United States District Court, E.D. Pennsylvania
For SHERMAN ELLIS, Plaintiff: ADAM C. LEASE, LEAD ATTORNEY, ARI RISSON KARPF, KARPF KARPF & CERUTTI, BENSALEM, PA.
For BUDGET MAINTENANCE, INC., Defendant: COLLEEN M. O'DONNELL, JACQUELINE K. GALLAGHER, OBERMAYER REBMANN MAXWELL & HIPPEL LLP, PHILADELPHIA, PA.
MEMORANDUM OF LAW RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
MICHAEL M. BAYLSON, United States District Judge.
Sherman Ellis, a black male, has brought this § 1981 retaliation action against his former employer, Budget Maintenance, Inc. Budget provides custodial services to various commercial clients. Ellis claims that Budget fired him in retaliation for complaining about four swastikas that were graffitied on the wall of a janitor's closet in one of the client locations that Budget services. Ellis has not brought a claim for direct discrimination based on his race.
Budget responded to the suit by answering Ellis's complaint. After conducting discovery, Budget moved for summary judgment. The Court held a hearing on summary judgment on June 5, 2014.
II. Undisputed Facts
A. Complaints About Poor Performance and Ellis's Termination
Budget was founded by John Allen, who is the current president of the company. Budget operates a commercial cleaning business and employs individuals to clean premises owned or maintained by its clients, including the locations at issue in this case, Urban Outfitters in the Navy Yard in South Philadelphia and SEI in Oaks, Pennsylvania. ECF 25 at 26 ¶ 1. Ellis was hired as a second-shift cleaning and maintenance supervisor and assigned to Urban Outfitters in November 2011.
ECF 25 at 27 ¶ 4. As a supervisor, Ellis was charged with making sure all the cleaners were performing their nightly duties, including emptying trash cans, vacuuming and mopping floors, straightening out conference rooms, cleaning the glass on the doors, and cleaning and restocking the restrooms and kitchens. ECF 29 at ¶ 17.
Budget's Work Rule #31 of its Employee Handbook states:
If a customer of Budget Maintenance, Inc. asks that a Company employee be removed from a job site or building, that employee may be terminated, depending upon the circumstances, at the direction of Budget Maintenance, Inc.
ECF 25 at 28 ¶ 12. Ellis acknowledges he was aware of the handbook and that it applies to him. ECF 25 at 237 ¶ 5.
Urban Outfitters made several complaints about Ellis's work and the work of those he supervised. ECF 25 at 31-34. Budget officials, including president John Allen, also observed Ellis's poor performance firsthand. ECF 25 at 31 ¶ ¶ 24-25. Eventually, Urban Outfitters requested Budget to remove Ellis from the job. ECF 25 at 35 ¶ 47. John Allen decided to transfer Ellis to SEI, another Budget client, in Oaks, Pennsylvania. ECF 25 at 35 ¶ 48. At SEI, Allen directly supervised Ellis. ECF 25 at 36 ¶ 53. Allen told Ellis that his main duty was to use a machine called a " chariot" to clean the floors of the cafeteria and the main lobbies. ECF 25 at 36 ¶ ¶ 54-55.
SEI made several complaints about the condition of the cafeteria floor and other responsibilities held by Ellis. ECF 25 at 36-39 ¶ ¶ 57-71. On Wednesday, December 5, 2012, Allen and an SEI manager performed their weekly walk-through inspection of the premises. They discovered that the cafeteria was in " atrocious" condition. ECF 25 at 43 ¶ 92. On that day, SEI requested that Budget remove Ellis from SEI for unsatisfactory performance. ECF 25 at 43 ¶ 93. Allen called Ellis on Monday, December 10, 2012. He told Ellis that there was a problem at SEI and not to come to work. ECF 25 at 45 ¶ 101. John Allen was the sole decision maker regarding firing Ellis. Allen did not consult with any other Budget staff prior to making his decision to terminate Ellis's employment. ECF 25 at 45 ¶ ¶ 105-06.
Ellis's last day of work for Budget was on Friday, December 7, 2012. ECF 25 at 43 ¶ 99. Budget continued to pay Ellis through December 28, 2012. ECF 25 at 46 ¶ 107. Ellis did not realize he had been terminated until he stopped getting paid. ECF 25 at 46 ¶ 108. After his termination, Ellis filed for unemployment benefits with the ...