United States District Court, W.D. Pennsylvania
Barry Fischer United States District Judge
Lonnell Hughes (“Plaintiff”) initiated this civil
action on February 17, 2015 against his employer, the
Allegheny County Airport Authority a/k/a Pittsburgh
International Airport (“ACAA” or
“Defendant”). Plaintiff's Amended Complaint
sets forth claims of racial discrimination and retaliation
pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and 42 U.S.C. §
pending before the Court are Cross-Motions for Summary
Judgment filed by Plaintiff (Docket Nos. 113 and 114) and
Defendant (Docket No. 116). For the reasons set forth below,
Defendant's Motion for Summary Judgment will be GRANTED
and Plaintiff's Cross-Motion for Summary Judgment will be
Local Rule 56.1 Violation
initial matter, the Court notes that Plaintiff has failed to
properly respond to Defendant's Concise Statement of
Material Facts, (Docket No. 117), as required by Local Rule
56.C.1. This rule requires non-moving parties to a motion for
summary judgment to file their own concise statement
responding to each numbered paragraph in the movant's
concise statement. See LCvR 56.C.1. The non-moving
party's concise statement must admit or deny the facts
contained in the movant's concise statement; set forth
the basis for denial if any fact within the movant's
concise statement is not entirely admitted by the non-moving
party, with appropriate citation to the record; and set
forth, in separately numbered paragraphs, any other material
facts at issue. See id.
non-moving party faces severe consequences for not properly
responding to a moving party's concise statement. Any
alleged material facts “set forth in the moving
party's Concise Statement of Material Facts ... which are
claimed to be undisputed, will for the purpose of deciding
the motion for summary judgment be deemed admitted unless
specifically denied or otherwise controverted by a separate
concise statement of the opposing party.” LCvR 56.E.
responding to Defendant's summary judgment motion,
Plaintiff failed to specifically reply to each paragraph in
Defendant's concise statement. Instead, Plaintiff
included a narrative in his Memorandum in Opposition to
Defendant's Motion for Summary Judgment, (Docket No.
125), that purports to state his own version of the operative
facts, albeit without any citations to the factual record.
Plaintiff later clarified, by way of an email to the Court,
that this memorandum was intended to serve as his response to
Defendant's concise statement. (Text Entry, 5/22/17).
provide some leniency to pro se litigants when
applying procedural rules. Mala v. Crown Bay Marina,
Inc., 704 F.3d 239, 244 (3d Cir. 2013) (“[W]e tend
to be flexible when applying procedural rules to pro
se litigants, especially when interpreting their
pleadings.”). However, the Court “‘is under
no duty to provide personal instruction on courtroom
procedure or to perform any legal chores for the [pro
se litigant] that counsel would normally carry
out.'” Id. (quoting Pliler v.
Ford, 542 U.S. 225, 231 (2004)). Pro se
litigants must adhere to procedural rules as would parties
assisted by counsel. McNeil v. United States, 508
U.S. 106, 113 (1993) (explaining that “we have never
suggested that procedural rules in ordinary civil litigation
should be interpreted so as to excuse mistakes by those who
proceed without counsel”).
Court “requires strict compliance with the provisions
of [Local Rule 56].” E.E.O.C. v. U.S. Steel
Corp., No. 2:10-CV-1284, 2013 WL 625315, at *1 n.1 (W.D.
Pa. Feb. 20, 2013) (internal quotations omitted); see
also Practices and Procedures of Judge Nora Barry
Fischer § II.E. (i), Effective Mar. 23, 2010, available
Documents/Judge/fischerpp.pdf. Accordingly, to the extent
Plaintiff's allegations of facts fail to address a
particular concise statement of material fact, that concise
statement of material fact will be deemed admitted. LCvR
56.E; see also Boyd v. Citizens Bank of Pa., Inc.,
No. 12-CV-332, 2014 WL 2154902, at *3 (W.D. Pa. May 22, 2014)
(applying Local Rule 56.E and explaining that “to the
extent [the pro se] Plaintiff's recitation of
the facts do not specifically address Defendant's
statement of facts, Defendant's statement will be deemed
admitted”). The Court will consider any facts properly
alleged in Plaintiff's pro se responses that
specifically contradict Defendant's statement of facts,
to the extent that they are supported by the record. See
Boyd, 2014 WL 2154902, at *3 (stating that “[t]o
the extent Plaintiff's statement of ‘fact'
specifically controverts Defendant's, the Court will
consider these facts in determining whether summary judgment
should be granted”).
an African-American male, commenced employment with the ACAA
as a Laborer on February 12, 2001. (Docket No. 117 at ¶
1). In 2004, Plaintiff filed two charges of discrimination
against the ACAA with the Equal Employment Opportunity
Commission (“EEOC”) and the Pennsylvania Human
Relations Commission (“PHRC”) alleging that he
was being subjected to a hostile working environment because
of his race. (Id. at ¶ 3; Hughes Depo. (Docket
No. 119-2) at 213-15). Each of these complaints was dismissed
by the EEOC and/or PHRC without a finding of cause. (Docket
No. 117 at ¶ 4).
