Sannoh v. Horizon House

MOTION for Summary Judgment

E.D. Pa.May 3, 2017

FPDOCS 32835537.1 MOTION FOR SUMMARY JUDGMENT OF DEFENDANT HORIZON HOUSE, INC. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, for the reasons set forth in the accompanying Brief in Support of the Motion for Summary Judgment of Defendant Horizon House, Inc. and the Statement of Undisputed Facts in Support of the Motion for Summary Judgment of Defendant Horizon House, Inc., and all exhibits thereto, Defendant Horizon House, Inc., by and through its undersigned counsel, Fisher & Phillips LLP, hereby respectfully requests that the Court enter an Order granting summary judgment against Plaintiff Frank Sannoh (“Plaintiff”) on the only remaining claim asserted in Plaintiff’s Complaint, because there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. FISHER & PHILLIPS LLP Date: May 3, 2017 By: /s Chad A. Flores Todd Alan Ewan, Esquire Chad A. Flores, Esquire 150 N. Radnor Chester Road, Suite C300 Radnor, PA 19087 (610) 230-2150 (phone) tewan@fisherphillips.com cflores@fisherphillips.com Attorneys for Defendant Horizon House, Inc. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA FRANK SANNOH, : : Plaintiff, : : CASE NO.: 2:16-CV-05233-WB v. : HORIZON HOUSE, INC., : : : Defendant. : Case 2:16-cv-05233-WB Document 13 Filed 05/03/17 Page 1 of 2 FPDOCS 32835537.1 CERTIFICATE OF SERVICE I, Chad A. Flores, Esquire, hereby certify that on this 3rd day of May 2017, a true and correct copy of the foregoing Motion for Summary Judgment of Defendant Horizon House, Inc., Proposed Order, Brief in Support of Defendant’s Motion for Summary Judgment, Statement of Undisputed Facts in Support of Defendant’s Motion for Summary Judgment, and all exhibits thereto were filed via the Court’s electronic filing system and were served upon the following attorneys via the Court’s electronic filing system: Gerald Jay Pomerantz, Esquire Law Offices of Gerald Jay Pomerantz 21 S. 12th Street, Suite 700 Philadelphia, PA 19107 Attorney for Plaintiff Frank Sannoh /s Chad A. Flores Chad A. Flores, Esq. Case 2:16-cv-05233-WB Document 13 Filed 05/03/17 Page 2 of 2 BRIEF IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT HORIZON HOUSE, INC. FISHER & PHILLIPS LLP Todd Alan Ewan, Esquire Chad A. Flores, Esquire 150 N. Radnor Chester Road, Suite C300 Radnor, PA 19087 (610) 230-2150 (phone) tewan@fisherphillips.com cflores@fisherphillips.com Attorneys for Defendant Horizon House, Inc. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA FRANK SANNOH, : : Plaintiff, : : CASE NO.: 2:16-CV-05233-WB v. : HORIZON HOUSE, INC., : : : Defendant. : Case 2:16-cv-05233-WB Document 13-1 Filed 05/03/17 Page 1 of 15 i TABLE OF CONTENTS Table of Authorities ........................................................................................................................ ii I. INTRODUCTION ...............................................................................................................1 II. PROCEDURAL HISTORY.................................................................................................2 III. STATEMENT OF FACTS ..................................................................................................3 IV. LEGAL ARGUMENT.........................................................................................................3 A. Legal Standard for Grant of Summary Judgment ....................................................3 B. Summary Judgment Should Be Granted Because Plaintiff Failed to Establish Retaliation under the McDonnell Douglas Burden- Shifting Framework .................................................................................................5 1. Plaintiff Has Failed to Establish a Prima Facie Case of Retaliation ................................................................................................................6 C. Horizon House Has Fulfilled Its Burden of Showing a Nondiscriminatory Reason for Its Actions ..............................................................8 D. Summary Judgment Should be Granted Because Plaintiff Cannot Establish That Horizon House’s Legitimate, Nondiscriminatory Reason is Pretextual or That Horizon House Possessed Discriminatory Intent ...............................................................................................8 V. CONCLUSION..................................................................................................................11 Case 2:16-cv-05233-WB Document 13-1 Filed 05/03/17 Page 2 of 15 ii TABLE OF AUTHORITIES Cases Abramson v. William Paterson Coll. of N.J., 260 F.3d 265 (3d Cir. 2001).................................................................................................... 6, 7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ............................................................................................................... 3, 4 Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-702 (3d Cir. 1995)........................................................................................... 7 Brewer v. Quaker State Oil Rf. Corp., 72 F.3d 326, 332 (3d Cir. 1995).................................................................................................. 9 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ................................................................................................................ 3, 4 Chiaradonna v. Rosemont Coll., No. 06-CV-1015, 2008 U.S. Dist. LEXIS 7476 (E.D. Pa. Feb. 1, 2008).................................... 5 Choe-Rively v. Vietnam Veterans of America Chapter 83, 135 F. Supp. 2d 462 (D. Del. 2001) ............................................................................................ 9 Crawford v. Metro. Gov’t of Nashville & Daudsin Cnty, Tenn., 555 U.S. 271 (2009) .................................................................................................................... 