# CANADA v. SAMUEL GROSSI & SONS, INC.

> District Court, E.D. Pennsylvania · August 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10399423

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** August 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10399423

## How later opinions describe it (automated extraction)

- affirming grant of summary judgment on hostile work environment on the basis that the use of the word “nigger,” one physical push, and one threat to sabotage plaintiff’s work record were “isolated and sporadic incidents” and did not demonstrate a pervasive atmosphere of harass…
- applying McDonnell Douglas to FMLA retaliation claim

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSEPH CANADA, CIVIL ACTION
Plaintiff,

v.

SAMUEL GROSSI & SONS, INC., NO. 19-1790
Defendant.

DuBois, J. July 31, 2020
M E M O R A N D U M

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

1 The facts are presented in the light most favorable to plaintiff. Disputed facts are noted as such.
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

2 The parties dispute whether Beck was plaintiff’s supervisor.
3 Plaintiff used the actual racial slur in his testimony. E.g. Canada Dep. 93:2-8. Where possible, the Court
will not repeat this slur.
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-

4 Plaintiff disputes the “legitimacy” of the final verbal warning that was produced by defendant and
insinuates that it was altered. Pl.’s SUMF ¶¶ 215-16 (“[T]he entire details of behavior section is whited out, with
new writing in a different, lighter pen color, outlining an incident between Carlberg and Mr. Canada.”).
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 “it [didn’t] say anything about [plaintiff’s] previous issue” and “the
doctor that wrote [the second note didn’t] have the medical history to approve this.” Id. As a
consequence, defendant refused to allow plaintiff to “bump” into the paint shop. Def.’s SUMF
¶¶ 37, 43.
Defendant claims that plaintiff was temporarily laid off because he could not “bump” into
a different position. Id. ¶ 39. Several Caucasian employees were also laid off. Id. After being
laid off for one day, plaintiff returned to work as a Material Handler. Id. ¶ 47. “When he
returned to work in the Material Handler position, Canada was paid the same pay rate, had all the

same benefits, worked the same hours, had the same opportunities for advancement.” Id. ¶ 51.
“After several weeks, when the work increased again, Canada was able to move back into the
Machine Operator role.” Id. ¶ 52.
E. Plaintiff’s Termination
Plaintiff’s termination was based on text messages which were found on a cellphone in a
locker on defendant’s shop floor. See id. at ¶ 74; John Grossi Dep. 68:17-19. Grossi
“employees[, including plaintiff,] are given their own personal lockers in a private locker room
where they keep their personal belongings, including their ‘street clothes.’” Def.’s SUMF ¶ 57;
Canada Dep. 165:16-18. In addition, “[o]n Defendant’s shop floor, there are lockers located by
employee work stations.” Pl.’s SUMF ¶ 167. Defendant describes the lockers on the shop floor
as “tool locker[s],” where company tools are kept and shared among employees. Def.’s SUMF
¶¶ 58-60; Beck Dep. 33:20-21. These lockers on the shop floor were approximately “three foot
by five foot;” a forklift or a crane was used when they had to be moved. Def.’s SUMF ¶ 64;

Beck Dep. 34:17-18. Beck described the lockers on the shop floor as “permanent fixtures.”
Beck Dep. 34:7-11.
Plaintiff contends that the lockers on the shop floor “were not considered ‘tool lockers’”
and that Grossi did not have company tools. Pl.’s SUMF ¶ 168; Canada Dep. 172:5-21.
According to plaintiff, he used a locker on the shop floor to store his personal tools, clothes,
union paperwork, and a Samsung cellphone. Pl.’s SUMF ¶ 176; Canada Dep. 172:5-21.
Plaintiff testified he was the only person who used that locker and other employees knew that he
was the only person who used that locker. Pl.’s SUMF ¶¶ 171, 173-74. Plaintiff secured that
locker with his personal lock even though lockers on the shop floor were to be secured with a
lock supplied by Grossi. Id. ¶ 174; Beck Dep. 35:21-36:1.

