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Kier v. F. Lackland & Sons, LLC

United States District Court, E.D. Pennsylvania

December 17, 2014

KEITH KIER, Plaintiff,

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Currently pending before the Court is the Motion for Summary Judgment by Defendants F. Lackland & Sons LLC and Storage Assets LLC (collectively " Defendants" ). For the following reasons, the Motion is granted.


A. General Information About the Parties

Lackland Self Storage (" Lackland" ) operated a facility located in King of Prussia,

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Pennsylvania that leased storage units and rented U-Haul vehicles. (Defs.' Mot. Summ. J., Ex. B, Dep. of Jose Falero (" Falero Dep." ) 17:19-18:13, Aug. 25, 2014.) Plaintiff was hired on July 15, 2011 as a yard person at Lackland's King of Prussia facility. (Defs.' Mot. Summ. J., Ex. A., Dep. of Keith Kier (" Kier Dep." ), 9:3-7, 15:18-20 Aug. 25, 2014.) In that capacity, he was in charge of overall maintenance and cleaning of the facility. (Id. at 11:99-19.) His official employer was Defendant Storage Assets LLC (" Storage Assets" ). (Kier Dep. 9:8-11; Defs.' Mot. Summ J., Ex. C, Dep. of Kelly Antos (" Antos Dep." ), 17:19-24, Aug. 27, 2014.) Defendant F. Lackland & Sons LLC has no relationship to Plaintiff's employment or the King of Prussia facility. (Antos Dep. 18:21-19:6.)

Over the course of his employment, which lasted from July 15, 2011 to March 14, 2013, Plaintiff worked twenty hours a week. (Kier Dep. 15:12-17.) Only three employees worked in the King of Prussia location during Plaintiff's tenure with Storage Assets: (1) Gabrielle Carey, the Store Manager from July 2011 to February 4, 2013, and Bill Gulini, the Store Manager from February 4, 2013 onward; (2) the Assistant Manager Jose Falero and (3) Plaintiff, who worked as the yard person. (Kier Dep. 22:5-23:6, 165:23-166:2; Defs.' Mot. Summ. J., Ex. D, Dep. of William Gulini (" Gulini Dep." ) 13:2-15:2, Aug. 27, 2014.)

B. Plaintiff's Confrontation With A Customer

On February 23, 2013, Plaintiff had a problematic interaction with a customer. (Kier Dep. 89:2-8.) According to Plaintiff's description, Jose Falero was taking care of a customer in the front and Plaintiff was in the back area. (Id. at 89:10-12.) A customer came in and said that the was getting his car that had been in storage for a few months. (Id. at 89:12-15.) The customer apparently became agitated because the charge Falero had originally quoted was lower than would it actually cost to get it out, and Plaintiff decided to interject himself. (Id. at 89:15-21.) Some discussion began over the seats in the customer's car and the customer accused Plaintiff of stealing his car seats, at which point Plaintiff told the customer he should apologize. (Id. at 90:8-13.) After some additional back and forth between the customer and both Falero and Plaintiff about the price, Plaintiff called him a " f***ing drunk." (Id. at 90:15-21.) Plaintiff didn't want the situation to go any further, so he walked out the back door to allow things to cool down. (Id. at 91:1-5.) Another customer, Kenneth Green, witnessed this interaction while he was there returning a truck. (Defs.' Mot. Summ. J., Ex. G, Dep. of Kenneth Green (" Green Dep." ), 8:24-9:12, June 17, 2014.) Mr. Green recalled Plaintiff telling the customer " f**k you" and calling him a drunk, and stated that the customer was not engaging with Plaintiff. (Id. at 19:20-21:17.) Green did not detect any alcohol on the customer's breath. (Id.)

That same day, Gulini received either a voicemail or a text message from Jose Falero indicating that there was a " slight altercation" between a customer and Plaintiff. (Gulini Dep. 25:10-26:2.) Falero could not recall whether he specifically told Gulini that Plaintiff told the customer to " go f*** himself," but simply remembers explaining to him what occurred that night and that there had been a yelling altercation. (Falero Dep. 27:17-30:9.) Prior to receiving that message, Gulini already had some concerns about Plaintiff since his performance on the job was not to the standard that he expected. (Gulini Dep. 26:3-23.) Subsequently, Plaintiff approached Gulini on his own to describe the

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incident and told Gulini the customer was drunk, cursing, out of control, and carrying on in the office area. (Kier Dep. 80:19-86:8.)

