Joseph Can. v. Samuel Grossi & Sons, Inc.

• Decision Date: 31 July 2020
• Docket Number: Civil Action No. 19-1790
• Citation: 476 F.Supp.3d 42
• Parties: Joseph CANADA, Plaintiff, v. SAMUEL GROSSI & SONS, INC., Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

476 F.Supp.3d 42

Joseph CANADA, Plaintiff,

v.SAMUEL GROSSI & SONS, INC., Defendant.

Civil Action No. 19-1790

United States District Court, E.D. Pennsylvania.

Signed July 31, 2020

Filed August 3, 2020

Timothy S. Seiler, Andrew Olcese, Ari Risson Karpf, Karpf, Karpf & Cerutti, P.C., Bensalem, PA, for Plaintiff.

Brad M. Kushner, Stevens & Lee PC, Philadelphia, PA, for Defendant.

MEMORANDUM

DuBois, J.

I. INTRODUCTION

Plaintiff, Joseph Canada, alleges in the Second Amended Complaint that defendant, Samuel Grossi & Sons, Inc. ("Grossi"), discriminated against him, retaliated against him, and subjected him to a hostile work environment because of his race and disability. The Second Amended Complaint also sets forth claims of retaliation and interference with plaintiff's rights under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. , unlawful access to stored communications, and unlawful invasion of plaintiff's privacy. Presently before the Court is defendant's motion for summary judgment and plaintiff's motion for partial summary judgment. For the reasons set forth below, defendant's motion for summary judgment is granted and plaintiff's motion for partial summary judgment is denied.

II. BACKGROUND¹

A. Plaintiff's Employment at Grossi

Plaintiff, a Black man, began his employment at Grossi, a steel producer, in 2009. Def.’s Statement Undisputed Material Facts ¶ 1 [hereinafter Def.’s SUMF]; Second Am Compl. ¶ 8. Throughout the course of his employment, he held the positions of Helper, Painter, Saw Operator, and Material Handler. Def.’s SUMF ¶ 1. Plaintiff "was a member of a collective bargaining unit represented by the Shopmen's Local Union No. 502 of the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers" ("the Union"). Id. ¶ 2. The terms and conditions of plaintiff's employment were governed by both a Collective Bargaining Agreement and Grossi's Employee Conduct and Disciplinary Action Policy that was provided to plaintiff. Id. ¶¶ 2-3, 74.

B. Plaintiff's Back Problems and FMLA Leave

Plaintiff suffers from "serious back problems" including herniated discs and arthritis in his back. Pl.’s Counter Statement Mat. & Disputed Facts ¶ 43 [hereinafter Pl.’s SUMF]. Plaintiff informed defendant of his back problems and need for medical accommodation. Id. ¶ 48. Plaintiff testified that defendant never provided him with Family and Medical Leave Act ("FMLA") forms, so he obtained the forms himself and gave the executed forms to Elena Osorio, defendant's Director of Human Resources. Id. ¶¶ 8, 50, 55; Canada Dep. 39:4-7; Def's SUMF ¶ 13. Plaintiff stated that Osorio initially "didn't want to accept" his FMLA forms, but despite her initial reluctance, she eventually did so. Canada Dep. 39:9-40:2; Pl.’s SUMF ¶¶ 58, 64. Plaintiff utilized FMLA leave "throughout the remainder of his employment." Pl.’s SUMF ¶¶ 58, 64. Osorio testified that she never approved FMLA leave for plaintiff and that he "took FMLA how he wanted, called out and said I'm calling out under my FMLA." Osorio Dep. 51:4-8. Osorio also said, she "just let [plaintiff] take his FMLA" leave, and that plaintiff was not assessed any attendance points for taking that leave. Id. 53:20-23. Attendance points were instituted in late 2018 as part of a "no-fault" attendance policy. Def.’s SUMF ¶ 17. "Under the policy, employees accumulate points for absences unless those absences are pre-approved or otherwise excused." Id.

Plaintiff testified that "[e]very time I took off [under the FMLA], I was harassed when I came back to work," and there was "[a]lways an attitude." Pl.’s SUMF ¶¶ 67-68. He claims that Osorio would "talk nasty" to him after he returned from FMLA leave, and she would not respond to his messages when he informed her that he was taking time off under the FMLA. Id. ¶ 72; Canada Dep. 51:20-52:6, 53:10-14. According to plaintiff, on one occasion after taking FMLA leave, Joseph Beck, defendant's shop foreman/shop superintendent,² said "we really needed you yesterday. Why did you take off?" Pl.’s SUMF ¶¶ 4, 6, 69. On another occasion, Edward Thompson, defendant's Director of Operations, asked "why did you take off?" Id. ¶¶ 4, 6, 69. Additionally, plaintiff testified that after he returned from FMLA leave, "[Beck and Thompson] wouldn't tell me anything; they wouldn't give me the work. They would just be pissed off and wouldn't give me my work orders. So I would have to guess what needed to be done." Id. ¶ 70. Despite Beck and Thompson not giving plaintiff work orders, plaintiff stated that he was able to speak to the other machine operators to "figure it out," and "once [he] got into the flow, [he] just kept it moving, [and] did what [he] had to do." Canada Dep. 50:13-19, 51:14-15.