6 DeMaio v. Bed, Bath & Beyond of King of Prussia, Inc., No. 2:03-CV-5957, 2005 U.S. Dist. LEXIS 43104 (E.D. Pa. Jan. 25, 2005) ............................. 5 Dorsey v. Pittsburgh Assocs., 90 Fed. App’x 636 (3d Cir. 2004)............................................................................................... 5 Edwards v. Pennsylvania Tpk. Comm’n, 80 Fed. App’x 261 (3d Cir. 2003)............................................................................................... 3 Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509 (3d Cir. 1992)........................................................................................................ 9 Fasold v. Justice, 409 F.3d 178 (3d Cir. 2005)........................................................................................................ 5 Fuentes v. Perksie, 32 F.3d 32 F.3d 759, 763 (3d Cir. 1994) ................................................................................... 9,10 Fusco v. Bucks Cnty., No. 08-2082, 2009 U.S. Dist. LEXIS 118924 (E.D. Pa. Dec. 21, 2009) .................................... 5 Hague v. Thompson Distrib. Co., 436 F.3d 816 (7th Cir. 2006)..................................................................................................... 10 Hill v. Potter, No. 07 CV 6835, 2009 U.S. Dist. LEXIS 50681 (N.D. Ill. June 16, 2009) .............................. 10 Case 2:16-cv-05233-WB Document 13-1 Filed 05/03/17 Page 3 of 15 iii Jones v. School Dist. of Philadelphia, 198 F.3d 403 (3d Cir. 1999)............................................................................................. 4,5,9,10 Law v. Garden State Tanning, 159 F. Supp. 2d 787 (E.D. Pa. 2001) .......................................................................................... 5 Markham v. Reish, No. 08-cv-2222, 2010 U.S. Dist. LEXIS 63846 (M.D. Pa. June 25, 2010) ................................ 4 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986) .................................................................................................................... 3 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ......................................................................................................... 5,8,9,10 Podonik v. U.S. Postal Serv., 409 F.3d 584 (3d Cir. 2005) ....................................................................................................... 3 S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., 690 F.2d 1235 (9th Cir. 1982)..................................................................................................... 4 Sheridan v. E.I. Dupont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996).................................................................................................... 10 Solomon v. Soc’y of Auto. Eng’rs, 41 Fed. App’x 585 (3d Cir. 2002)............................................................................................... 4 St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) .................................................................................................................. 10 Walton v. Mental Health Ass’n of Southeastern PA, 168 F.3d 661 (3d Cir. 1999)........................................................................................................ 5 Williams v. Borough of W. Chester, 891 F.2d 458 (3d Cir. 1989).................................................................................................. 3,4,9 Statutes Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ................................................. 2 Fed. R. Civ. P. 56(a) ....................................................................................................................... 3 Pennsylvania Human Relations Act, 43 P.S. § 951, et seq............................................................. 2 The Civil Rights Act of 1866, 42 U.S.C. § 1981............................................................................ 2 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq............................................. 2 Other Authorities EEOC COMPLIANCE MANUAL §§ 8-II-B(1), (2), p. 614:0003 (Mar. 2003) .................................... 6 Case 2:16-cv-05233-WB Document 13-1 Filed 05/03/17 Page 4 of 15 1 I. INTRODUCTION This lawsuit involves only one, baseless claim for retaliation that should be dismissed as a matter of law because Plaintiff Frank Sannoh (“Plaintiff”) did not engage in any protected activity. For nearly fourteen years, Plaintiff worked for Defendant Horizon House, Inc. (“Defendant” or “Horizon House”), and for nearly fourteen years Plaintiff completed certain federally-mandated training, including Infectious Disease Control (“IDC”) training. Horizon House, which is subject to strict oversight and fines related to this IDC training, is required to take this training seriously. Plaintiff knew this. Despite being aware of this critical requirement for continued employment, and despite multiple warnings in 2015 that time was running out to take the required training, Plaintiff did not. Consistent with company policy, Plaintiff’s failure to complete the required training was considered a voluntary resignation and, thus, Plaintiff’s employment with Horizon House ended. Plaintiff does not allege that Horizon House engaged in any unlawful conduct in connection with his separation from employment. In fact, in a post-separation letter, Plaintiff’s attorney concedes that Horizon House’s actions were not unlawful. Following his voluntary resignation, Plaintiff attempted to avail himself of Horizon House’s discretionary grievance process. Plaintiff failed, even after repeated warnings, to follow the proper grievance procedures and, therefore, the grievance was closed. Horizon House does not allow third parties to participate in the grievance process. This is a clear, longstanding, no- exceptions-made policy. Plaintiff, however, insisted that his attorney participate in the process; Case 2:16-cv-05233-WB