United States District Court, W.D. Pennsylvania
DONALD C. HENNESSEY, JR., Plaintiff,
DOLLAR BANK, FSB, Defendant.
MEMORANDUM OPINION AND ORDER
PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE.
pending before the Court is Defendant's motion for
summary judgment. For the reasons that follow, its motion for
summary judgment will be granted.
Relevant Procedural History
about April 11, 2017, Plaintiff Donald C. Hennessey, Jr.
("Plaintiff) filed a charge of racial and age
discrimination with the Equal Employment Opportunity
Commission ("EEOC"). (Compl. ¶ 2(a).) The EEOC
issued a Notice of Right to Sue on April 25, 2018. (Compl.
commenced this action against Defendant Dollar Bank, FSB
("Dollar") on July 24, 2018. In his Complaint, he
alleges claims of racial discrimination under 42 U.S.C.
§ 1981 (Count I) and Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII)
(Count III), as well as a claim of age discrimination under
the Age Discrimination in Employment Act, 29 U.S.C.
§§ 621-34 (ADEA) (Count II).
closed on February 19, 2019. Thereafter, on March 19, 2019,
Dollar moved for summary judgment (ECF No. 19). This motion
has been fully briefed and is ripe for resolution.
Plaintiffs Employment with Dollar
a Caucasian male, was employed by Dollar from June 2000 until
he was terminated in January 2018. (Compl. ¶ 3;
Plaintiff Dep. 21:3-9.) After working as a Senior Teleprocessing
Technician from June 2000 until June 2005, he became a Senior
Computer Operator in June 2005 and worked in that position
until his termination in January 2018. (Id. at
10:6-11:17; Pl.'s App Ex. 2.)
of his employment with Dollar, Plaintiff received a copy of
Dollar's Employee Guide in 2008 and 2017. (Plaintiff Dep.
21:15-22:16, 24:12-25:4.) Both versions included a Harassment
Policy and a Code of Ethics. (Plaintiff Dep. Exs. 3,
2017 Harassment Policy states in part that Dollar is
"committed to providing a work environment free of
discrimination and unlawful harassment" and that all
employees "should be free from all forms of illegal
harassment, including offensive language and behavior
regarding an individual's race, religion, color, age,
sex, sexual orientation, gender identity, national origin,
ancestry, physical or mental disability, medical condition,
marital status or any other legally protective [sic]
status." (Plaintiff Dep. Ex. 5 at 9.) The Policy further
provides that: "Employees should consider their behavior
and comments from the perspective of anyone who might be
offended by them." (Id.) Plaintiff understood
that he was required to consider his behavior and comments
from the perspective of anyone who might be offended by them.
(Plaintiff Dep. 23:23-24:8.)
Harassment Policy prohibits "visual forms of
harassment" and advises employees that disciplinary
action, up to and including termination, can result from a
violation of this Policy. (Plaintiff Dep. Ex. 5 at 9.)
Code of Ethics provides that employees must be courteous to
each other and that employees are required to conduct their
duties in a professional manner. (Id. at iii-iv.)
See also Id. at ii (notifying employees that
"violation of any Dollar Bank policy will subject you to
disciplinary action, up to and including termination.")
Plaintiff understood these requirements. (Plaintiff Dep.
Senior Computer Operator, Plaintiff worked in the computer
room at Dollar's Liberty Commons location (Plaintiff Dep.
12:12-17, 16:15-21), which houses its call center and
operations. (Id. at 12:23-13:4.) The computer room
is an open-air room that is partitioned for computer
operations, the help desk, the tape library, the LAN room and
the print room and requires a badge to access. (Id.
at 16:18-25, 17:19-25.) The computer room has a wire rack
with bars across it hanging from the ceiling. (Mangis Dep.
14:16-19; Romano Dep. 24:11-18.)
classifications of employees worked in the computer room,
including computer operators, help desk employees, tech
support, mailroom employees and programmers. (Plaintiff Dep.