C. Discovery and Investigation of Customer Complaint

Gulini would periodically check the U-Haul website or reviews of Storage Assets or Lackland. (Gulini Dep. 36:3-22.) In the course of doing so, on March 12, 2013, Gulini discovered a review by Kenneth Green, the customer who witnessed Plaintiff's altercation with the other customer, wherein he indicated that Plaintiff had used profanity and called the other customer a drunk. (Id. at 34:15-36:6, 38:10-40:6.) The review stated:

At the counter[,] one of your employee's started using profanity towards the customer a head of me. Words included f* *k you, you're a drunk. This poor guy paid his bill and did not return the insults. I'm 55 and NEVER witnessed a retail transaction that included an employee verbal [sic] abusing a customer. Shame on you U-Haul. I would end this partnership in a N.Y. min. No I will NEVER use U haul. If you want more feedback contact me. I would be happy to share this with any corporate person. (Defs.' Mot. Summ. J., Ex. H.) Notably, Gulini testified that when Falero first reported the incident, he did not tell Gulini that Plaintiff had used profanity or called the customer a drunk. (Gulini Dep. 62:14-21.) Gulini believed that use of profanity towards a customer warranted termination. (Id at 40:2-16.)

Upon discovering this review, Gulini contacted his supervisor, Operations Manager Manny Zamora, to notify him about his findings. (Gulini Dep. 41:7-11; Defs.' Mot. Summ. J., Ex. E., Dep. of Manny Zamora (" Zamora Dep." ) 21:8-22:12, Aug. 27, 2014.) Gulini also asked Falero to prepare an incident report about the events. (Gulini Dep. 52:5-8.) This report stated as follows:

On 2/23/13 at around 5:40 pm Mr. James Hanley, who was at the time renting parking spot 609 came in to discuss the account status and balance of his parking spot. He wanted to pay for the storage unit in order to vacate the space as he had sold the vehicle.
While discussing the account with Mr. Hanley, Keith our yardman told the customer that there was a tenant who had " custom made white sits [sic] that would fit his Chevy Nova vehicle" and that if he was interested to contact the tenant.
Mr. Hanley told Keith " I already have sits in the car, unless you guys stole them" in a joking/sarcastic matter, [sic] At that moment another customer walked in to return a U-haul truck rented earlier in the morning Mr. Kenneth Green. He witnessed the argument between Keith and Mr. Hanley, Keith took offense and told the customer " Hold up, what did you say? Why would you say something like that?" as he continued to mop the kitchen room. Then an argument ensued as the customer told Keith that he was joking and Keith told the customer to pay his " bill, you're a drunk" . Keith walked out of the office and the customer told Keith " I don't deserve to be talked to that way, I will have your job" and Keith replied " Do what you need to do" . I apologized to the customer and give him the Customer Service number as he was asking for it.
Also Mr. Kenneth [Green] was getting agitated about what just happened and said to me " What is wrong with him, treating customers like that" . I told Mr. Kenneth, that I will help him once the situation calms down and apologized to him and Mr. Hanley. Mr. Hanley

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paid for his storage unit and he told me he would pick up the receipt the next morning. Mr. Hanley came in on 2/25/2013 and picked up receipt from the payment.
After closing the office I called Bill around 6:40 pm and explained to him about the verbal altercation between Keith and Mr. Kenneth.

(Defs.' Mot. Summ. J., Ex. I.)

Zamora believed that this was " an issue" and drove down to the King of Prussia facility to speak with both Gulini and Falero about the events. (Zamora Dep. 24:8-17.) After Gulini left the room, Falero separately described the incident to Zamora in Spanish, indicating that Plaintiff " just exploded" and started screaming at the customer even though the customer was not even speaking to Plaintiff. (25:1-27:24.) After that conversation, Zamora spoke with someone in the outsourced Human Resources department of Storage Assets--Compensation Solutions--because he believed this to be " gross conduct," and Human Resources indicated that this was grounds for termination. (Id. at 30:7-31:10.)