Document 13-1 Filed 05/03/17 Page 5 of 15 2 and it was for this reason, and this reason alone, that Horizon House dismissed Plaintiff’s grievance. Notwithstanding the foregoing, Plaintiff now claims he was the victim of unlawful retaliation. This, despite not engaging in any recognized protected activity, much less even alleging he engaged in any such protected activity. Horizon House in no way retaliated against Plaintiff with respect to his employment conditions, the separation of his employment, or his access to the grievance process. Plaintiff’s retaliation claim is, therefore, unfounded and unsubstantiated. As such, Horizon House respectfully requests that this Court grant the Motion for Summary Judgment of Defendant Horizon House, Inc. (the “Motion”). Horizon House submits this Brief in Support of the Motion for Summary Judgment of Defendant Horizon House, Inc. II. PROCEDURAL HISTORY On or about September 16, 2015, Plaintiff filed a Charge of Discrimination against Horizon House with the Pennsylvania Human Relations Commission (“PHRC”), which was dual filed with the Equal Employment Opportunity Commission (“EEOC”). On September 6, 2016, the EEOC issued a Notice of Right to Sue. Then, on October 3, 2016, Plaintiff filed his Complaint in the this Court alleging various claims for unlawful discrimination and retaliation arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“Section 1981”), the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq. (the “PHRA), and presumably, although not specifically cited, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”). More specifically, the Complaint contained three causes of action for (i) national origin discrimination, (ii) age discrimination, and (iii) retaliation. At the request of Plaintiff, and by stipulation of both Case 2:16-cv-05233-WB Document 13-1 Filed 05/03/17 Page 6 of 15 3 parties, the national origin and age discrimination claims were dismissed. The only remaining claim in this litigation is for retaliation. This claim fails as a matter of law. III. STATEMENT OF FACTS The facts are set forth in the Defendant’s Statement of Undisputed Facts, and are incorporated herein by reference. IV. LEGAL ARGUMENT A. Legal Standard for Grant of Summary Judgment Summary judgment is appropriate where no genuine disputes of material fact exist, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Summary judgment is properly entered against “the party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “To be a genuine issue, the evidence must be ‘such that a reasonable jury could return a verdict for the non-moving party.’” Edwards v. Pennsylvania Tpk. Comm’n, 80 Fed. App’x 261, 263 (3d Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). To defeat a motion for summary judgment, the non-moving party must “do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Therefore, the party opposing summary judgment “must present more than just ‘bare assertions, conclusory allegations or suspicions’ to show the existence of a genuine issue.” Podonik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex, 477 U.S. at 325). See also Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (explaining that the non-moving party must raise “more than a mere scintilla of evidence in its favor, and cannot simply reassert factually Case 2:16-cv-05233-WB Document 13-1 Filed 05/03/17 Page 7 of 15 4 unsupported allegations contained in its pleadings”). The non-moving party “must present affirmative evidence in order to defeat a properly supported motion for summary judgment.” Williams, 891 F.2d at 460 (quoting Anderson, 477 U.S. at 256-57). “If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50. Moreover, a plaintiff cannot create an issue of fact by misstating or misrepresenting the evidence. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., 690 F.2d 1235, 1238 (9th Cir. 1982). Specifically, “a party cannot manufacture a genuine issue of material fact merely by making assertions in its legal memoranda.” Id. When the non- moving party bears the burden of proof at trial, the moving party can demonstrate that there is no genuine issue of material fact by “pointing out to the district court that there is an absence of evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325. Likewise, a plaintiff’s reliance on his testimony alone is insufficient to establish a material issue of fact and overcome a motion for summary judgment. See Solomon v. Soc’y of Auto. Eng’rs, 41 Fed. App’x 585, 586 (3d Cir. 2002) (affirming that the plaintiff’s reliance on his own testimony alone was insufficient to establish a material issue of fact and overcome the defendant’s motion for summary judgment). Consequently, summary judgment in favor of the defendant is appropriate where a plaintiff fails to offer any evidence, beyond his or her own testimony, to support his or her claims. See Jones v. School Dist. of Philadelphia, 198 F.3d 403, 414 (3d Cir. 1999) (deeming unsupported allegations based solely on plaintiff’s beliefs without having actual knowledge to be irrelevant); Markham v. Reish, No. 08-cv-2222, 2010 U.S. Dist. LEXIS 63846, at *14-15 (M.D. Pa. June 25, 2010) (holding that summary judgment was appropriate because the record contained no evidence supporting plaintiff’s allegations “beyond [p]laintiff’s own testimony”); Fusco v. Bucks Cnty., No. 08-2082, 2009 U.S. Dist. Case 2:16-cv-05233-WB Document 13-1 Filed 05/03/17 Page 8 of 15 5 LEXIS 118924, at *30 (E.D. Pa. Dec. 21, 2009) (holding that summary judgment was appropriate where plaintiff offered “no support, beyond her own testimony, to corroborate her claims”); Chiaradonna v. Rosemont Coll., No. 06-CV-1015, 2008 U.S. Dist. LEXIS 7476, at *11-12 (E.D. Pa. Feb. 1, 2008) (holding that plaintiff could not establish that another employee was similarly situated because he had presented no evidence apart from his own testimony). B. Summary Judgment Should Be Granted Because Plaintiff Failed