On July 31, 2019, while plaintiff was on vacation, the locker on the shop floor plaintiff
was using had to be moved because it was blocking the view of a surveillance camera in that area
of the shop floor. Def.’s SUMF ¶ 63. A Grossi employee cut the lock on the shop floor locker
used by plaintiff in order to remove the items inside the locker before moving it. Def.’s SUMF
¶ 66; Pl.’s SUMF ¶ 178. Osorio testified that after the lock was cut, she and another employee
removed various items from the locker including “company tools,5 sweaters, . . . FMLA books,
envelopes for the union, paper towels, and a cellphone.” Osorio Dep. 104:11-15. Osorio said
she believed the cellphone found in the locker was a company cellphone because Grossi had

5 Plaintiff disputes that Osorio found company tools in the shop floor locker. Pl.’s Resp. Def.’s SUMF ¶ 67.
multiple phones go missing in the past and “[b]ecause it’s a Samsung” and other employees were
issued Samsung cellphones by Grossi. Osorio Dep. 26:2-20, 105:11-106:14. Osorio Dep.
105:11-23. It turned out that the cellphone found by Osorio belonged to plaintiff. Pl.’s SUMF
¶ 178. Plaintiff’s cellphone was locked, but Osorio unlocked it on her first attempt. Id. 107:8-

18. Later, she and John Grossi searched plaintiff’s cellphone to “find out if it was a company
phone.” Def.’s SUMF ¶ 71; Osorio Dep. 108:17-19, 109:13-17.
Searches of employee’s property were governed by Grossi’s Employee Handbook, which
stated:
The Company may conduct inspections and searches on Company
premises, including both Company property and property under the
Company’s control, and employees’ personal property. The
purpose of these inspections and searches are to prevent the
unauthorized possession and use of drugs, alcohol, weapons, and
harmful materials on Company premises, to prevent the theft and
improper use of company property, and to ensure that the
Company has access to its property at all times. Inspections and
searches may be conducted when the Company has reasonable
suspicion that an individual is involved in misconduct on Company
premises. The inspections and searches may be with or without
notice.
All areas of the Company’s premises may be inspected and
searched. This includes, but is not limited to, offices, desks,
closets, lockers, cabinets, files, computer files and documents. The
Company may also inspect and search employees’ personal
property. This includes, but is not limited to, packages that
employees may bring to or remove from the workplace. To prevent
losses and to reduce the need for these searches, employees are
discouraged from bringing unnecessary personal items to the
workplace.

Def. Ex. B at Grossi 00452.
Osorio testified that she does not remember whether “there was any reason to suspect that
[plaintiff] was involved in any type of misconduct on company premises before his separation.”
Osorio Dep. 39:18-22. Thompson testified that, prior to plaintiff’s termination, he did not have
any reason to suspect that plaintiff committed any type of misconduct on company premises.
Thompson Dep. 56:16-20.
During their search of plaintiff’s cellphone, Osorio and John Grossi discovered text
messages from plaintiff, in which he appeared to solicit prostitutes and negotiate the price for
various sex acts.6 Def.’s SUMF ¶ 72; Canada Dep. 193:11-193:24 (admitting to negotiating

prices). “Osorio and [John] Grossi compared the text messages to Canada’s time records and
determined [in their opinion] that he had been soliciting prostitutes while at work and clocked
in.” Def.’s SUMF ¶ 73.
Plaintiff’s employment at Grossi was immediately terminated for soliciting prostitutes on
company time in violation of Grossi’s Employee Conduct and Disciplinary Action Policy, which
prohibits: “[u]nlawful conduct which adversely affects the employee’s relationship on his/her
job, fellow employees, supervisor and/or damages the Company’s property, reputation or
goodwill in the community” and “[i]mmoral or indecent conduct.” See id. at ¶ 74; John Grossi
Dep. 68:17-19. Plaintiff denies that he was soliciting prostitutes. Canada Dep. 184:19. He

insists that he never met with any of the women and that it was merely “dumb entertainment”
and “pure entertainment.” Id.185:1-6, 197:20-198:1.
F. Procedural History
On March 8, 2019, plaintiff filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) alleging race and disability discrimination. Pl.’s Ex. R. On
April 25, 2019, plaintiff filed the Complaint in this action and asserted the following claims: race
discrimination, retaliation, and hostile work environment under Title VII of the Civil Rights Act

