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Broady v. ABM Janitorial Services, Inc.

United States District Court, E.D. Pennsylvania

February 10, 2015



MICHAEL M. BAYLSON, District Judge.

I. Introduction

Plaintiff Earlene Broady contends that she was dismissed from a job site and then terminated from her employment with Defendant ABM Janitorial Services ("ABM") because she complained that her on-site manager was giving preferential treatment to Puerto Rican employees. Broady brings claims for retaliation under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), 42 U.S.C. § 1981, and the Pennsylvania Human Relations Act (43 P.S. §§ 951-963). Accordingly, the Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 1343(a)(4) over Broady's federal law claims and supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) over Broady's state law claim. ABM has moved for summary judgment. For the reasons that follow, ABM's motion will be denied.

II. Procedural Background

Broady filed her complaint on November 20, 2013 (ECF 1). ABM answered on February 19, 2014 (ECF 10). On June 24, 2014, the parties stipulated to dismissal of Broady's claims for race discrimination, national origin discrimination, and hostile work environment, leaving only her claims for retaliation (ECF 22). ABM filed its Motion for Summary Judgment on October 13, 2014 (ECF 32). Broady filed her Opposition on October 31, 2014 (ECF 35), and ABM replied on November 10, 2014 (ECF 36).

III. Factual Background[1]

Broady is a black, Trinidadian woman who was hired by ABM in September 2011. Broady Tr. 12, 53, 76 (Pl. Ex. A). She was hired as a "floater" cleaner, one of several in a "City Hall floaters pool" who filled in for absent permanent employees at various, mostly governmental, buildings in Philadelphia. Id. at 53, 70-71, 76-77. In April 2012 Broady accepted an assignment to fill in at a non-governmental building at 833 Chestnut Street, usually covered by floater cleaners from a separate "general floater pool." Id. at 83-85; Gilbert Tr. 23 (Pl. Ex. D).

In about September 2012, Broady requested a schedule modification which was denied by her on-site manager, Angela Pagan. Broady Tr. 100-101, 103-104. Broady then complained to Pagan that Pagan, who is Puerto Rican, was "showing favoritism to the Puerto Rican people." Id. at 108. The basis for Broady's complaint was that "they had this other Puerto Rican guy that used to come in late every day and she [Pagan] didn't have a problem with it." Id. at 106.

On February 5, 2013, Broady again complained to Pagan about favoritism toward Puerto Rican employees. Id. at 185, 197-200. According to Pagan, Broady complained that "you are getting rid of us so you could bring in your Puerto Rican people." Pagan Tr. 52-53 (Pl. Ex. B). Pagan was "very offended and upset that she said that" and stated both in her testimony and in an email that she directed Broady to report to the floaters pool for a new assignment and did not want Broady working at 833 Chestnut again. Id. at 53; Pagan Email (Pl. Ex. L). Pagan's February 6, 2013 email summarizing the incident was sent to various ABM managers and administrators, including Tiffany Rex, an administrator of the general floaters pool, and William George, a human resources manager. Pagan Email (Pl. Ex. L); George Tr. 9-10 (Pl. Ex. C); Rex Tr. 10-11 (Pl. Ex. E).

In response to Pagan's email, George directed Rex to "please issue the floater [Broady] a disciplinary notice" for "discourteous actions, " which Rex proceeded to prepare. George Email (Pl. Ex. Q); Employee Corrective Action Notice (Pl. Ex. O). The parties dispute whether and to what extent Broady contacted anyone at ABM and anyone at ABM made efforts to contact Broady during the rest of February 2013. ABM Statement of Facts ¶¶ 68-70 (ECF 32-1); Broady Response to ABM's Statement of Facts ¶¶ 68-70 (ECF 35-1). But in a March 1, 2013 email to George that continued the email string started by Pagan, Rex wrote that Broady had not called in or returned to work since February 5th and requested "a termination letter due to abandonment of job." Rex Email (Pl. Ex. R). George issued a termination letter to Broady that same day. George Letter (Pl. Ex. N). ABM made no efforts to investigate the merits of Broady's complaint. George Tr. 42-43 (Pl. Ex. C); Brager Tr. 32-33 (Pl. Ex. W).

IV. Legal Standard

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 (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 (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 ...

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