to Establish Retaliation Under the McDonnell Douglas Burden-Shifting Framework Summary judgment should be granted in favor of Defendant because Plaintiff has failed to establish a case of retaliation. When considering retaliation claims, the Court applies the three-part burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Walton v. Mental Health Ass’n of Southeastern PA, 168 F.3d 661, 666 (3d Cir. 1999); DeMaio v. Bed, Bath & Beyond of King of Prussia, Inc., No. 2:03-CV-5957, 2005 U.S. Dist. LEXIS 43104, at *8 n.1 (E.D. Pa. Jan. 25, 2005) (noting that “[t]he Pennsylvania Supreme Court has adopted the McDonnell Douglas framework for analysis of PHRA claims); Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005) (explaining that retaliation claims typically proceed under the McDonnell Douglas framework). Therefore, Plaintiff’s claims are subject to the three- part burden-shifting analysis outlined in McDonnell Douglas. The first prong of the three-part analysis is a determination of whether the plaintiff has met his initial obligation to establish a prima facie case of retaliation. Jones, 198 F.3d at 410. If a plaintiff fails to establish a prima facie case, the Court can dispose of the case “without the heavy lifting that is required if a prima facie case is made out.” Dorsey v. Pittsburgh Assocs., 90 Fed. App’x 636, 639 (3d Cir. 2004). Therefore, summary judgment in favor of Defendant is appropriate where, as is the case here, Plaintiff has failed to establish a prima facie case of retaliation. Law v. Garden State Tanning, 159 F. Supp. 2d 787, 794 (E.D. Pa. 2001). Case 2:16-cv-05233-WB Document 13-1 Filed 05/03/17 Page 9 of 15 6 1. Plaintiff Has Failed to Establish a Prima Facie Case of Retaliation To state a prima facie case of retaliation, Plaintiff must demonstrate that: (1) he engaged in a protected activity; (2) defendant reacted adversely; and (3) there was a causal link between the protected activity and the adverse action. Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 286 (3d Cir. 2001). If he can do so, the burden shifts to the employer to articulate the legitimate, non-discriminatory reason for its conduct. Id. Plaintiff cannot establish any elements of his prima facie case of retaliation. Plaintiff did not engage in protected activity. Indeed, Plaintiff does not even allege he engaged in protected activity. Defendant’s Statement of Undisputed Facts (hereinafter “SOF”) at ¶ 54. To the extent Plaintiff contends that hiring an attorney to manage an internal, discretionary company grievance, which by his own admission was unrelated to any unlawful conduct by Horizon House, is protected activity, he is wrong. Title VII’s opposition clause makes it “unlawful … for an employer to discriminate against any … employe[e] … because he has opposed any practice made … unlawful … by this subchapter.” § 2000e-3(a). See Crawford v. Metro. Gov’t of Nashville & Daudsin Cnty, Tenn., 555 U.S. 271, 274, 276 (2009) (defining protected activity covered under Title VII retaliation). The EEOC guidelines further provide that “[w]hen an employee communicates to [his] employer a belief that the employer has engaged in ... a form of employment discrimination, that communication … constitutes the employee’s opposition to the activity.” EEOC COMPLIANCE MANUAL §§ 8-II-B(1), (2), p. 614:0003 (Mar. 2003). The April 17, 2015 letter from Plaintiff’s attorney to Horizon House expressly states that Horizon House did not engage in any unlawful practice. SOF at ¶ 37. It follows logically, then, that what was being grieved was the perceived “unfair” and “heartless” discharge of Plaintiff for his failing to take a required training course, Case 2:16-cv-05233-WB Document 13-1 Filed 05/03/17 Page 10 of 15 7 rather than any unlawful action carried out by Horizon House. See April 17, 2015 Letter at Joint Appendix 035-036. This is not protected activity. See also Abramson, 260 F.3d at 288 (defining protected activity under the ADEA, as analogous to Title VII’s opposition clause, and explaining that acceptable forms of protected activity include formal charges of discrimination “as well as informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or society in general, and expressing support of co-workers who have filed formal charges”) (citing Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-702 (3d Cir. 1995) (internal citations omitted)). Plaintiff’s Complaint does not allege protected activity. SOF at ¶ 52. Plaintiff’s interrogatory responses do not allege protected activity. SOF at ¶ 54. Plaintiff’s deposition testimony does not allege protected activity. SOF at ¶ 53. The facts are clear. Plaintiff was terminated on April 8, 2015 for failing to take the required IDC training. SOF at ¶ 33. Plaintiff admits that he failed to take the required IDC training. SOF at ¶ 36. Plaintiff’s attorney sent Horizon House a letter wherein he acknowledges that Plaintiff’s discharge was not unlawful, just “heartless.” See April 17, 2015 Letter at Joint Appendix 035-036. To be sure, heartless is not a recognized legal standard, at least not one relevant to Plaintiff’s claim. Mr. Joyner responded by letter, e-mail, and telephone to inform Plaintiff of the proper grievance procedures and that external parties are not permitted to participate. SOF at ¶¶ 39-40, 44-46. Plaintiff ignored these warnings and proceeded with counsel. Plaintiff’s attorney sent Horizon House another correspondence on April 23, 2015. SOF at ¶ 47. As a result, on April 29, 2015, Mr. Joyner, consistent with company policy, closed Case 2:16-cv-05233-WB Document 13-1 Filed 05/03/17 Page 11 of 15 8 the grievance. SOF at ¶ 48. These facts are not disputed, and Plaintiff cannot reasonably argue that these facts rise to the level of unlawful action by Horizon House. Because Plaintiff did not engage in protected activity, there was nothing to which Horizon House could have possibly reacted adversely. Further, there can be