United States District Court, E.D. Pennsylvania
For ZINDORA CRAWFORD, Plaintiff: STEPHANIE J. MENSING, LEAD ATTORNEY, MENSING LAW LLC, PHILADELPHIA, PA.
For VERIZON PENNSYLVANIA, INC., Defendant: SARA A. BEGLEY, LEAD ATTORNEY, RICHARD L. ETTER, REED SMITH LLP, PHILA, PA.
Stewart Dalzell, J.
Zindora Crawford, an African-American woman, filed suit over the circumstances of her 2012 suspension from Verizon Pennsylvania, Inc. (" Verizon" ) and her ultimate resignation in 2014. She claimed disparate treatment, disparate impact, constructive discharge and retaliation, as well as violations of the Pennsylvania Human Relations Act and the Philadelphia Fair Practices Ordinance. She brings her case pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981. We have federal question jurisdiction over Crawford's discrimination claims under 28 U.S.C. § 1331 and supplemental jurisdiction over her state law claims pursuant to 28 U.S.C. § 1367.
Verizon moved for summary judgment. For the reasons set forth below, we will deny Verizon's motion in part and grant it in part.
I. Legal Standard
Summary judgment is warranted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A party moving for summary judgment bears the burden of proving no genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To that end, the movant must inform the district court of the basis for its argument by " identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact," Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). Where the movant is the defendant or the party that does not have the burden of proof on the underlying claim, it " has no obligation to produce evidence negating its opponent's case," National State Bank v. Federal Reserve Bank of New York, 979 F.2d 1579, 1582 (3d Cir. 1992). The movant need only point to the lack of evidence supporting the non-movant's claim. Id.
The reviewing court should view the facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Scheidemantle v. Slippery Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006). A factual dispute is " genuine" if it turns on " evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is " material" if it " might affect the outcome of the suit under the governing law." Id. at 248. That is, " only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude" summary judgment. Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (quoting
Anderson, 477 U.S. at 248). The court's function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249.
[T]he plain language of Rule 56 mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.
Celotex, 477 U.S. at 322.
If the nonmoving party fails to make a sufficient showing on an essential element of its case on which it has the burden of proof, the moving party is entitled to judgment as a matter of law. Id. The nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party.
Anderson, 477 U.S. at 256-57. It is well-established that Rule 56 obliges the nonmoving party " to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial."
Celotex, 477 U.S. at 324 (internal quotation marks omitted); see also Fed.R.Civ.P. 56(c).
Specifically, Rule 56(e) provides in relevant part that " [i]f a party fails to properly . . . address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting materials -- including the facts considered undisputed -- show that the movant is entitled to it." Fed.R.Civ.P. 56(e).
II. Factual and Procedural Background
Verizon hired Crawford on January 26, 2004 and she worked as a Consultant until August 8, 2012. Def. Statement of Undisputed Facts (" SUF" ) at ¶ 1. Her second-level supervisor was Office Manager John Nicholson, who oversaw the Team Leaders who supervised Consultants. Id. at ¶ 3. On August 7, 2012, Crawford was arrested on 112 counts of Pennsylvania statutory violations including twelve counts of intentional theft of services, twelve counts of unauthorized use of a password, identifying code or personal identification number, and twelve counts of unlawfully using a computer to alter or erase data. SUF at ¶ 5; see also MSJ, Ex. A (Crawford Dep.) at 54:20-51:25. The same day, the Montgomery County District Attorney issued a press release naming Crawford and three other Verizon employees (Technicians Richard Spraggins, Frank Provenzano and Joseph Dolan) in connection with a scheme to defraud Comcast Cable Corporation through the application of issuing unauthorized discounts to customers' bills and he issued an affidavit of probable cause on April 12, 2012. SUF at ¶ ¶ 4, 6; see also MSJ, Ex. A, pt. 5 at 1, 2. The three other Verizon employees were arrested and charged with criminal counts similar to those filed against Crawford. SUF at ¶ 7.
The day Crawford was arrested her Team Leader, Drena Black, spoke with Nicholson about Crawford's arrest in connection with her alleged involvement in the Comcast scheme. Id. at ¶ 8. The next morning Nicholson alerted his supervisor, Michael Billups, and called Bill McCloskey, a security officer. Id. McCloskey and a local manager telephoned Cynthia Marinari, Senior Consultant-Labor Relations, to inform her of the details of the scheme and that it involved four Verizon employees. Id. at ¶ 9.
The four Verizon employees were suspended. Id. at ¶ 10. Neither party disputes that at the time of Crawford's arrest Marinari was unaware of Crawford's race. SUF at ¶ 11. On August 8, 2012, Nicholson suspended Crawford (and supervisors for the other three employees did the same). Id. at ¶ 13.