2008, Plaintiff initiated an action against the ACAA in the
Allegheny County Court of Common Pleas based on a
disagreement concerning health coverage. (Hughes Depo.
(Docket No. 119-2) at 217-18). Plaintiff's attorney
voluntarily dismissed that lawsuit in 2008. (Id. at
217; Praecipe to Discontinue (Docket No. 119-4) at 8-9).
2013, Plaintiff applied for two Driver positions posted by
the ACAA. (Docket No. 117 at ¶ 5). Pursuant to the
Collective Bargaining Agreement (“CBA”) between
the Teamsters and the ACAA, employees seeking a position as a
Driver are required to obtain and maintain a Pennsylvania
Class “A” Commercial Drivers License
(“CDL”) with Tank/Hazmat and Passenger commercial
endorsements. (Id. ¶ 6). Plaintiff possessed
the requisite CDL and Hazmat and Tanker commercial
endorsements, but has never obtained a Passenger endorsement.
(Id. at ¶¶ 14-15, 20-21). The two Driver
positions were ultimately awarded to candidates who possessed
all of the endorsements required by the CBA. (Id. at
and commercial endorsements are issued by the Pennsylvania
Department of Transportation (“PennDOT”), rather
than the ACAA. (Id. at ¶¶ 10-11). An
employee seeking a position as a Driver with the ACAA must
obtain the requisite endorsements on his own behalf.
(Id. at ¶¶ 11). Although the ACAA
routinely refers employees to a PennDOT-certified test
administrator named Ron Burkhart, Burkhart is not an ACAA
employee and is not subject to the ACAA's control.
(Id. at ¶ 12). ACAA employees are not required
to take the endorsement skills tests with Burkhart.
(Id. at ¶¶ 13, 19).
fall of 2013, Plaintiff bid for two additional positions: (1)
a position on the 3:00 p.m. to 11:00 p.m. shift, and (2) a
temporary position on the 6:00 a.m. to 2:20 p.m. shift.
(Id. at ¶ 25). Plaintiff was selected for the
position on the 3:00 p.m. to 11:00 p.m. shift based on
seniority, but was denied the second position because he was
not the most senior person who bid for that position.
(Id. at ¶ 26).
in 2013, Plaintiff received several “Failure to
Punch” notifications from the ACAA because of his
failure to comply with the ACAA's time card policy.
(Id. at ¶¶ 27-29). Failure to Punch
violations are minor infractions that do not typically result
in disciplinary action. (Id. at ¶ 30).
Plaintiff did not receive any discipline based on the Failure
to Punch notifications that he received. (Id. at
January 6, 2014, Plaintiff was randomly selected for a drug
test. (Id. at ¶ 33). Pursuant to the ACAA's
Substance Abuse Policy, a minimum of 50% of the employees
covered by the policy must be randomly drug tested each year.
(Id. at ¶ 32). The ACAA utilizes an
unaffiliated third-party administrator, Heritage Valley
Health System (“Heritage Valley”), to administer
its random drug testing program. (Id. at ¶ 34).
Although Plaintiff complained that his drug test had been
intentionally scheduled during a period of time in which he
was taking prescription pain medication, Plaintiff passed his
drug test. (Id. at ¶¶ 36-37).
being notified of his selection for random drug testing,
Plaintiff became angry and irate. (Id. at ¶
38). Plaintiff approached his supervisor, Mark Pobicki, and
an Administrative Assistant, Terry Mitchell, and displayed
behavior that Pobicki and Mitchell described as “loud
and angry” and “aggressive.” (Id.
at ¶ 40; Pobicki Statement (Docket No. 119-14) at 1;
Mitchell Statement (Docket No. 119-15) at 1-2). As a result,
the ACAA contacted the Allegheny County Police Department to
report Plaintiff's behavior. (Docket No. 117 at ¶
41). The ACAA also placed Plaintiff on paid administrative
leave and referred him to a physician for a “fit for
duty evaluation” to determine whether he was medically
fit to return to work. (Id. at ¶ 44).
Plaintiff's evaluation, the ACAA received a letter from
the referred physician stating that Plaintiff was unfit for
duty. (Docket No. 119-18). Based on this determination,
Plaintiff was placed on unpaid leave. (Id. at ¶
45-46). Plaintiff remained on unpaid leave from February 9,
2014, through May of 2014, at which time he returned to work
as a Laborer. (Id. at ¶¶ 46-49).
initiated the instant action on February 17, 2015, asserting
claims against both the ACAA and Laborers Local Union No.
1058. (Docket No. 1). Plaintiff filed an Amended Complaint on
August 19, 2015. (Docket No. 18). On July 7, 2016, the
parties stipulated to the dismissal of Laborers Local Union
No. 1058 with prejudice. (Docket No. 63).
October 31, 2016, Plaintiff filed a second motion to amend
his complaint, seeking to add an allegation of disparate
treatment based on the same conduct underlying his Amended
Complaint. (Docket No. 96). The Court granted the motion on