C. Plaintiff's Evidence of Racial Discrimination and Hostile Work Environment Based on His Race

Plaintiff testified that from March 2018 until July 2019, Steve Carlberg, plaintiff's coworker, Osorio the human resources manager, and Beck, defendant's shop foreman/shop superintendent, all used the N-word.³ Pl.’s SUMF ¶¶ 12, 24, 31, 33, 37, 38-39. However, plaintiff was only called the N-word by Carlberg. Id. ¶¶ 15, 31.

Plaintiff testified that Carlberg called plaintiff the N-word twice. Id. ¶¶ 15, 31. In March of 2018, Carlberg called plaintiff a "fucking nigger" after plaintiff accidently knocked over Carlberg's radio. Pl.’s SUMF ¶ 15. Plaintiff told Cheryl Thorpe, a human resources assistant, about the incident. Id. ¶ 16. Thereafter, John Grossi, the co-owner, president and CEO of Grossi, told plaintiff "[d]on't worry about it. I'll take care of it." Id. ¶ 7, 16. John Grossi stated that Carlberg would be suspended for a day. Id. However, when Carlberg came into work the next day, apparently not suspended, plaintiff got into an argument with him and both men were sent home. Id. ¶¶ 20-21. Carlberg called plaintiff the N-word a second time in February 2019, for which he was given a final verbal warning.⁴ Id. ¶ 31; Pl.’s Ex. F. Plaintiff also testified that on another occasion, he heard Carlberg say "I should have known the nigger took it. A nigger ate my sandwich," not referring to plaintiff. Id. ¶ 24. Several other employees complained to Osorio about Carlberg's use of the N-word at that time, but he was not disciplined for the incident. Id. ¶¶ 8, 25-26, 29. Carlberg left his job at Grossi in February 2019. Id. ¶ 35.

Plaintiff testified that he complained to Osorio in February of 2019 that Carlberg called him the N-word. Canada Dep. 57:11-24. According to plaintiff, Osorio told him, "[w]ell, you know, me and my sister, we dated black guys and I said, ‘nigger’ before." Id. Plaintiff also said Osorio "used the word ‘nigger’ free, like it was nothing." Id. at 120:3-8. Additionally, in February 2019, Osorio held a meeting with all the employees at Grossi because she had received harassing text messages. Def.’s SUMF ¶ 54. At that meeting, Osorio, apparently believing that plaintiff was sending her harassing text messages, told plaintiff to "stop fuckin’ harassing me.

Stop texting me. I have a fuckin’ gun, and I will fuckin’ shoot you." Canada Dep. 54:21-55:18.

Plaintiff also claims that other employees told him that Beck, defendant's shop foreman/shop superintendent, used the N-word twice. Pl.’s SUMF ¶ 38. First, plaintiff says it was reported that Beck told a crude story about sleeping with a Black woman and used the N-word in that story. Id. ¶ 38; Canada Dep. 75:7-13. When plaintiff spoke to Beck about the story, Beck admitted that he used the slur, apologized to plaintiff, and requested that he not report the incident to Gene Grossi, a co-owner of defendant. Id. ¶ 7; Canada Dep. 74-1:19, 75:17-20. Plaintiff did not report the incident. Canada Dep. 74-1:19. Second, plaintiff heard from co-employees that Beck used the N-word to describe players on the Philadelphia 76ers NBA basketball team when he was unable to give away tickets to a 76ers game. Pl.’s SUMF ¶ 39. Additionally, in July 2019, when plaintiff inquired about a joke Beck had just told a coworker, Beck responded, "I was just telling Brian Baxter how I hate black jelly beans. I fuckin’ hate them. I just hate black fuckin’ jelly beans." Id. ¶ 40. Plaintiff believed that Beck was referring to Black people. Id.

D. Plaintiff's One-Day Layoff

Grossi occasionally orders temporary layoffs due to a lack of work. Def.’s SUMF ¶ 34. Temporary layoffs are governed by the Collective Bargaining Agreement and are scheduled in order of seniority. Id. ¶ 35. The Collective Bargaining Agreement "also contains a provision allowing employees laid off to ‘bump’ less senior employees in other job classifications they can perform." Id. ¶ 36. "Bumping is governed by the Collective Bargaining Agreement and, to bump someone with less seniority, one must be immediately able to perform the work." Id. ¶ 37.

In March 2019, due to a lack of available work, Grossi was forced to order temporary layoffs. Id. ¶ 38. "Based on the seniority provision in the Collective Bargaining Agreement, 23 employees, including Canada, were selected for layoff." Id. Plaintiff attempted to avoid the layoff by "bumping" his cousin, who worked in the paint shop. Id. ¶ 42. However, in October 2018, plaintiff provided defendant with a doctor's note that stated "Mr. Canada was seen in our ER today. He must be excused from working with zinc primer because of respiratory problems when exposed to that agent." Id. ¶¶ 7, 43. After receiving the October 2018 note, defendant removed plaintiff from the paint shop and assigned him to work as a Machine Operator. Id. ¶ 7. Approximately four months later, on February 20, 2019, plaintiff submitted a second doctor's note, written by a different physician, that stated: "Joseph Canada may work around paint." Pl.’s Ex. F. Plaintiff testified that he obtained the February 2019 doctor's note because he knew there was a layoff coming. Canada Dep. 59:18-60:8, 66:8-12. However, defendant did not accept the second doctor's note because "i...