no causal link between the termination of Plaintiff’s employment and protected activity, because no protected activity took place. As a result of the foregoing, Plaintiff cannot establish a prima facie case of retaliation, and, therefore, Defendant is entitled to summary judgment in its favor. C. Horizon House Has Fulfilled Its Burden of Showing a Nondiscriminatory Reason For Its Actions Because Plaintiff has failed to satisfy his burden of establishing a prima facie case of retaliation, the Court need not even consider the remaining prongs of the McDonnell Douglas framework. Nevertheless, under the burden shifting standard, Defendant can articulate a legitimate, nondiscriminatory reason for its action pursuant to the second prong of the McDonnell Douglas analysis. McDonnell Douglas, 411 U.S. at 802. The employer satisfies its “relatively light burden” by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision. Id. at 763. The undisputed evidence clearly demonstrates that Horizon House, acting through Mr. Joyner, dismissed the grievance because Plaintiff, despite multiple warnings, insisted on violating company policy. D. Summary Judgment Should be Granted Because Plaintiff Cannot Establish That Horizon House’s Legitimate, Nondiscriminatory Reason Is Pretextual or That Horizon House Possessed Discriminatory Intent After a defendant meets its burden under the second prong of the McDonnell Douglas framework, the third and final prong of the analysis shifts the burden back to the plaintiff, “who Case 2:16-cv-05233-WB Document 13-1 Filed 05/03/17 Page 12 of 15 9 must now show by a preponderance of the evidence that the employer’s explanation is pretextual.” Fuentes v. Perksie, 32 F.3d 759, 763 (3d Cir. 1994); see also McDonnell Douglas, 411 U.S. at 804. “[T]he plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either: (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Fuentes, 32 F.3d at 764. Plaintiff cannot challenge Horizon House’s legitimate, nondiscriminatory reasons for its employment decision by simply arguing that the decision “was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent.” Jones, 198 F.3d at 413 (quoting Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997)). See also Brewer v. Quaker State Oil Rf. Corp., 72 F.3d 326, 332 (3d Cir. 1995) (“We do not sit as a super-personnel department that reexamines an entity’s business decisions.” (internal citation omitted)). Further, Plaintiff cannot survive summary judgment by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams, 891 F.2d at 460; see also Choe-Rively v. Vietnam Veterans of America Chapter 83, 135 F. Supp. 2d 462, 474-75 (D. Del. 2001) (finding that plaintiff’s unsupported speculation that employer acted with discriminatory animus was insufficient to defeat summary judgment). Rather, Plaintiff “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable factfinder could rationally find them ‘unworthy of credence.’” Fuentes, 32 F.3d at 765 (quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992)). “Pretext means a dishonest explanation, a lie rather than an oddity or an error.” Hill v. Potter, No. 07 CV 6835, 2009 U.S. Dist. LEXIS Case 2:16-cv-05233-WB Document 13-1 Filed 05/03/17 Page 13 of 15 10 50681, at *22 (N.D. Ill. June 16, 2009) (quoting Hague v. Thompson Distrib. Co., 436 F.3d 816, 823 (7th Cir. 2006) (internal quotations omitted)). Under the third prong of the McDonnell Douglas analysis, Plaintiff must demonstrate that Horizon House’s articulated legitimate reasons are pretextual. Fuentes, 32 F.3d at 764. Plaintiff has failed, however, to produce any evidence that shows that Horizon House’s articulated legitimate reasons for ending the grievance process are pretextual or that Defendant should be disbelieved. Thus, Plaintiff cannot show pretext. In other words, Plaintiff has failed to “demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable factfinder could rationally find them unworthy of credence.” Jones, 198 F.3d at 413. In addition, Plaintiff must demonstrate not only that Horizon House’s reasons are not the true reasons for its employment action, but also that Horizon House had the intent to discriminate. Fuentes, 32 F.3d at 764; Sheridan v. E.I. Dupont de Nemours and Co., 100 F.3d 1061, 1070 (3d Cir. 1996). Even where the employee has proven “the existence of a crusade to terminate” that employee, he must also demonstrate that the crusade was motivated by discrimination. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 508 (1993) (internal quotations omitted). Plaintiff has offered no evidence whatsoever, not even the usual conclusory threadbare allegations, of an intent to retaliate against him. Such unsubstantiated claims are, in and of themselves, insufficient to survive a motion for summary judgment. See Solomon, 41 Fed. App’x at 586. Under the third prong of the McDonnell Douglas framework, Plaintiff has failed to establish the existence of any evidence that would suggest that Horizon House’s reasoning regarding the dismissal of his grievance process was fabricated or that Horizon House intended Case 2:16-cv-05233-WB Document 13-1 Filed 05/03/17 Page 14 of 15 11 to retaliate against Plaintiff in any way. As a result, Plaintiff has failed to carry his burden under McDonnell Douglas and, accordingly, Horizon House is entitled to judgment in its favor. V. CONCLUSION As a result of foregoing, Defendant Horizon House, Inc. is entitled to Summary Judgment. FISHER & PHILLIPS LLP Date: May 3, 2017 By: /Chad A. Flores Todd Alan Ewan, Esquire Chad A. Flores, Esquire 150 N. Radnor Chester Road, Suite C300 Radnor, PA 19087 (610) 230-2150 (phone) tewan@fisherphillips.com cflores@fisherphillips.com Attorneys for Defendant Horizon House, Inc. Case 2:16-cv-05233-WB Document 13-1 Filed 05/03/17 Page 15 of 15 STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF THE MOTION OF DEFENDANT HORIZON HOUSE, INC. FOR SUMMARY JUDGMENT The undisputed facts relevant to the Motion for Summary Judgment of Defendant Horizon House, Inc. (“Defendant” or “Horizon House”), are as follows: Horizon House is a Well-Respected Community Based Non-Profit 1. Horizon House is a Pennsylvania non-profit corporation serving Eastern Pennsylvania and Delaware, and operating as a resource within the community to adults with psychiatric or developmental disabilities, drug and alcohol addictions, and/or homelessness, by providing a continuum of services, support, and community resource coordination. See Verified Statement of Yusef Joyner (“Joyner Statement”) at ¶ 3, a true and correct copy of the Joyner Statement is attached hereto at Joint Appendix 087-088. 