17:16-19:5.) Several of these employees were African
American, including Ronda Johnson, a computer operator, Gary
Brown, head of the mailroom, and Doug Jackson, a Senior
Computer Operator, as well as two or three programmers and
one tech support person. (Id. at 15:5-6, 16:13,
20:16-25; Mangis Dep. 28:19-21; Herring-Myers Dep.
17:2-6; Wolfe Dep. 15:13-19; Jackson Dep.
Events Leading to the Incident at Issue
January 9, 2018, his day off, Plaintiff purchased a stuffed
monkey from Walmart while shopping with his wife. Plaintiff
stated that he found this stuffed animal in a Valentine's
Day display even though the monkey was brown and did not
include any Valentine's Day decorations. (Plaintiff Dep.
37:10-41:25;Pl.'s App. Ex. 3; Plaintiff Dep. Ex.
Plaintiff selected it over the other items in the
Valentine's Day display because it was the only one that
had Velcro on its paws so that it could be hung from the wire
rack in the computer room. (Plaintiff Dep.
39:6-22.) At the time he purchased it, Plaintiff
told his wife he thought the monkey would look cute hanging
from the rack. (Id. at 40:22-25, 41:11-19.)
he had taken decorations into work before, neither Plaintiff
nor anyone else had ever hung any decorations from the wire
rack. (Id. at 40:1-12, 41:3-6; Wolfe Dep. 16:16-18.)
Plaintiffs next day of work after his purchase was Friday,
January 12th, he did not bring the monkey to work
until Saturday, January 13. (Id. at 41:23-42:7.)
Unlike January 12, when four other employees were working,
the only other person working that day was Shawn Wolfe, also
Caucasian, a Service Desk Analyst who shared a cubicle with
him. (Id. at 42:8-21, 43:2-6; Wolfe Dep. 6:8-12,
8:2-3.) Plaintiff hung the monkey on the wire rack by
attaching the Velcro on its hands around the wire.
(Id. at 44:15-18, 45:1-11.) Plaintiff had no
discussions with Wolfe while he was doing so. (Id.
was the only person working in that area on Sunday as well as
on Monday, which was Martin Luther King, Jr. Day.
(Id. at 42:23-44:11; 47:16-19.) He was then off for
the next three days as part of his regular work rotation.
(Id. at 47:25-48:14.)
stated that he was unaware that monkeys can be a derogatory
image for African Americans. (Id. at 49:13-21.) He
acknowledged, however, that it would have been inappropriate
if he had hung the monkey by a rope around its neck.
(Id. at 65:3-13.)
Tuesday, January 16, 2018, Ms. Johnson discovered the monkey
hanging from the rack. (Herring-Myers Dep. Ex. 4.) She tried
to remove it, but could not reach it, so she asked Mr. Brown
to remove it. (Id.) Mr. Brown "yanked" the
monkey down and "threw" it on the file cabinets,
demanded to know who had hung it, and then took the monkey
with him, telling Ms. Johnson that if anyone was looking for
it, he had it. (Id.; Herring-Myers Dep. Ex. 2.)
Johnson, who was still upset, reported the incident to Nick
DeFazio, Plaintiffs supervisor, and Phil Mangis, Dollar's
Vice President of Information Systems. (Mangis Dep. 7:10-11,
9:16-25, 15:2-4, 10-12, 15:25-16:3, 16:23-25; Herring-Myers
Dep. Ex. 4.) Mr. Mangis then spoke with Mr. Brown, who was
also agitated, and retrieved the monkey from him.
(Id. at 17:9-13, 18:12-14, 19:4-5.) Ms. Johnson
later told Mr. Wolf that this action was inappropriate
because of the Martin Luther King, Jr. holiday. (Wolfe Dep.
14:13-21; Jackson Dep. 9:2-8, 10:10-11.) By contrast, Mr.
Jackson, who is also African American, was not offended and
did not believe it was a racial statement. (Jackson Dep.
9:12-10:1.) He would have reacted differently if the monkey
was hanging from a noose because it is symbolic of lynching.
