Youssef v. Anvil Intern.

• Decision Date: 22 January 2009
• Docket Number: No. 06-4926.,06-4926.
• Citation: 595 F.Supp.2d 547
• Parties: Nagi YOUSSEF v. ANVIL INTERNATIONAL, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

Page 547

595 F.Supp.2d 547

Nagi YOUSSEF v. ANVIL INTERNATIONAL, et al.

Civil Action No. 06-4926.

United States District Court, E.D. Pennsylvania.

January 22, 2009.

COPYRIGHT MATERIAL OMITTED

Nina B. Shapiro, Lancaster, PA, for Plaintiff.

John L. Senft, Senft Law Firm, LLC, York, PA, for Defendants.

MEMORANDUM RE SUMMARY JUDGMENT MOTION

BAYLSON, District Judge.

A novel state law issue requires resolution in this employment discrimination case. Does Lancaster County have the power to create a private cause of action for violation of the Lancaster County Human Relations Act ("LCHRA") brought by a terminated employee of a private company? Concluding that Lancaster County does not have this power under Pennsylvania state law, the Court will grant Defendants' Motion for Summary Judgment as to this claim, but find that Plaintiff has sufficient evidence to proceed to trial on other claims.

In an action brought pursuant to Title VII of the Civil Rights Act of 1964, Section 1981 of the Civil Rights Act of 1866, the LCHRA, the Pennsylvania Human Relations Act (PHRA), and common-law defamation, Plaintiff Nagi Youssef has alleged discrimination based on a failure to promote, retaliation, and harassment by his employer, Defendant Anvil International, and employees Larry Layman, Michael Millhouse, and Donald Moore. Defendants have moved for summary judgment on all claims. For the following reasons, the Motion will be GRANTED in part and DENIED in part.

I. Factual Background

A. Plaintiff's Employment History

Plaintiff is Egyptian. (Defs.' Statement Undisputed Fact ¶ 1.) Plaintiff was hired by Defendant Anvil as a millwright in February 1994. (Id. at ¶ 2.) As a millwright, he troubleshoots and repairs machines in the company machine shop. Plaintiff has received positive evaluations during his employment at Anvil. (Defs.' Mot. Summ. J. Exs. 8, 9; Pl.'s Resp. Defs.' Mot. Summ. J. Ex. D.) Plaintiff was promoted to Master Millwright in 2001.

Plaintiff sought advancement to be a supervisor starting in 2002. Plaintiff specifically identified two supervisor positions for which he applied and was interviewed. (Defs.' Mot. Summ. J. Ex. 3, Pl.'s Resp. to Defs.' Interrog. # 15). The first is a maintenance supervisor position filled by outside hire Steve Hatfield on January 13, 2003.¹ The second is a production supervisor position filled internally by Pam Lightner (whom the Court also believes is incorrectly referred to in the record as Pam Widener/Widner) on October 18, 2004.² Plaintiff identified an additional production supervisor position to which he applied that was filled in 2003 or 2004, but he could not name who filled the position. (Defs.' Statement Fact ¶ 5.) Finally, Plaintiff contends that in 2005 he responded to a newspaper ad for a maintenance planner position formerly held by Matthew Kossick. (Id. at ¶ 6.) Anvil decided not to fill this position due to department restructuring (Id. at ¶ 21.)³

Despite admitting to applying to these positions in his interrogatory responses, Plaintiff argues in his Response brief that he did not formally "apply" for supervisor positions because Anvil did not have a formal in-house application process and employees learned of openings by "word of mouth." (Pl.'s Counter-Statement Undisputed Fact ¶ 4.) Defendant did not hire any production supervisors in the year prior to Plaintiff's termination (Defs.' Mot. Summ. J. Ex. 7 at ¶ 3, Suor Aff.)

Plaintiff met with general manager Paul Suor in Summer 2004 to discuss his desire to become a supervisor. Suor instructed Plaintiff to contact Department Supervisor Mike Millhouse and Human Resources Director Don Moore to develop a plan to work on his supervisory skills. (Defs.' Statement Fact ¶ 17.) Moore suggested that Pl. take supervisory courses at Harrisburg Area Community College through their tuition reimbursement program. (Defs.' Mot. Summ. J. Ex. 1 at 157, Youssef Dep.) Plaintiff completed one course on November 30, 2004. (Id. Ex. 11.) Moore also told Plaintiff that he would be invited to local supervisory training on-site "as time goes on." Plaintiff was never invited to training. (Pl.'s Counter-Statement Fact ¶ 18.)

Sometime in August 2005, Moore and Millhouse held a meeting with Plaintiff to tell him that he was not going to be considered for future supervisor opportunities. (Pl.'s Resp. Defs.' Mot. Ex. AA at 113, Moore Dep.) An unsigned note dated August 9, 2005, presumably in regards to the meeting, states "Nagi performance—not impressing anyone—supv. not getting feedback he needs to recommend promotion e.g. S/D sheets. [A]t this point Nagi states `done talking' & walked out." (Pl.'s Resp. Defs.' Mot. Ex. T.) Also in August or September 2005, Moore and Millhouse held a meeting with Plaintiff to discuss some performance and record-keeping issues. Plaintiff responded "that's bullshit, I don't want to hear nothing" and left the meeting. (Def.'s Mot. Summ. J. Ex. 1 at 192-94, Youssef Dep.)