2. Horizon House provides housing, treatment services, and rehabilitation services to these individuals. Id. at ¶ 4. 3. Horizon House maintains a strict policy prohibiting discrimination and retaliation in the workplace on the basis of, inter alia, national origin and age. See Horizon House’s Employee Handbook (the “Employee Handbook”), a true and correct copy of the relevant portions of which is attached hereto at Joint Appendix 001-003; 010-013. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA FRANK SANNOH, : : Plaintiff, : : CASE NO.: 2:16-CV-05233-WB v. : HORIZON HOUSE, INC., : : : Defendant. : Case 2:16-cv-05233-WB Document 13-2 Filed 05/03/17 Page 1 of 10 2 4. Horizon House’s Equal Employment Opportunity Policy specifically states that “Horizon House will not unlawfully consider an individual’s membership in any protected group . . . with regard to: . . . discipline, and discharge.” Id. 5. All Horizon House employees, including Plaintiff, receive a copy of the Employee Handbook and other policies setting forth, among other items, the Equal Employment Opportunity Policy. See Sannoh Employee Handbook Acknowledgement Signature Pages attached hereto at Joint Appendix 014-018. Plaintiff was Subject to Mandatory Training Requirements at Horizon House 6. Horizon House hired Plaintiff on April 9, 2001 as a Residential Advisor. See Plaintiff’s Offer Letter, true and correct copy of which is attached hereto at Joint Appendix 019- 021. 7. As a Horizon House employee, Plaintiff was required to take a minimum of twenty-four hours of training per year and six hours of training per quarter. Id. 8. For Plaintiff to meet his yearly training requirement, he was required to take infectious disease control (“IDC”) training. Id.; March 16, 2017 Deposition of Frank Sannoh (hereinafter “Sannoh Deposition”), pp. 62:2-23; 72:16-73:5 at Joint Appendix 061-069. 9. Horizon House specifically and periodically notified Plaintiff about his various training requirements. Joint Appendix 019-021. 10. On April 10, 2001, Plaintiff received and acknowledged Horizon House’s “Communicable Diseases: Managing and Reporting Memorandum,” which also outlined the required infectious disease training. A true and correct copy of the Memorandum and Plaintiff’s Acknowledgement is attached hereto at Joint Appendix 022-024. Case 2:16-cv-05233-WB Document 13-2 Filed 05/03/17 Page 2 of 10 3 11. On August 16, 2013, the President and Chief Executive Officer of Horizon House sent a letter to all Horizon House employees , including Plaintiff, entitled “Important Changes Affecting All Employees: Infectious Disease Control (IDC) Training” (“IDC Letter”), along with a memorandum entitled “How to take Infectious Disease Control (IDC)” (“IDC Memo”). A true and correct copy of the IDC Letter and IDC Memo attached hereto at Joint Appendix 025- 026. 12. In the IDC Letter, the President and Chief Executive Officer reminded employees about the requirement of the Occupational Safety and Health Administration (“OSHA”) that staff take mandatory safety training on infectious diseases upon hire, and annually thereafter. Id. 13. Further, in the IDC Letter, the President and Chief Executive Officer stated: OSHA requires that staff take safety training on infectious diseases and bloodborne pathogens upon hire and annually thereafter, and they have been increasing their efforts to enforce this standard. While this has long been an Agency requirement, it has been an area where we have struggled at maintaining compliance. This cannot continue. Consequently, we must take a much stronger approach to ensuring compliance than we have taken in the past. Quite simply, employees who are not in compliance can and will not be permitted to work. Id. (emphasis in original). 14. While IDC training had always been a requirement at Horizon House, Horizon House reminded its employees that it would be taking a much stronger approach to ensuring compliance than it had taken in the past. Id.; Sannoh Deposition, pp. 72:16-73:5 at Joint Appendix 061-069. 15. The IDC Memo outlined the three ways in which employees could meet their required IDC training: (1) IDC training class offered twice a month; (2) online training; and (3) adjunct training. Joint Appendix 025-026. Case 2:16-cv-05233-WB Document 13-2 Filed 05/03/17 Page 3 of 10 4 Plaintiff Failed to Take Mandatory IDC Training in 2015 16. It is each employee’s responsibility to ensure his or her compliance with the training requirements, including the annual IDC training requirement. Sannoh Deposition, pp. 61:21-62:1; 127:16-19 at Joint Appendix 061-069; March 24, 2017 Deposition of Kimberly Brown (hereinafter “Brown Deposition”), pp. 27:11-24; 43:19-44:8 at Joint Appendix 078-81; March 24, 2017 Deposition of Elonda Drayton (hereinafter “Drayton Deposition”), p. 98:2-7 at Joint Appendix 082-086. 17. Plaintiff admits that it was his responsibility: Q. Whether they notify you or not, if you don’t take the training, you’re not going to have a job. So that’s your – if you want your job then it’s your responsibility to know that. Isn’t it? A. Yes. June 5, 2015 Unemployment Compensation Hearing Transcript at p. 18, a true and correct copy of the relevant portions of which is attached hereto at Joint Appendix 059-060. 