Based on Plaintiff's conduct, Zamora made the decision to terminate Plaintiff. (Id. at 34:3-8.) Zamora explained that reviews and customers are important, especially at this store that was struggling, and a review like that could have hurt the store " big time." (Id. 39:13-23.) He went on to indicate that they take complaints from customers very seriously and although he tried to contact Mr. Green many times to apologize, Green never answered. (Id at 40:2-7.) Zamora remarked, " you can't speak to a customer like that no matter how wrong this customer is. You can't talk to customers like that." (Id. at 40:8-10.) Indeed, according to the Lackland Self Storage Employee Handbook, " While engaging in Lackland business, all employees are expected to conduct themselves in a professional manner. This includes being courteous and respectful to everyone the employee comes into contact with, including clients, vendors, and colleagues." (Defs.' Mot. Summ. J., Ex. J.) Plaintiff did not dispute that he called the customer a " f***ing drunk." (Kier Dep. 201:15-22.)

D. Plaintiff's Termination

On March 14, 2013, Gulini approached Plaintiff and told him that he was going to have to let him go because of the incident with the customer, and that he needed his key back. (Id. at 86:22-87:8.) Plaintiff was somewhat shocked since he was getting fired so far after the incident, but Gulini explained that he had just learned about the full incident from a customer complaint. (Id. at 87:10-24.) According to the Separation Notice, Plaintiff was terminated for " Profanity & verbal abuse towards a customer," with a remark that " Keith's behavior towards a customer is unprofessional and does not meet the standards of the company." (Defs.' Mot. Summ. J., Ex. K.) After Plaintiff's termination, Gulini and Falero initially took over Plaintiff's responsibilities until the cleaning job duties were outsourced to Jani-King, Incorporated; Plaintiff was not replaced. (Falero Dep. 45:3-20.)

E. Plaintiff's Allegations of Disparate Treatment

Plaintiff alleges that he was subjected to disparate treatment by his supervisor, William Gulini, due to his race. First, Plaintiff explained that, on two occasions, " [Gulini] would say like, oh, you are here. I should have locked the door. If you were coming, I would have locked the door, you know, weird statements like that. He would laugh. Sometimes Jose--but he would laugh and say I should have locked

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the door when I would come in with a good morning or how are you doing, and I should have locked the door." (Kier Dep. 37:5-13.) When asked if he understood Gulini to be joking, Plaintiff stated that he did not take it as a joke, but rather as Gulini not wanting him to be there, even though the door was never locked. (Id. at 37:14-23.)

On another occasion, the date of which Plaintiff could not recall, Plaintiff said that Gulini said that Plaintiff made him feel " uncomfortable." (Id. at 38:13-15.) Plaintiff could not recall what Gulini said to him or what was happening at the time, other than Plaintiff entering the office area where Gulini was working on a computer (Id. at 38:13-43:17.)

In addition, shortly after Gulini was hired on February 11, 2013, Gulini made Plaintiff keep a daily log of his tasks. (Id. at 164:22-165:2.) Specifically, Plaintiff had to start keeping track of his daily tasks, even though no other employees were required to keep a log. (Id. at 165:4-166:5, 229:6-12.) Gulini admitted that he required Plaintiff and not Falero to keep a log. (Gulini Dep. 23:8-24:3.) He explained, however, that the two men were in different positions, that because Plaintiff was working only twenty hours per week, Gulini did not have a lot of time with him, and that, in lieu of micromanaging, he allowed Plaintiff to keep a log to keep track of what exactly he was doing throughout the day. (Id. at 24:4-17.) Plaintiff never expressed any concern to Gulini about having to keep the log. (Id. at 24:18-22.)

Finally, Plaintiff complained that Gulini lacked enthusiasm to train him. (Id at 227:7-18.) He explained that Gulini seemed very half-hearted with respect to Plaintiff. (Id. at 227:21-228:8.) Indeed, even though Gulini seemed to have problems with Plaintiff's performance, Falero, who was an indirect supervisor for Plaintiff, did not. (Falero Dep. 22:14-23:23.)