6 Some examples of plaintiff’s text messages are as follows: on June 22, 2018, plaintiff texted “how much
for unwrapped BJ?” which referred to oral sex without a condom. Canada Dep. 188:18-189: 193:24. The response
was “A hundred.” Id. 189:4-5. Plaintiff replied “Too much. Sorry. I’m good.” Id. 189:6-8. On July 11, 2018,
plaintiff texted a different number asking, “how much for unwrapped BJ?” Id. 191:2-5. The response was “60,” and
plaintiff replied, “Where are you located.” Id.
of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. (Count I); race discrimination, retaliation, and
hostile work environment under 42 U.S.C. § 1981 (Count II); actual and perceived disability
discrimination, retaliation, hostile work environment, and failure to accommodate7 under the
Americans with Disabilities Act (“ADA”) 42 U.S.C. § 12101 et seq. (Count III); retaliation and

unlawful interference under the FMLA 29 U.S.C. § 2601 et seq. (Count IV); unlawful access to
stored communications pursuant to Subchapter C of Pennsylvania’s Wiretapping and Electronic
Surveillance Control Act (“Pennsylvania SCA”) 18 Pa. Cons. Stat. § 5741 et seq. (Count V); and
invasion of privacy (Count VI). On March 13, 2020, defendant moved for summary judgment
on all claims. Plaintiff responded on April 10, 2020. Plaintiff moved for partial summary
judgment on March 13, 2020. Defendant responded on April 10, 2020. Plaintiff filed a Reply in
support of his partial motion for summary judgment on April 16, 2020. The motions are thus
ripe for decision.
III. LEGAL STANDARD
The Court will grant a motion for summary judgment if “the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is
material when it “might affect the outcome of the suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id.

7 In his response to defendant’s motion for summary judgment, plaintiff stated that he “does not intend to
proceed with” his failure to accommodate claim. Pl.’s Opp’n at 4 n.2. Accordingly, the Court grants defendant’s
motion for summary judgment with respect to plaintiff’s failure to accommodate claim under the ADA (Count III)
by agreement. See Campbell v. Jefferson Univ. Physicians, 22 F. Supp. 3d 478, 487 (E.D. Pa. 2014) (“[W]hen a
plaintiff responds to a defendant’s summary judgment motion but fails to address the substance of any challenge to
particular claims, that failure ‘constitutes an abandonment of those causes of action and essentially acts as a waiver
of these issues.””).
The Court’s role at the summary judgment stage “is not . . . to weigh the evidence and
determine the truth of the matter but to determine whether . . . there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249. However,
the existence of a “mere scintilla” of evidence in support of the nonmoving party is insufficient.

Id. In making this determination, “the court is required to examine the evidence of record in the
light most favorable to the party opposing summary judgment[] and resolve all reasonable
inferences in that party’s favor.” Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). The party
opposing summary judgment must, however, identify evidence that supports each element on
which it has the burden of proof. Celotex Corp., 477 U.S. at 322.
IV. DISCUSSION
Defendant moved for summary judgment on all of plaintiff’s claims. Plaintiff moved for
partial summary judgment on his perceived disability discrimination claim under the ADA
(Count III), unlawful access to stored communications claim pursuant to the Pennsylvania SCA
(Count V), and invasion of privacy claim (Count VI). The Court addresses each in turn.

A. Discrimination Under Title VII, § 1981, and the ADA (Counts I, II, and III) and
Retaliation Under Title VII, § 1981, the ADA, and the FMLA (Counts I, II, III, and
IV)

Plaintiff attempts to prove his discrimination claims under Title VII, § 1981, and the
ADA (Counts I, II, and III) and his retaliation claims under Title VII, § 1981, the ADA, and the
FMLA (Counts I, II, III, and IV) using indirect evidence. Pl.’s Resp. at 5-6, 17. Thus, those
claims are analyzed under the under the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Tourtellotte v. Eli Lilly & Co., 636 F. App’x
831, 841 (3d Cir. 2016) (“All retaliation and discrimination claims brought under Title VII . . .
which rely on circumstantial evidence, are controlled by the three-step burden-shifting
framework set forth in McDonnell Douglas.”); Stewart v. Rutgers, The State Univ., 120 F.3d
426, 432 (3d Cir. 1997) (applying McDonnell Douglas to § 1981 racial discrimination claim);
Castleberry v. STI Grp., 863 F.3d 259, 267 (3d Cir. 2017) (applying McDonnell Douglas to
§ 1981 retaliation claim); Jakomas v. City of Pittsburgh, 342 F. Supp. 3d 632, 653 (W.D. Pa.