18. On January 26, 2015, Horizon House’s Office of Organization and Employee Development (“OED”) sent a notice to Plaintiff entitled “ORIGINAL NOTICE – IDC Refresher Training – IMPORTANT” (“Original Notice”) and attached the IDC Memo. A true and correct copy of the Original Notice is attached hereto at Joint Appendix 027-028. 19. In the Original Notice, OED reminded Plaintiff that the IDC training is mandatory, that the last time he took the IDC training was March 12, 2014, and that he had to complete the IDC training by no later than March 12, 2015. Id. 20. In the Original Notice, it was emphasized that, “[i]f you do not complete the training within the period specified, you will be out of compliance and this may result in Case 2:16-cv-05233-WB Document 13-2 Filed 05/03/17 Page 4 of 10 5 disciplinary action up to an including unpaid suspension. Repeated violations could result in termination.” Id. 21. Despite the Original Notice, Plaintiff did not complete the required IDC training in 2015. March 24, 2017 Deposition of Yusef Joyner (hereinafter “Joyner Deposition”), p. 27:17-20 at Joint Appendix 070-077. 22. On February 1, 2015, OED sent a second notice to Plaintiff entitled “REMINDER –NOTICE – IDC Refresher Training – IMPORTANT” (“Second Notice”) and again attached the IDC Memo. A true and correct copy of the Second Notice is attached hereto at Joint Appendix 029-030. 23. In the Second Notice, it was emphasized that, “if you do not complete the training within the period specified, you will be out of compliance and we will have no other recourse but to place you on an unpaid suspension for a minimum of one day. Continued failure to take this training will result in further disciplinary action up to and including termination.” Id. 24. Plaintiff had until March 12, 2015 to complete the mandatory training. Id. 25. Despite the Second Notice, Plaintiff still did not complete the required IDC training in 2015. Joyner Deposition, p. 27:17-20 at Joint Appendix 070-077. 26. A staff meeting was held by Plaintiff’s supervisor, Elonda Drayton, on March 19, 2015, during which Ms. Drayton discussed with the attendees the required training and how to register for both live and online courses. Drayton Deposition, pp. 31:7-16; 34:11-36:12 at Joint Appendix 082-086. 27. Indeed, Plaintiff attended this March 19, 2015 staff meeting. A true and correct copy the Sign-In Sheet is attached hereto at Joint Appendix 031; Sannoh Deposition, pp. 84:6- 85:3 at Joint Appendix 061-069. Case 2:16-cv-05233-WB Document 13-2 Filed 05/03/17 Page 5 of 10 6 28. During the March 19, 2015 staff meeting, Ms. Drayton displayed on a bulletin board all outstanding training requirements for the employees she supervised, including Plaintiff. A true and correct copy of a picture of the staff meeting bulletin board is attached hereto at Joint Appendix 032. 29. Despite being sent the Original Notice, the Second Notice, and attending the March 19, 2015 staff meeting, Plaintiff still failed to take the mandatory IDC training in 2015. Joyner Deposition, p. 27:17-20 at Joint Appendix 070-077. 30. Because of Plaintiff’s continued failure to take the required IDC training, Horizon House sent a letter to Plaintiff notifying him that he was being placed on unpaid suspension starting March 31, 2015. A true and correct copy of the Suspension Letter is attached hereto at Joint Appendix 033. 31. Horizon House gave Plaintiff five days to complete the required IDC training and noted that failure to complete the required training would result in Plaintiff’s employment being “discontinued as a voluntary resignation of [his] position.” Id. 32. Plaintiff, nevertheless, still failed to take the required IDC training in 2015. Joyner Deposition, p. 27:17-20 at Joint Appendix 070-077. 33. Therefore, on April 13, 2015, Horizon House sent Plaintiff a letter outlining his failure to complete the mandatory training and accepting Plaintiff’s voluntary resignation effective April 8, 2015. A true and correct copy of the Separation Letter is attached hereto at Joint Appendix 034. Plaintiff Refused to Follow Formal Horizon House Grievance Procedures 34. On April 17, 2015, Plaintiff’s attorney, Gerald Pomerantz, sent a letter to Horizon House wherein he asks Horizon House to (1) investigate Plaintiff’s separation of employment Case 2:16-cv-05233-WB Document 13-2 Filed 05/03/17 Page 6 of 10 7 and (2) reinstatement Plaintiff. A true and correct copy of the April 17, 2015 Attorney Correspondence is attached hereto at Joint Appendix 035-036. 35. Plaintiff admits that he was “an employee at will, and regardless of performance or mistake even by the employer he [could] be discharged.” Id. 36. Plaintiff also admits that he failed to take the required IDC course. Id. 37. With respect to his separation of employment, Plaintiff further admits that “[a]ll of [Horizon House’s] actions on their face, although harsh, appear to be permissible under employment law.” Id. 38. Also on April 17, 2015, Plaintiff left a voicemail with Yusef Joyner, Vice President of Human Resources at Horizon House. Joyner Deposition, p. 78:16-19 at Joint Appendix 070-077; Joyner Statement, ¶ 5 at Joint Appendix 087-088. 39. On April 20, 2015, Mr. Joyner sent a letter to Plaintiff reminding him of Horizon House’s grievance process, letting him know that the grievance process is confidential, and that external parties would not be permitted to participate. A true and correct copy of the April 20, 2015 Letter is attached hereto at Joint Appendix 037-041. 40. Mr. Joyner also attached Horizon House’s grievance procedures to the April 20, 2015 Letter. Id. 41. Horizon House has a formal, confidential grievance process to ensure that all complaints are heard in a fair and unbiased manner. Id. 42. Specifically, discharge actions are appealed by requesting a review in writing, and initiating a formal grievance process by writing to the Director of Human Resources within ten (10) working days of the separation. Id. Case 2:16-cv-05233-WB Document 13-2 Filed 05/03/17 Page 7 of 10 8 43. Third parties are prohibited from participating in the grievance process. Joyner Deposition, pp. 25:18-26:7; 28:23-29:5 at Joint Appendix 070-077. 