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Fred v. Commonwealth

United States District Court, M.D. Pennsylvania

June 23, 2015

PETER FRED, Plaintiff



I. Introduction and Procedural History

In this action, Plaintiff, Peter Fred, brings a claim for retaliation under Title VII of the j 1964 Civil Rights Act, 42 U.S.C. § 2000e, ef seq. (Count I), as well as a claim for race discrimination under Title VII (Count II), national origin discrimination under Title VII (Count III), and a claim for violation of the Pennsylvania Human Relations Act (Count IV), The Plaintiff, in his prayer for relief, seeks a permanent injunction barring the Defendant Commonwealth "from discriminating or retaliating against Plaintiff on the basis of his race, national origin and/or any basis prohibited under federal and state law, " (Compl., Doc. 1, at 10), and further seeks an order prohibiting Defendant from "continuing to maintain its illegal policy, practice or custom of discriminating or retaliating against employees based on their race and national origin." (Id.) Plaintiff also seeks an award of "actual damages, " costs and expenses of this action and "reasonable legal fees as provided by applicable federal and \ state law." (Id.)

The Defendant, Commonwealth of Pennsylvania, Department of Transportation, has moved for summary judgment (Doc. 22), and has filed a Statement of Material Facts (SOMF) (Doc. 23) pursuant to Local Rule 56.1, as to which the Defendant submits there is no genuine issue for trial and on the basis of which it asserts it is entitled to summary judgment.

The matter has been fully briefed and is ripe for disposition. Accordingly, for the reasons stated herein, Defendant's Motion for Summary Judgment will be granted.

II. Statement of Undisputed Facts

The Plaintiff, Peter Fred, is an employee of the Pennsylvania Department of Transportation (DOT) in the job title of Equipment Operator II. (Defs Statement of Material Facts, Doc. 23, at ¶ 1). The Plaintiff began his employment with the Department of Transportation as a seasonal employee in 2004. Thereafter, he was hired as a full-time employee in June of 2006 as an Equipment Operator I for Pike County in Milford, PA. (Id. at f 3). The Plaintiffs work schedules are divided in a winter and summer season and, from the summer of 2008 through 2010, he worked out of the DOT Dome stockpile. (Id. at 7). Plaintiffs hours would vary, depending on the season, as to the day or evening shift. (Id. at 8). Specifically, in the summer season, the Plaintiff worked from 7 a.m. to 3:00 p.m., and during the winter season, he worked noon to 8 p.m. When a winter storm occurred, Plaintiff worked from noon until midnight. (Id. ¶ 9). While Plaintiff did not work at the DOT's Milford garage, he would have to go to the garage on occasion as part of his job where he interacted with the Milford Garage Equipment Manager, Joseph Hogan. (See Id. ¶¶12, 14, 26). The Plaintiff worked at the DOT Dome stockpile, which is located approximately two to three miles from the Milford garage. (Id. at 13). As noted, the Milford Garage Equipment Manager or foreman was Joseph Hogan from 2008 until his retirement in October, 2010. (Id. at 14). Hogan's immediate supervisor in 2008 to 2010 was Robert Collins, the DOT Pike County Manager. (Id. at 15). Joseph Hogan did not supervise the Plaintiff, as Plaintiff himself testified. (Id. at 17). While the parties disagree as to the duties and responsibilities of Mr. Hogan within the operation of the Department of Transportation garage, the parties agree that Hogan instituted a rule within the garage pursuant to which only one bag of chains were to be distributed to a single operator. (Id. at 22).[1]

The Plaintiffs foreman, during the December, 2008 winter season, was Keith Wood. (Id. at 25). Paragraph 26 of the Defendant's Statement of Material Facts states that "[i]n December, 2008, plaintiff and Steve Hughson were sent to the garage to get 6 bags of chains, one for each truck." The Plaintiffs response to this statement is "[d]enied as stated. Plaintiff went to get the chains at the direction of Keith Woods." (Pl's Answ. to Def.'s Statement of Mat. Facts (ATSOMF), Doc. 31-1, at 26). While Plaintiff thus denies Paragraph 26 of Defendant's Statement of Material Facts, the substance of the Defendant's statement that the Plaintiff was sent to the garage to get six bags of chains is admitted.

Similarly, Paragraph 27 of Defendant's Statement of Material Facts states that "Plaintiff grabbed six bags of chains from the garage and put them in his truck." Plaintiffs response to this Statement of Material Fact is "[d]enied as stated. Plaintiff went to get the chains at the direction of Keith Woods." (ATSOMF at 27). Thus, here again. Plaintiff admits the substance of Defendant's Statement.

