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Hennessey v. Dollar Bank, FSB

United States District Court, W.D. Pennsylvania

December 12, 2019

DOLLAR BANK, FSB, Defendant.



         Currently pending before the Court is Defendant's motion for summary judgment. For the reasons that follow, its motion for summary judgment will be granted.

         I. Relevant Procedural History

         On or 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. ¶ 2(b).)

         Plaintiff 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).[1]

         Discovery 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.

         II. Factual Background

         A. Plaintiffs Employment with Dollar

         Plaintiff, a Caucasian male, was employed by Dollar from June 2000 until he was terminated in January 2018. (Compl. ¶ 3; Plaintiff Dep. 21:3-9.[2]) 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.)

         As part 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, 5.)[3]

         The 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.)

         The 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.)

         Dollar's 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. 23:12-18, 25:18-26:8.)

         As a 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.)[4]

         Different 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[5]; Wolfe Dep. 15:13-19[6]; Jackson Dep. 6:7.[7])

         B. Events Leading to the Incident at Issue

         On 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. 12.[8]) 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.)[9] 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.)

         Although 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.)

         Although 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. at 45:18-20.)

         Plaintiff 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.)

         Plaintiff 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.)[10]

         On 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.)

         Ms. 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.)[11]

         When 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 48:22-49:8.)

         C. Dollar's Investigation

         Mr. 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.)

         Ms. 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.)

         Ms. 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 23:12-17.)

         Ms. 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.)[12] 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.)

         D. Plaintiffs Termination

         On 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.)

         Ms. 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.[13] 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.[14] (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.)

         The 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.)[15] Mr. Romano claims that Plaintiff stated that he hung the monkey as ...

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