers were needed to help that driver out, the drivers providing assistance may exceed their hour limit. Id. at 65:4-24. If that happened, drivers recorded their excess hours in a log that was reported to the Department of Transportation. Id. at 66:1-67:15. Plaintiffs assert that black drivers were more frequently asked to assist other drivers in finishing their routes, which resulted in violations of the sixty-hour requirement. Beyond that bare contention, however, there is no evidence supporting that claim. Rather, the dispatcher for Souderton -- who all parties agree was responsible for arranging driver assistance -- testified that drivers of both races needed and provided assistance with their routes on occasion. Def. Statement Undisputed Facts ¶ ¶ 165-68.
C. Unfair Disciplinary Actions and Work Assignments
In addition to their assertions regarding the driver assistance program, Plaintiffs say that black drivers were singled out for discipline and for burdensome work assignments. The only evidence of that disproportionate treatment is Plaintiff Gay's deposition testimony, in which he stated that (1) three white employees had truck accidents that caused substantial damage, yet he did not think their employment had been terminated (Gay Dep. 108:16-110:9); (2) one white employee often failed to attend monthly required " safety meetings," but was allowed to make them up later, a courtesy he did not think was extended to black employees (id. at 160:17-161:11); (3)
he was subjected to more rigorous evaluations of his vehicle inspections than other employees (id. at 166:9-167:16);  and (4) black employees were sometimes asked to clean the " blades" (a part of the truck) of other truck drivers (id. at 165:19-24). Gay admitted, however, that he had not seen the personnel files for other employees (id. at 110:15-111:10), and that any instances in which he was asked to clean other drivers' blades were " so long ago, [he] can't remember who or where" (id. at 165:23-24). He also asserted that he alone was subjected to rigorous evaluations of his vehicle inspections, not that black employees in general were treated differently in that regard. See id. at 166:9-167:16.
In response, Defendant has introduced the disciplinary records of many of the white drivers. Those records show that, like Gay (and other black drivers), white drivers received disciplinary warnings for truck accidents, failing to properly inspect their vehicles, safety violations, unexcused absences, poor customer service, and the like. Def. Mot. Summ. J., Ex. 35, Disciplinary Records, ECF No. 49-18. The records also show that, of the three employees Gay identified as not being properly disciplined for their accidents, one was in fact terminated and another was suspended. Id.
D. Derogatory and Profane Comments
One of Plaintiffs' primary assertions is that Sonny Macelak, the General Manager of Souderton, was verbally abusive toward the black drivers. Gay testified that Macelak frequently used profanity when talking to him and would make derogatory comments to him, such as telling him " You walk around here like you have a stick up your ass," and calling him a " dumb motherfucker." Gay Dep. 113:8-9, 132:22. Although Plaintiffs concede that Macelak used profane language with both black and white employees (see Pl. Mem. Supp. Mot. Summ. J. 4, ECF No. 50-1), Gay testified that, overall, the derogatory comments seemed more often to be directed at black employees. As an example, he explained that Macelak would often berate the drivers during monthly " safety meetings," and when doing so he seemed to be looking at the black employees, ...