F. Plaintiff's Allegation of Protected Activity

As noted above, the customer incident with Plaintiff occurred on February 23, 2013, and he was terminated on March 14, 2013. Approximately one week prior to his termination, however, Plaintiff claims that he engaged in protected activity. Plaintiff heard a " ruckus" and " yelling" inside the office and walked in to find an agitated-looking Gulini, Falero, and the back of a customer, who was black. (Kier Dep. 46:6-47:21.) Plaintiff heard Gulini instruct Falero to call the police, after which Gulini told Plaintiff to watch the customer and follow him to his unit, making some reference to stealing. (Id. at 49:1-50:12.) Plaintiff then got in the golf cart, went to the unit referenced by Gulini, and looked around for the customer, but did not see him. (Id. at 50:16-54:18.) Plaintiff then returned to the office, got Gulini, and together they drove around in the golf cart again. (Id. at 54:20-55:3.) At that point, Gulini explained to Plaintiff that he had a customer, who happened to be black, that lost his key and needed Gulini to cut his lock. (Id. at 58:14-17.) According to Plaintiff, that was normally done as a courtesy for customers, but Gulini was going to charge him for it and things got a little heated. (Id. at 58:17-23.)

At that point, Plaintiff began thinking that the company had treated other customers a lot better and cutting a lock was a minor thing to diffuse a situation. (Id. at 60:5-9.) So, Plaintiff said to Gulini, " you know, you are getting all out of hand because this is a black guy, man." (Id. at 60:9-11.) Gulini said nothing in response. (Id. at 60:15-24.) They then returned to the office, the police never came, Plaintiff never saw the customer again, and Plaintiff

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did not discuss the incident with either Gulini or Falero again. (Id. at 61:1-18.) After this incident, Plaintiff claimed that things between him and Gulini were " tight." (Id. at 80:9-18.) Plaintiff admits, however, that after this incident, Gulini did not treat him with any disrespect. (Id. at 95:8-11.) A week later, Plaintiff was terminated. (Id. at 81:3-22.) Gulini denies that Plaintiff ever complained to him in any way about Gulini's treatment of a customer or suggested that he mistreated a customer due to race. (Gulini Dep. 22:24-23:7.) Likewise, Falero denies ever hearing Plaintiff accuse Gulini of race discrimination. (Falero Dep. 15:20-24, 42:18-43:4.)

G. Procedural History

Plaintiff initiated the current litigation on February 11, 2014, and filed a First Amended Complaint on April 16, 2014. Plaintiff now has three causes of action as follows: (1) wrongful termination based on race and in retaliation for protected activity in violation of Title VII; (2) wrongful termination based on race and in retaliation for protected activity in violation of the Pennsylvania Human Relations Act; and (3) wrongful termination based on race and in retaliation for protected activity in violation of 42 U.S.C. § 1981.

Defendants filed the present Motion for Summary Judgment on September 22, 2014. Plaintiff responded on September 29, 2014, Defendants filed a Reply Brief on October 6, 2014, and Plaintiff submitted a Sur-reply Brief on October 7, 2014. The Motion is now ripe for judicial consideration.


Summary judgment is proper " 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)(2). A factual dispute is " material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For an issue to be " genuine," a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.

On summary judgment, the moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Bovle v. Cnty. of Allegheny. 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi's IGA Supermkts., Inc. v. Darling-Del. Co. Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold. Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).

Although the moving party must establish an absence of a genuine issue of material fact, it need not " support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). It can meet its burden by " pointing out. . . that there is an absence of evidence to support the nonmoving party's claims." Id. at 325. If the non-moving party " fails to make a showing sufficient to establish

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the existence of an element essential to that party's case, and on which that party will bear the burden at trial," summary judgment is appropriate. Celotex. 477 U.S. at 322. Moreover, the mere existence of some evidence in support of the non-movant will not be adequate to support a denial of a motion for summary judgment; there must be enough evidence to enable a jury to reasonably find for the non-movant on that issue. Anderson. 477 U.S. at 249-50.


Defendants move for summary judgment on Plaintiff's claims of racial discrimination and his claims for retaliation. The Court discusses ...

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