United States District Court, E.D. Pennsylvania
THOMAS N. O'NEILL, Jr., District Judge.
Plaintiff, Carl Lewis, "a black Jamaican male, who was 58 years old at the time of his separation from" defendant Temple University Health System, Dkt. No. 33-1 at ¶ 1, asserts claims against Temple and defendant Joseph Moleski for race discrimination and retaliation under the Civil Rights Act of 1866, 42 U.S.C. § 1981, race discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., wrongful termination discrimination and retaliation under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and race and age discrimination and retaliation under the Pennsylvania Human Relations Act, 43 Pa. Stat. § 951, et seq. Now before me is defendants' motion for summary judgment (Dkt. No. 32), plaintiff's response and counterstatement of material and disputed facts (Dkt. No. 33), and defendants' reply (Dkt. No. 34). For the reasons that follow, I will grant defendants' motion.
Plaintiff began work at Temple in the role of executive chef/kitchen manager in August 2005, Dkt. No. 33-5, and in 2007, he became executive chef/kitchen manager/food purchasing manager. Lewis Dep. 82:2-13. Plaintiff contends that he had been performing the function of "purchasing manager" "from the beginning of his employment and thereafter." Dkt. No. 33-1 at ¶ 10. In his June 2010 annual performance evaluation, plaintiff received a score of 2.27 out of 3.0 for a rating of "performance consistently meets standards." Dkt. No. 33-8. In his June 2011 performance evaluation, plaintiff received a score of 2.15 out of 3.0, again receiving a rating of "performance consistently meets standards." Dkt. No. 33-9. Plaintiff testified that he received annual salary increases while employed at Temple. Lewis Dep. at 87:1-3.
In June 2011, Moleski was hired as the director of Temple's hospitality and nutrition services. Moleski Dep. at 10:23-11:24. Plaintiff then directly reported to Moleski. Id. at 13:16-14:6. Moleski testified that when he began working at Temple, "in the beginning, we just started out and there was a lot of resistance to trying to get the department to run according to, you know, healthcare regulations and efficiency standards, and there was a lot of pushback from Mr. Lewis, a lot of resistance." Moleski Dep. at 57:11-18. Plaintiff testified that
Moleski, from the very first day that he joined Temple, he has displayed a very hostile behavior towards me, continue to call me in his office, let me know that he preferred to hire young college kids from universities because they are more smarter and more educated. And he continue to escalate his aggressive behavior to me every opportunity that he gets....
Lewis Dep. at 148:8-16. Plaintiff also testified that Moleski "just displayed a very aggressive behavior towards me. Very strong, very, very assertive, which is not the normal tone of a new manager or a department head coming on board. And... at no time have seen him display that to the other managers." Id. at 106:14-19.
Plaintiff testified that, shortly after Moleski arrived at Temple, plaintiff verbally reported Moleski's "aggressive behavior" to Lasherrial Mallet, who was a labor relations specialist at Temple at the time of the events at issue. Lewis Dep. at 167:16-168:1; Mallett Dep. at 9:18-10:8. Plaintiff testified that Mallett "explained to [him] that [he] need[ed] to put it in writing." Lewis Dep. at 166:24-167:3. Plaintiff also testified that when he spoke to Mallett he "explained to her the situation about the hiring of the young people and the verbiage that he was using towards my age. Towards my age. And how they were - offensive they were, and she agreed that she was going to have a verbal conversation with [Moleski]." Id. at 174:17-24. Mallett, however, testified that she "did not meet with [plaintiff] until after he filed a [written] complaint, that was the first time I met with him regarding his complaint." Mallett Dep. at 56:10-13.