However, the parties dispute who at Verizon made the suspension decision and what its intended duration was. Verizon contends Marinari decided (based on the severity of the alleged criminal conduct, the employees' arrests, and the fact that their positions at Verizon gave them access to customer databases and the Verizon facility) to suspend all four employees indefinitely pending the outcome of the criminal investigation. Id. at ¶ ¶ 10, 11. Crawford maintains that Marinari recommended to Nicholson that he indefinitely suspend Crawford, but left the ultimate decision as to each employee to their local management of each employee. Pl. Resp. to SUF at ¶ ¶ 10, 11. She also contends that Verizon originally suspended her pending its own investigation, which determined within a short period that no Verizon services had been compromised, Pl. SUF at ¶ ¶ 68-70, but Verizon now takes the position it was awaiting the outcome of the police investigation into the allegations against her. Mem. in Opp. at Ex. C (Marinari Dep.) at 29:9-16; 44:14-15; 45:16-23.
On September 20, 2012, the Communication Workers of America, Local 13500, the union representing Crawford, filed a grievance over her indefinite suspension but was not able to pursue the grievance past level three because Verizon representatives maintained that the matter was under investigation. SUF at ¶ 18; see also Pl. Resp. to SUF at ¶ 18 and Ex. E (Christmas Decl.) at ¶ 15.
On October 25, 2012, Crawford filed a charge of discrimination with the Philadelphia Commission on Human Relations (" PCHR" ) and the Equal Employment Opportunity Commission (" EEOC" ) stating that she had been suspended because of her race. SUF at ¶ ¶ 29, 30. In her complaint, Crawford stated that Nicholson suspended her indefinitely and said he " had to do it" because of allegations of criminal fraud that Crawford disputes. Id. at ¶ 30. She contends that Nicholson's explanation is untrue because in February of 2012 Verizon had monitored a white employee, Amy Toth, for applying illegal discounts and adding unauthorized products to Verizon customers' accounts in order to get a higher monthly bonus, but that Nicholson failed to suspend her. Id. (On November 15, 2013, the PCHR sent Crawford a Dismissal and Notice of Rights, as did the EEOC on March 3, 2014. Id. at ¶ 31.)
On November 20, 2012, Crawford filed an internal complaint against Verizon of race discrimination arising from the Comcast allegations. Id. at ¶ 19. In her complaint, she stated:
I was suspended indefinitely on Aug 8, 2012 by John Nicholson which he stated was due to allegation of criminal fraud. I am still not back at work and the reason . . . is because of Cindy Maranari [sic] who is the labor relation manager who John has advised is the reason. John and Cindy are good friends and she supports his unfair discipline of black employee[s] in our office.
MSJ, Ex. A, pt. 12. Crawford also alleged her co-worker Toth was " defrauding Verizon on a monthly basis by collecting a month[l]y bonus by adding illegal discounts to customers['] account[s] that do not qualify for them," id., and she maintained Nicholson turned a blind eye to these actions. Id.
Verizon contends that when she made the complaint Crawford was aware that two of the other employees suspended in the Comcast matter were Caucasian and one was African-American. SUF at ¶ 20. However, Crawford disputes this as well as the relevance of the other employees' racial composition as she contends that three other supervisors decided to suspend those three employees -- who are employed as Technicians (not Consultants) and are members of a different union. Pl. Resp. to SUF at ¶ 20.
The parties do not dispute that the other three employees were offered and took voluntary buyouts, which were not offered to any Consultants (such as Crawford) or to any employees in her group. SUF at ¶ 36.
On May 9, 2014, prior to trial and after her initial request for the Accelerated Rehabilitative Disposition (" ARD" ) program was denied, Crawford was accepted into that program. SUF at ¶ 26. The Montgomery County District Attorney approved her for the program in exchange for Crawford's agreement to (1) serve four years' probation; (2) pay restitution of $1,000 to Comcast; (3) perform 100 hours of community service; (4) co-operate with the District Attorney's Office and testify truthfully against her co-defendants; and (5) pay costs and fees for the ARD program. Id.
The parties dispute the circumstances under which Verizon would have rehired Crawford. Verizon offers as undisputed its contention that " [i]f the charges against [Crawford] had been dismissed or she was found not guilty, Verizon would have returned her to work with full back pay and benefits." SUF at ¶ 28 (citing to Marinari's deposition). However, Crawford points elsewhere in Marinari's testimony where the Verizon manager stated that " [i]f all charges were dropped, we would have returned her and made her whole." Mem. in Opp., Ex. C at 117:25-118:1.
On June 4, 2014, after nearly two years of unpaid suspension, Crawford left Verizon under circumstances that the parties also dispute -- that is to say, the defendant characterizes Crawford's departure as a resignation, SUF at ¶ 27, but she calls it a constructive discharge. See Pl. Resp. to SUF at ¶ 27.
On June 2, 2014, Crawford filed the present suit against Verizon.
On August 28, 2014 she filed an amended charge of discrimination with the EEOC and PHRC alleging retaliation and ...