Nguyen v. Ak Steel Corp.

Citation735 F.Supp.2d 346
Decision Date25 August 2010
Docket NumberCivil Action No. 08-1320
PartiesTung NGUYEN, Plaintiff, v. AK STEEL CORPORATION, Defendant.
CourtU.S. District Court — Western District of Pennsylvania

John W. Murtagh, Adam K. Hobaugh, Murtagh & Cahill, Wexford, PA, for Plaintiff.

Floyd A. Clutter, Cohen & Grigsby, Pittsburgh, PA, for Defendant.


LENIHAN, United States Magistrate Judge.

Currently before the Court for disposition is Defendant's Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56 and Western District of Pennsylvania Local Rule 56.1 (Doc. No. 20). In this employment discrimination case, Plaintiff, Tung Nguyen, asserts he was terminated based on national origin discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. § 951 et seq. , by his former employer, AK Steel Corporation ("AK Steel" or "Company"). AK Steel moves for summary judgment in its favor on each of Plaintiff's discrimination claims on the basis that Plaintiff cannot establish either (1) a prima facie case of discrimination; or (2) proffer evidence sufficient to show that AK Steel's stated reasons for terminating his employment were a pretext for national origin discrimination.

For the reasons set forth below, the Court finds that material issues of fact exist precluding summary judgment. Therefore, the Court will deny Defendant's Motion for Summary Judgment.


Plaintiff Tung Nguyen (hereinafter "Nguyen") was employed by Defendant AK Steel at a steel processing facility in Butler, Pennsylvania, known as the "Butler Works," until he was discharged on March 1, 2007. The events leading up to his discharge can be summarized as follows.

In January 2007, Rick D. Winter ("Winter"), Manager of Human Resources at the Butler Works, was advised that a local scrap dealer possessed some brass that may belong to AK Steel. (Winter Dep. at 8-9.) Winter called Thomas R. Hasty ("Hasty"), AK Steel's Manager of Internal Auditing, and asked him to commence an investigation. ( Id. at 11-14.) Subsequently, Hasty contacted the local scrap dealer, Greco Welding ("Greco"), and met with two of its employees to find out how Greco came to possess AK Steel's brass. (Winter Dep. at 11-12; Hasty Dep. at 26-28.) While at Greco, Hasty took custody of the material suspected to belong to AK Steel,and was also provided with a scrap ticket bearing Nguyen's signature, and license plate number. (Winter Dep. at 11-12; Hasty Dep. at 27-29.) A Greco employee informed Hasty that the individual who sold the materials to Greco was "Asian, maybe Korean." (Hasty Dep. at 28.)

After Hasty returned from Greco, he took the materials he obtained from Greco and compared them to parts in AK Steel's inventory. Hasty was able to match certain brass to unique parts from the Company's inventory, and determined that some of the materials were unique to parts found on equipment in the Slab Conditioning Department, where Nguyen worked. (Winter Dep. at 12-14; Hasty Dep. at 29-32.)

On February 22, 2007, Nguyen was summoned to an investigatory meeting with Hasty, Charles David Kish ("Kish"), Section Manager of Operations at the Butler Works, Robert Newcombe from Labor Relations, and Bob Crawford, Nguyen's union representative. (Hasty Dep. at 32-33; Kish Dep. at 7-8; Pl.'s Dep. at 73,75.) At this meeting, Newcombe and Kish explained the purpose of the meeting was to determine facts and gather information regarding the alleged theft of Company property. (Hasty Dep. at 33.) They also encouraged Nguyen to answer their questions truthfully and cautioned him that the meeting could result in disciplinary action. ( Id. at 33-34.) Hasty then proceeded to present to Nguyen new parts taken from the Company's storeroom, one at a time, and asked him if he was familiar with them, to which Nguyen responded in the affirmative. ( Id. at 34.) Nguyen recognized the parts as ones he used every day in his job. ( Id.)

Next, from a second box, Hasty presented to Nguyen, one at a time, the parts he obtained from Greco that corresponded to the new ones he had just shown to Nguyen. Nguyen stated he was familiar with them as they are the same ones he used in his job to do repairs. After he was shown several of the parts from Greco, Nguyen and his union representative requested and took a brief recess, after which the meeting resumed and Nguyen continued to identify the remaining parts in the second box. (Hasty Dep. at 34.)