Instead, Mallett, testified that within a month of Moleski's arrival at Temple it was Moleski who came to her "complaining about Mr. Lewis being very combative when presented with tasks to do. Tasks such as putting together the inventory system or feeling like Joe should not have been questioning some of his methods." Id. at 33:19-23. To that end, in July 2011, soon after his arrival at Temple, Moleski emailed plaintiff regarding excess milk inventory, explaining "[w]e cannot afford to have perishable stock on hand aging that we do not need." Dkt. No. 32-1 at ECF p. 62. On August 5, 2011, Moleski emailed Lewis asking him to "discontinue the practice of ordering in fresh fish too early" and to "ensure the quantity ordered is in alignment with our actual sales to reduce waste." Id. at ECF p. 66. On August 9, 2011 Moleski sent plaintiff another email in which he explained to plaintiff that out of the 107 portions of fish that plaintiff had ordered and prepared, only 29 servings had been sold. Id. at ECF p. 67.
In an August 5, 2011 email, plaintiff responded to Moleski's initial email about the fish order saying, "[t]oday you reprimand[ed] me openly at our department meeting about the fish, in the presence of other staff members and kitchen supervisors. I was very embarrassed and felt belittled and disrespected by you." Id. at ECF p. 66. Plaintiff went on to complain that
[o]ver the past 8 weeks you have demonstrated a lot of hostility towards me[.] I am not sure as I never had a relationship with [you] prior to you working here, even though I have tried very hard to accomplish[ ] almost every assignment[ ] and direction[ ] that you have given me[.]
On August 17, 2011, Moleski sent an email to his supervisor Dale Schlegel, a vice president at Temple, expressing his concern that plaintiff "flew off the handle yesterday when I told him there were three pallets of paper in the hallway near the main hospital storeroom that needed to be removed immediately...." Id. at ECF p. 73. Moleski wrote that plaintiff "became very angry, loud and defiant to me. I persisted in my request and he had them removed but with too much drama, pushback and excuses." Id . Moleski explained that he had discussed plaintiff's "inappropriate behavior with HR" and wrote that they "would be developing a corrective action plan to address this conduct and other performance issues." Id . One week later, on August 22, 2011, Moleski emailed plaintiff asking "[h]ow did we have 5 cases of choc[olate] milk expire that had be thrown out as waste? Over ordering is my guess. Do you have another explanation?" Id. at ECF p. 75.
Plaintiff testified that two to three months after Moleski's arrival, plaintiff had a conversation with Schlegel, during Schlegel's normal Wednesday "morning walk" through the kitchen, where plaintiff "told him I was not happy about the treatment that I was receiving from Joe Moleski. And... he said to me, if there is an issue, I need to send a report to HR." Lewis Dep. at 121:9-124:9. On September 14, 2011, plaintiff filed a formal harassment complaint form with Temple's human resources department. Dkt. No. 32-1 at ECF p. 77. In his "detailed account of the incident, " plaintiff wrote:
Un job strain [sic], not having the right tool[s] to do my job[, ] daily harassment, undue stress which is affecting [sic] my health[.] Not recognizing my position as a department head, daily treat of my job [sic]. Expected to accomplish a large amount of work in a short amount of time with no control over how and when with what tools said work will get done. I have been performing job well prior to my new boss com[ing] on board[.] Insulting me in the presen[ce] of others, racial profiling, soliciting information from subordinates on my performance.
Id. Mallett received plaintiff's written complaint and scheduled a meeting with him. Mallett Dep. at 56:14-57:7. She testified that when she met with plaintiff about his discrimination complaint, plaintiff was:
[b]asically saying that he didn't have the tools to do his job, he felt like [Moleski] wasn't being clear about what he wanted in terms of the inventory system, which was a recurring theme in a lot of the conversations that I had with [Moleski].
He said that he felt like [Moleski] was soliciting information, he did say that from his subordinates about who was doing the ordering and why was so much food being ordered at one time.
Then at the end of the conversation he felt like he was being racially targeted I think is what he used. He didn't say racial profiling, I think he said he was being targeted. That is the sum of it. I don't recall like detailed, but I know that was the sum of the conversation.
Mallet Dep. at 61:14-62:7.