On September 12, 2005, Plaintiff filed a charge of discrimination with the Lancaster County Human Relations Commission (LCHRC) alleging national origin discrimination for his failure to be promoted. (Defs.' Mot. Summ. J. Ex. 12.) The charge was dual-filed with the Pennsylvania Human Relations Commission (PHRC) and Equal Employment Opportunity Commission (EEOC).

B. Plaintiff's Termination

On November 8, 2005, Plaintiff's immediate supervisor, Larry Layman, assigned him to repair several machines, including Machine No. 72. (Defs.' Statement Fact ¶ 25.) A work order had been filed for the Machine the night before. (Defs.' Mot. Summ. J. Ex. 13.) According to Plaintiff, the Machine had been down for a long time and others had tried to fix it without leaving notes or instructions. (Id. Ex. 1 at 218, Youssef Dep.) However, Machine No. 72 was not "locked out" or "tagged out" to indicate that another employee had started repairs on the machine. (Defs.' Statement Fact ¶ 28.)

Plaintiff spent about fifteen minutes trying to troubleshoot the machine but could not fix it. (Id. ¶ 30.) Plaintiff contends that he was not capable of fixing the machine and it required work done by a machinist (someone who makes machine parts), not a millwright (who repairs machines). (Pl.'s Counter-Statement Fact ¶ 26.) The machine eventually took fifty-five hours to fix and was not repaired until November 14. (Pl.'s Resp. Defs.' Mot. Ex. O.)

After unsuccessfully attempting to fix the machine, Plaintiff proceeded to work on another machine. Shortly thereafter, Layman came by and asked Plaintiff why he was not working on Machine No. 72. (Defs.' Statement Fact ¶ 34.) There is a dispute of fact as to what Plaintiff replied to Layman. In Layman's testimony to the Unemployment Compensation Board of Review, he stated that Nagi told him "he would not fix the machine." (Pl.'s Resp. Defs.' Mot. Ex. V at 55.) However, in Layman's deposition he agreed with counsel's statement that Nagi told him "he couldn't fix the machine." Layman told Plaintiff to continue working on the machine, but Plaintiff repeated he did not know what the problem was and Layman needed to show him the problem. (Defs.' Mot. Summ. J. Ex. 1 p. 219, Youssef Dep.)

After this encounter, Layman came walking through the shop and said "I'm going to fucking fire Nagi." (Pl.'s Resp. Defs.' Mot. Ex. Q at 4., Tshudy LCHRC Test.; Id. Ex. BB at 167:18-19, Layman Dep.) Layman then instructed Union President Maris Tshudy to bring Plaintiff to his office for a meeting. During the meeting, Layman asked Plaintiff to return to Machine No. 72 but Plaintiff refused, claiming that co-workers were not doing their share of the work. (Def.'s Mot. Summ. J. Ex. 15 ¶¶ 21, 25, Tshudy Aff.) At one point, Plaintiff left the meeting and returned shortly after with a large machine spindle, weighing 40 to 50 lbs., which he slammed on Layman's office floor and yelled, "Know your fucking job, Layman." (Id. ¶ 26.) Layman told Plaintiff he was suspended and to go home. (Defs.' Statement Fact ¶ 40.)

On November 9, 2008, Plaintiff discussed the events of November 8 with Moore by telephone. (Id. ¶ 41.) Moore recommended termination to General Manager Kim based on Plaintiff's insubordination on November 8 and during the prior meeting in August or September 2005. (Defs.' Mot. Summ. J. Ex. 17 at 57, Moore Dep.) "Insubordination, refusal to do assigned work, refusal to obey orders ..." are grounds for disciplinary action under the Anvil "Shop Rules and Regulations" (Id. Ex. 18.) Kim approved Moore's recommendation for termination. (Id. Ex. 17 at 41, Moore Dep.) Plaintiff was terminated on November 10, 2005. Plaintiff alleges that after his termination, Layman defamed him to the maintenance staff by telling them that Plaintiff had refused to do the job assigned to him and had walked away from the job. (Id. Ex. 1 at 239, Youssef Dep.)

C. Events Following Plaintiff's Termination

Following his termination, on November 15, 2005, Plaintiff filed a second charge with the LCHRC alleging retaliation. (Id. Ex. 19.) On December 12, 2005, Plaintiff filed an Amended Complaint with the LCHRC adding a hostile work environment allegation, which he had not raised previously. The Complaint alleged that Layman had made comments and "camel jokes" that ridiculed his nationality and were "offensive, intimidating, condescending, and rude." (Id. Ex. 20.) In his deposition, Layman admitted to laughing at, but not actively participating in or making, jokes about Mr. Youssef's Egyptian heritage. He admitted that there was some "just kidding around and stuff." (Pl.'s Resp. Defs.' Mot. Ex. BB at 193-94, Layman Dep.) Layman did not stop such jokes. (Id.) However, co-employee Gary Emenheiser stated that: "Racially/Ethnic charged jokes were common in the work place at Anvil and enjoyed by Larry Layman who added jokes of his own."⁴ (Id. Ex. P, Emenheiser Aff.) In his deposition, Plaintiff stated that Layman had not made such comments for "like maybe one year or—before separated." (...