(Id. at 10:18-11:15.)
Plaintiff returned to work the monkey was no longer there.
(Plaintiff Dep. 47:25-48:25.) He did not discuss the issue
with anyone or think much about it. (Id. at
Mangis reported the incident to Stephanie Herring-Myers, Vice
President of Human Resources, and gave her the monkey.
(Mangis Dep. 14:11-19, 19:6-20; Herring-Myers Dep. 16:15-18.)
Ms. Herring-Myers is African American. (Plaintiff Dep.
50:15-18.) Mr. Mangis informed Ms. Herring-Myers that there
are cameras in the facility and recommended that she review
the tapes to identify the perpetrator. (Mangis Dep. 20:4-7.)
Herring-Myers spoke with Ms. Johnson, who sobbed throughout
their conversation. (Herring-Myers Dep. 19:20-20:1; 20:4-22.)
While Ms. Johnson concluded that Plaintiff was the person
responsible, Ms. Herring-Myers stated that no one should make
this assumption but reassured her that Dollar would
investigate the incident. (Id. at 20:17-22.)
Herring-Myers next spoke with Mr. Brown. (Id. at
22:12-25.) Mr. Brown also told Ms. Herring-Myers that he
assumed it was Plaintiff who had hung the monkey.
(Id. at 23:2-7.) Ms. Herring-Myers told Mr. Brown
that she was conducting an investigation and they could not
make any assumptions at that point. (Id. at
Herring-Myers did conduct an investigation, which included
interviews, soliciting written statements, speaking with
department heads and working with corporate security to have
videotape information obtained. (Herring-Myers Dep.
12:12-23.) In addition to Ms. Johnson and Mr. Brown, she
spoke to Mr. Mangis, Mr. Wolfe and David Campbell, the head
of Corporate Security, and received written statements from
Mr. Jackson, Mr. Wolfe, Richard Kaniecki and John Sobolslay.
(Id. at 13:11-21, 14:13-19, 15:21-25.) Richard
Romano, a security investigator reviewed video of the work
area on the date in question and observed an employee hanging
the monkey, after which he provided still photographs to Ms.
Herring-Myers. (Id. at 11:22-12:3, 13:8-9.) The
video footage confirmed that Plaintiff hung the monkey.
(Herring-Myers Dep. 26:7- 9.)
Thursday, January 25, 2018, Ms. Herring-Myers called
Plaintiff at home and told him to report directly to Human
Resources the next day. (Plaintiff Dep. 50:1-4, 51:15-19.)
Plaintiff met the next day with Ms. Herring-Myers and Mr.
Romano. (Id. at 50:14-15.)
Herring-Myers told Plaintiff that they had recovered video of
him hanging the monkey and showed him the still pictures.
(Id. at 50:7-11.) She explained that the purpose of
the meeting was to hear Plaintiffs side of the story and to
validate the information that had been collected so far in
the investigation. (Herring-Myers Dep. 30:6-13.) However, the
decision to terminate him had already been made.
(Herring-Myers Dep 37:20-23; 41:23-42:9.) See also
Id. at 42:15-47:4; UC Hr'g at 21. Ms.
Herring-Myers advised Plaintiff that he had offended Ms.
Johnson and Mr. Brown and that she was also personally
offended as a black woman. (Herring-Myers Dep. 50:14-19,
19-22; 53:2-9.) Plaintiff asked how this offended anyone and
Ms. Herring-Myers told him because monkeys are associated
with black people. (Plaintiff Dep. 56:17-25.) While Plaintiff
concluded that he was being accused of being a "white
racist," he admits that he was not called a racist
during the meeting. (Plaintiff Dep. 80:3-5, 81:8-10.)
parties dispute whether Plaintiff told Ms. Herring-Myers that
he had purchased the monkey as a Valentine's Day
decoration. He claims that he did so (Id. at
55:9-14) while she denies that he made this statement
(Herring-Myers Dep. 51:8-14.) Mr. Romano claims that
Plaintiff stated that he hung the monkey as ...