The Defendant asserts that Hogan stopped the Plaintiff and his co-worker and questioned where he was going with the chains. Defendant further asserts that Hogan told the Plaintiff that he was not allowed to take the chains as only one bag of chains were to be signed out per employee. (SOMF at ¶¶ 28-29). The Plaintiffs response, in part, is: "Denied. Plaintiffs testimony speaks for itself." (ATSOMF at ¶ 28). Plaintiffs deposition testimony is as follows;

Q. When you went to the shed or the garage, what happened?
A. I grabbed six bags of chains and put them in the truck, in the crew cab.
Q. Uh-huh (yes).
A. And Mr. Hogan asked where I was going with the chains. I told him I was taking them up to the dome to get prepared for the storm. And he said, I wasn't allowed to take six bags of chains, that he would have me for theft of state property. I told him the chains were needed for the trucks due to the storm coming in.

(Peter Fred Dep., Nov. 21, 2013, Doc. 24-1, at 26:15-25). Thus, Plaintiffs denial of Paragraph 28 of Defendant's Statement of Material Facts on the basis that the Plaintiffs testimony "speaks for itself is not a proper denial. The Plaintiffs deposition testimony is in accordance with Defendant's Statement at Paragraph 28 and the same is therefore admitted.

The Defendant asserts and the Plaintiff admits that with respect to the chain incident, upon return to the Dome stockpile, Plaintiff Fred reported to his supervisor, Keith Wood, that Hogan called him a "fucking spic" and told him to "go back where he came from" and accused of him stealing the chains. (SOMF at ¶31). The Plaintiffs supervisor, Keith Wood, told the Plaintiff he would talk to County Manager Robert Collins about the Hogan incident and the chains, (Id. at ¶ 32).

As a result of the Plaintiffs allegations described above, a meeting was held approximately one month later regarding the chain incident and Hogan. Present at the meeting were County Manager Collins, Mr. Hogan, Plaintiffs Union Representative, Lee Brown, Steve Hutchinson and the Plaintiff. (Id. at ¶ 33). At this meeting, the Plaintiff complained that Hogan harassed him and accused him of stealing chains. (Id. at ¶ 34). The parties dispute the substance of the discussion at the meeting held on Plaintiffs complaint against Hogan, but they agree County Manager Collins asked the Plaintiff and Hogan to set aside their differences and try to get along. (Id. at ¶ 38).

The parties dispute whether the Plaintiff filed a formal Complaint with the DOT or a Union Grievance after the meeting but they agree that the Plaintiff filed a Complaint with the EEOC on or about February 8, 2010. (Id. at ¶ 39). The Plaintiff admits that County Manager Collins testified that a promotion from an Operator A to an Operator B position is governed by the collective bargaining agreement and is subject to position vacancy, seniority and a bidding process. (ATSOMF at ¶ 40). The Defendant asserts, in Paragraph 41 of its Statement, that in October of 2009, pursuant to the collective bargaining agreement, County Manager Collins promoted the Plaintiff to an Equipment Operator B. Plaintiff admits only that he went from a temporary to a full-time position. (Id. at 41).

Plaintiff further admits that he made a complaint in December of 2009 that Hogan had referred to him as a "fucking asshole." (Id. at ¶ 42). Specifically, it is undisputed that the Plaintiff and co-worker, Bob Beltramine, were sent to the garage by their foreman, Scott Gillette, because the lights on the Plaintiffs truck were not working. (SOMF at ¶ 43). As the Plaintiff and Beltramine were exiting the garage, Hogan called both of them "fucking assholes". [Id. at ¶ 44).

On December 8, 2009, the Plaintiff filed a Union Grievance alleging that he was "verbally accosted and demeaned by Joe Hogan every time they have to deal with [each] other." (Id. at ¶ 45).

The Plaintiff contacted the Department of Transportation Equal Opportunity section and told them he was being harassed and working in a hostile work environment because of Joe Hogan. (Id. at ¶ 46). The Defendant asserts that County Manager Collins conducted an investigation into Plaintiffs allegations and a pre-disciplinary conference (PDC) was conducted regarding Hogan's work performance, including the December 6, 2009 incident with the Plaintiff. (Id. at 47). The Plaintiff admits that a pre-disciplinary conference was conducted with respect to Hogan but asserts that whether the PDC was conducted because of Hogan's work performance or because of his hostile and racist behavior is a disputed issue of material fact for trial. (ATSOMF at 47).

Plaintiff admits that County Manager Collins testified that Hogan received a 5-day suspension for calling Plaintiff a "fucking spic". (Id. at ¶ 49).

On January 11, 2010, the Plaintiff complained that Hogan took a picture of Plaintiff and two other employees while they were getting into a DOT truck and that he then followed them. (SOMF at ¶ 50). Hogan had been issued a camera and, as a result of the complaint by the Plaintiff, County Manager Collins went to the garage and took the camera from Hogan. (Id. at ¶¶ 51-52). The Defendant conducted another pre-disciplinary conference with respect to Hogan regarding the allegation that he had told Union Representative Lee Brown that Plaintiff was playing the race card and that he would "take care" of him. (Id. at 55). At the PDC, Hogan denied making this statement to Brown. (Id. at 56). On January 26, 2010, the Union withdrew Plaintiffs Grievance filed on January 8, 2010. (Id. at 57). As a result of the PDC, Hogan was suspended without pay for five days with a final termination warning. (Id. at 58). Plaintiffs response to this statement is "[d]enied as stated, " with a reference to Paragraph 49 of the Plaintiffs Response, wherein the Plaintiff acknowledges that Collins testified that Hogan received a 5-day suspension for calling Plaintiff a "fucking spic" and that Hogan later received "yet another suspension." (ATSOMF at U 58). Therefore, this is not a proper denial.