44. On April 21, 2015, Plaintiff called and spoke to Mr. Joyner’s executive assistant, Sophia Bellmon, about the grievance process and the April 17, 2017 letter from his attorney. Joyner Statement, ¶ 6 at Joint Appendix 087-088. 45. Mr. Joyner and Plaintiff then had a telephone conversation on April 22, 2015, during which Mr. Joyner explained the grievance process to Plaintiff in detail, and reminded Plaintiff that external parties, including attorneys, are not permitted to participate in the grievance process: Q. By the end of this phone conversation that you had with Mr. Sannoh, at that point, how many times did you communicate to Mr. Sannoh that no external parties are to be involved in the grievance process? A. More than once. But, that was the focus of the conversation, that we could not accept what had been received to date. That if he wanted a grievance, this was the way to go forward. Joyner Deposition, pp. 80:16-81:3 at Joint Appendix 070-077; Joyner Statement, ¶ 7 at Joint Appendix 087-088. 46. Also on April 22, 2015, Mr. Joyner instructed Ms. Bellmon to e-mail Plaintiff, at his personal email address, a copy of the April 20, 2015 Letter. A true and correct copy of the April 22, 2015 E-mail is attached hereto at Joint Appendix 042-044; Joyner Statement, ¶ 9 at Joint Appendix 087-088. 47. Notwithstanding the multiple warnings that the grievance process could not proceed with external parties, Plaintiff’s counsel sent yet another communication to Horizon House on April 23, 2015, wherein he acknowledged the grievance process but still requested Case 2:16-cv-05233-WB Document 13-2 Filed 05/03/17 Page 8 of 10 9 immediate reinstatement. A true and correct copy of the April 23, 2015 Attorney E-mail Correspondence is attached hereto at Joint Appendix 045. 48. On April 29, 2015, following multiple attempts by Plaintiff’s attorney to participate in the grievance process, and expressly because of his attorney’s involvement, Mr. Joyner decided to close the grievance and notified Plaintiff of the same by letter. A true and correct copy of the April 29, 2015 Grievance Letter is attached hereto at Joint Appendix 046- 047. 49. The next day, Plaintiff e-mailed Mr. Joyner protesting the decision to close the grievance process, falsely stating that he was never informed that external parties could not participate, and again indicating his willingness to proceed without an attorney. A true and correct copy of Plaintiff’s April 30, 2015 E-mail is attached hereto at Joint Appendix 048. 50. Notwithstanding the representations in his April 30, 2015 E-Mail to Mr. Joyner, Plaintiff forwarded the e-mail to his attorney, Mr. Pomerantz. A true and correct copy of the April 30, 2015 E-mail from Plaintiff to Mr. Pomerantz is attached hereto at Joint Appendix 049. 51. Despite Mr. Pomerantz’s April 23, 2015 e-mail representation, and Plaintiff’s April 30, 2015 representations, Mr. Pomerantz again contacted Horizon House via e-mail on April 30, 2015. A true and correct copy of Mr. Pomerantz’s April 30, 2015 E-mail is attached hereto at Joint Appendix 050. Plaintiff Asserts Baseless Retaliation Claim 52. Plaintiff’s Complaint alleges only that Horizon House retaliated against Plaintiff because Plaintiff hired an attorney to help with the grievance process. See Plaintiff’s Complaint at ¶¶ 33-37. Case 2:16-cv-05233-WB Document 13-2 Filed 05/03/17 Page 9 of 10 10 53. During Plaintiff’s deposition, when asked how he was a victim of retaliation, Plaintiff responded: A. Because when I hired the services of the attorney, he submitted a letter to Horizon House. And then Yusef said I needed to grieve the case. So my attorney immediately informed them that he will withdraw himself from the case. I told him that if that is the case, I don’t need an attorney. I will grieve the case by myself. I don’t need any of his support again. And then I wrote them. Yusef still insisted that he was not – the case has been closed. They’re not going to allow that because I have involvement. So I feel that was retaliation. Sannoh Deposition, p. 40:1-19 at Joint Appendix 061-069. 54. In his interrogatory responses, Plaintiff repeats this belief that his retaliation claim rests solely on the involvement of his attorney, Mr. Pomerantz, in his grievance process. A true and correct copy of Plaintiff’s Answers to Horizon House, Inc.’s First Set of Interrogatories is attached hereto at Joint Appendix 051-058. 55. This forms the entire basis of Plaintiff’s retaliation claim. Id.; Sannoh Deposition, p. 40:1-19 at Joint Appendix 061-069; Plaintiff’s Complaint at ¶¶ 33-37. FISHER & PHILLIPS LLP Date: May 3, 2017 By: /s Chad A. Flores Todd Alan Ewan, Esquire Chad A. Flores, Esquire 150 N. Radnor Chester Road, Suite C300 Radnor, PA 19087 (610) 230-2150 (phone) tewan@fisherphillips.com cflores@fisherphillips.com Attorneys for Defendant Horizon House, Inc. Case 2:16-cv-05233-WB Document 13-2 Filed 05/03/17 Page 10 of 10 1 AND NOW, upon consideration of the Motion for Summary Judgment of Defendant Horizon House, Inc. (the “Motion”), all briefs and exhibits filed in support of the Motion, and all responses thereto, this Court hereby ORDERS the following: 1. The Motion for Summary Judgment of Defendant Horizon House, Inc. is GRANTED; and 2. Judgment shall be entered against Plaintiff Frank Sannoh and in favor of Defendant Horizon House, Inc., on the sole remaining count of Plaintiff’s Complaint. BY THE COURT: _______________________________ Wendy Beetlestone, U.S.D.J. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA FRANK SANNOH, : : Plaintiff, : : CASE NO.: 2:16-CV-05233-WB v. : HORIZON HOUSE, INC., : : : Defendant. : Case 2:16-cv-05233-WB Document 13-3 Filed 05/03/17 Page 1 of 1