Mallett explained that when she asked for an explanation of plaintiff's complaint he "said that he feels [Moleski] was trying to get rid of all the black people in the department." Id. at 63:11-13. She asked plaintiff "why he felt that way, and he said [Moleski] wants to bring in his own people and he wasn't able to articulate why he felt that way because at the time no one had been terminated." Id. at 63:16-20. Mallet testified that she felt that plaintiff's complaint of race discrimination was untruthful because she "asked him to explain or give me reasons why he thought that and he said because all the black managers are being fired, and I said there have been no black managers that have been fired so I need you to elaborate and he did not." Id. at 81:19-82:6. At plaintiff's deposition, when asked whether he had told Mallett "that [he] felt as though [ ] Moleski wanted to get rid of all the black managers and wanted an all-white department" he responded "[a]bsolutely not" and that he had not made such a statement at any time during his employment at Temple. Lewis Dep. at 262:7-20.
Mallet testified that after her meeting with plaintiff she "talked to [Moleski's] subordinates who are all African American and in some way, shape or form have, not necessarily reporting relationship, but they work with [Moleski], asked them if they ever experienced any feelings of racial discrimination and they said no." Mallett Dep. at 64:17-23. Among the employees with whom she spoke was Porter, who according to Mallett's testimony, she asked "if he ever felt like [Moleski] was treating him unfairly or did he have any reason to think that he was being racially discriminated against, and he said no." Id. at 65:3-66:4. Mallett also testified that she spoke with Dwayne Wyatt, another Temple employee, also black, who "said that he never experienced any racial discriminatory feelings." Id. at 67:-22. Mallett testified that when she spoke to Moleski about plaintiff's complaint
[o]f course he denied [ ] discriminating against him. He felt like he just wanted him to get the work done. He just wanted Chef to put the inventory system in place, he wanted him to stop over ordering things. That is all it was about for him. And Chef to not be so combative.
Id. at 69:15-22. Following her investigation of plaintiff's complaint, she "was not able to substantiate his claims of discrimination based on his race." Id. at 72:19-21.
Moleski testified that Mallett never told him about plaintiff's formal harassment complaint and that the first time that he learned of the complaint was when plaintiff filed this lawsuit. Moleski Dep. at 89:6-13; see also id. at 90:23-91:3 ("[A]fter [plaintiff] went on a corrective action plan, I guess he went to [Mallett] and she wanted to talk to me about it, but I didn't know about any formal complaint or anything like that."). Mallett, however testified that she met with Moleski and "told him that the complaint was filed and told him what the nature of the complaint was." Mallett Dep. at 64:24-65:2. She conveyed to him that she
received a complaint, I already spoke[ ] to [plaintiff] about his complaint, and basically he is saying that you are discriminating against him, that he does not have the tools to do his job, feels like you are not clear about what you want as far as the job is concerned, and that was basically it.
Id. at 69:7-14. Mallett then testified that
Of course [Moleski] denied the discriminating against [plaintiff]. He felt like he just wanted [plaintiff] to get the work done. He just wanted [plaintiff] to put the inventory system in place, he wanted him to stop over ordering things. That is all it was about for him. And [plaintiff] to not be so combative.
Id. at 69:16-22.
On October 10, 2011, just under a month after plaintiff filed his harassment complaint with human resources but well after Moleski's email to Schlegel discussing the development of a corrective action plan to address plaintiff's performance issues, Moleski provided plaintiff with a Performance Improvement Plan (PIP) in the form of a memorandum outlining concerns about plaintiff's performance. Dkt. No. 32-1 at ECF p. 89-90. Specifically, the memorandum identified concerns regarding plaintiff's "Interpersonal Skills, Leadership Defensiveness, Cooperation, " "Accurate Information, " "Over Ordering Supplies/Over Production/Ordering System, " "Sanitation/Safety/Survey Readiness, " and "Attendance Policy Enforcement." Id. at ECF p. 89. The memorandum identified corrective actions that plaintiff was to take within ninety days with respect to each of the identified concerns and explained that "[i]f you cannot correct your behavioral deficiencies and meet my expectations, your employment may be terminated." Id. at ECF p. 89-90. Plaintiff refused to sign the memorandum. Id. at ECF p. 90. Stacey Vahey, who was Temple's associate hospital director for human resources at the time of the events at issue, Vahey Dep. at 8:2-3, testified that "the performance improvement ...