Hogan retired from the Department of Transportation in October of 2010. (SOMF at ¶ 59). The Plaintiff continues to be employed by DOT as an Equipment Operator B, (Id. ¶ 60).

The Plaintiff states that Mr. Hogan called him a fucking spic on two occasions, the first taking place with respect to the chain incident in 2008 and the second, at another unidentified time in the garage. (Id. at 62).

III. Standard of Review

Through summary adjudication, the court may dispose of those claims that do not present a "genuine issue as to any material fact." Fed.R.Civ.P. 56(a). Summary judgment "should be rendered 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); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). "As to materiality, ... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Natl Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. Rather, the opposing party must point to a factual dispute requiring trial and the district court "may limit its review to the documents submitted for the purposes of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified Sch. Dist, 237 F.3d 1026, 1030-1031 (9th Cir. 2001); see also Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). "Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW' of N. Am., Inc., 974 F, 2d 1358, 1363 (3d Cir.1992), cert, denied 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993).

IV. Analysis

The Defendant, Department of Transportation, moves for summary judgment on several grounds. First, the DOT asserts that Plaintiffs claim that in December of 2008, Garage Maintenance Foreman Hogan called him a "fucking spic" is barred by Plaintiffs failure to timely file a Charge of Discrimination with the EEOC or the Pennsylvania Human Relations Commission (PHRC). [See Def.'s Br. in Supp. of Mot. for Summ. J., Doc. 25, at 6.) In a deferral state, such as Pennsylvania, a claim with the Pennsylvania Human Relations Commission is duly filed with the U.S. Equal Employment Opportunity Commission, which allows a claimant to file his complaint within 300 days of the alleged unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(1). However, the 300-day statute of limitations only applies to allegations in support of a plaintiffs Title VII claim, not claims brought pursuant to the PHRA. See Mandel v.M&Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013) (concluding that plaintiffs PHRA claims were time-barred because "[t]he 300-day extended statute of limitations applies only to the Charge, not to the PHRA filing").

Defendant correctly asserts that the Plaintiff filed an Administrative Charge with the EEOC on January 14, 2010 and cross-filed with the PHRC. (Cf. Doc. 25 at 6; Compl. at ¶ 12). Thus, Defendant argues that Plaintiffs Title VII claims "are timely only as to those discrete actions that occurred on or after March 23, 2009. (300 days prior to the January 14, 2010 filing)." (Doc. 25 at 6).

Plaintiff does not challenge the untimeliness of his Charge of Discrimination to the EEOC as it relates to the December, 2008 claim that Garage Manager Hogan directed a profane, racial and ethnic slur against him. Instead, Plaintiff, citing Hammer v. Cardio Medical Products, Incorporated, 131 Fed.App'x 829 (3d Cir. 2005), argues that after the December, 2008 utterance of the "fucking spic" epithet, "Plaintiff was lulled' into foregoing prompt attempts to vindicate his rights." (Pl's Br. in Opp. to Def.'s Mot. for Sum. J., Doc. 31, at 4). In Hammer, the Plaintiff failed to file her Title VII Charge of Discrimination with the EEOC within 300 days of the alleged unlawful practice as she was required to do. Hammer, 131 Fed.App'x at 831. Plaintiff filed her Charge with the EEOC 581 days after the limitations period had started, thus making her Charge untimely. Id. The Court, in vacating the District Court's Order granting the employer's motion to dismiss and remanding the case for further proceedings, stated:

It is well established, however, that a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to filing suit under Title VII or the ADEA. Rather, it is a requirement more in the nature of a statute of limitations which is subject to equitable tolling. See Courtney v. LaSalle Univ., 124 F.3d 499, 505 (3d Cir. 1997); see also Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1392 (3d Cir. 1994). Equitable tolling may be appropriate where a plaintiff has "been prevented from filing in a timely manner due to sufficiently inequitable circumstances." Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999). Likewise, equitable tolling may apply "where the employer's own acts or omissions have lulled the plaintiff into foregoing prompt attempts to vindicate [her] rights." Bonham v. Dresser Indus., Inc., 569 F.2d 187, 193 (3d Cir. 1977); see also, Oshiver, 38 F.3d at 1388 (noting that "the fundamental rule of equity that a party should not be permitted to profit from its own wrongdoing" is the "basic principle" underlying the equitable tolling doctrine). Hammer bears the burden of proving that the equitable tolling doctrine applies.


The plaintiff in Hammer alleged that equitable tolling was appropriate because, inter alia, Cardio Medical had failed to post any information concerning her ...

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