Finally, from a third box of miscellaneous materials, Hasty began to ask Nguyen if he was familiar with the items in that box. ( Id. at 34-35.) Nguyen recognized the box as one similar to a box he had in his garage. ( Id. at 35.) Hasty then asked Nguyen if he had sold or taken the material in the third box to Greco's scrap yard, to which Nguyen replied, "no." Hasty next asked Nguyen if he had taken the material from AK Steel, to which Nguyen also replied, "no." Hasty then presented to Nguyen the scrap ticket and asked him to identify the signature, and Nguyen confirmed that it was his signature on the ticket. Hasty also asked Nguyen to identify the license plate number on the scrap ticket, but Nguyen could not remember his license plate number. Hasty then asked Nguyen if he did not take the material from AK Steel and he did not sell it at Greco, to clarify how his signature ended up on the scrap ticket; Nguyen did not offer any explanation in response. ( Id.)

Hasty repeated the same questions four or five times, and recounted Nguyen's responses as follows:

[Nguyen] started to then tell me about being a good employee and how he liked to recycle and he did repair work, and if he had copper wire, he would throw it in the box and that's what that box was from. Over the course of the meeting, he then said, well, a [contractor] had been in the repair shop and done some repairs and the metal-some of the scrap had been laying on the floor for a coupleof months. He then said that, well, he remembered he did sell some of the material, but he didn't remember where he sold it. Subsequently, he said that he bought a couple of pieces of brass from the [contractor] when they were doing the repair.

Id. at 35-36. Nguyen could not recall, however, either the name of the contractor who made the repairs or when the repair work was performed, when asked by Hasty. ( Id. at 36.) Allegedly Nguyen also stated that the parts were left over from a repair and he bought a couple of pieces of scrap from the contractor for approximately $5.00. ( Id.)

Neither Hasty nor Winter conducted any further investigation after the initial investigatory meeting on February 22, 2007. (Hasty Dep. at 37; Winter Dep. at 37.) Following the investigatory meeting, Nguyen received a letter from Kish, dated February 23, 2007, notifying Nguyen that he was being suspended beginning February 24, 2007, with intent to discharge effective March 1, 2007, as a result of his theft of Company property. (Pl.'s Dep. at 85-86; Pl.'s Ex. 16; Kish Dep. at 13.) Sometime after receiving this notice, Plaintiff told several co-workers in his department that he had taken the scrap material out of the plant. When his coworkers tried to reassure him, Nguyen responded, "I took the material. I didn't pay for anybody, that's stealing." (Pl.'s Dep. at 164.)

Generally, contractors are instructed to remove their scrap material from the plant; according to Hasty, "[t]hat's part of their contract. They are required to clean up their area, and as part of that, they may remove the scrap or they may not." (Arb. Hrg. Tr. at 50.) Documentation entitled "Butler Works-Contractors" indicates that the contractors involved in the crane work in Nguyen's department were not instructed on "disposition of waste and unused material." (Ex. 20, Pl.'s App. to Pl.'s Resp. Concise Stmt. Disputed Material Facts ("Pl.'s App."), ECF No. 32-4.) Moreover, both the 2002 and 2009 versions of the AK Steel Master Agreement provide that except as otherwise permitted by AK Steel, the contractor is required at the completion of the work to remove its tools, equipment, rubbish and surplus material and leave the work area clean and ready for use. With regard to salvable material, the master agreement specifically provides:

Any scrap steel, iron or other salvable material resulting from the performance of any services or the supplying of any materials pursuant to an AKS purchase order or service order, or the cost of which is paid by AKS under and provision hereof, shall be the property of AKS. If such material is not paid for by AKS, it shall be the property of the Contractor and Contractor shall promptly, at its own expense, remove the same from AKS's property, unless otherwise agreed upon.

(Frisbee Dep., Exs. 7 & 9, ¶¶ 12, 14.) Although the Company maintains that the scrap brass left behind by the crane contractor was Company property, 2 there does not appear to be any documentary evidence to conclusively establish what the understanding was between the Company and crane contractor vis a vis ownership of the scrap brass at issue here.

Nguyen understood that AK Steel's policies prohibited the removal of any material from the facility without a supervisor-approved material pass, and although he had previously obtained a material pass to remove waste wood from the Company's facility,Nguyen did not obtain a material pass when he removed the scrap brass at issue here. (Pl.'s Dep. at 29-31.) Nguyen proffered the following explanation for failing to get a material pass to remove the scrap brass:

Q. Did you ask Mr. Schmidt for a material pass to remove this material?
A. No.
Q. Why not?
A. It's laying there for a long time. Finally, somebody have to clean it up. And I clean up, and it at the end of the day I didn't want to wait to go through the problem-probably laziness to go through the problem of getting paperwork done. I just took it.
Q. Did you think he wouldn't give you the material pass?
A. I

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