2018) (“[R]etaliation claims under the ADA are analyzed under the McDonnell Douglas
framework.”) (citing Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006)); Shellenberger v.
Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003) (applying McDonnell Douglas to ADA
retaliation claim); Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir.
2012) (applying McDonnell Douglas to FMLA retaliation claim).
Under the McDonnell Douglas burden-shifting framework, the plaintiff bears the initial
burden of establishing “a prima facie case of discrimination or retaliation.” Tourtellotte, 636 F.
App’x at 842. If the plaintiff establishes a prima facie case, the burden shifts to the defendant to
articulate some legitimate, nondiscriminatory and nonretaliatory reason for the adverse
employment action. See Barker v. Boeing Co., 21 F. Supp. 3d 417, 423 (E.D. Pa. 2014), aff’d,

609 F. App’x 120 (3d Cir. 2015). If such a reason is proffered, the “burden then shifts back to
the plaintiff to prove that the employer’s nonretaliatory or nondiscriminatory explanation is
merely a pretext for the discrimination or retaliation.” Tourtellotte, 636 F. App’x at 842.
“Although the burden of production of evidence shifts, ‘the plaintiff has the ultimate burden of
persuasion at all times.’” Butler v. Arctic Glacier USA, 213 F. Supp. 3d 711, 716 (E.D. Pa.
2016) (quoting Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015)).
i. Prima Facie Case of Discrimination and Retaliation
Assuming arguendo that plaintiff can establish a prima facie case of discrimination under
Title VII,8 § 1981,9 and the ADA,10 and a prima facie case of retaliation under Title VII,11
§ 1981,12 the ADA,13 and the FMLA,14 the Court concludes that plaintiff failed to show that

defendant’s proffered nondiscriminatory and nonretaliatory reason was pretextual.
ii. Legitimate Nondiscriminatory and Nonretaliatory Reason
At the second step of the McDonell Douglas framework, the employer must articulate a
legitimate, nondiscriminatory or nonretaliatory reason for the adverse employment action.
Tourtellotte, 636 F. App’x at 842; Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). As
discussed supra, there are two adverse employment actions at issue in this case: the one-day
layoff in March 2019, and plaintiff’s final termination. See supra Part II. With respect to
plaintiff’s one-day layoff, defendant claims that plaintiff was laid off due to a lack of available

8 “To establish a prima facie case of discrimination under Title VII, a plaintiff must show that he: (1) was a
member of a protected class; (2) was qualified for the position; (3) suffered an adverse employment action; and, (4)
the circumstances of the adverse employment action imply discrimination.” Butler, 213 F. Supp. 3d at 716.
9 To establish a prima facie case of discrimination under § 1981, “a plaintiff must show 1) that he or she
belongs to a racial minority; 2) that he or she was qualified for the position in question; 3) that he or she was
discharged; and 4) that he or she was terminated under circumstances that give rise to an inference of unlawful
discrimination.” Wilson v. Blockbuster, Inc., 571 F. Supp. 2d 641, 647 (E.D. Pa. 2008) (citing Waldron v. SL Indus.,
Inc., 56 F.3d 491, 494 (3d Cir. 1995)).
10 “To establish a prima facie case of discrimination [under the ADA], a plaintiff must show (1) that he is
disabled within the meaning of the ADA, (2) that he is otherwise qualified for the job, with or without reasonable
accommodations, and (3) that he was subjected to an adverse employment decision as a result of discrimination.”
Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 185 (3d Cir. 2010).
11 “To establish a prima facie case of retaliation under Title VII, a plaintiff must tender evidence that: ‘(1)
[he] engaged in activity protected by Title VII; (2) the employer took an adverse employment action against [him];
and (3) there was a causal connection between [his] participation in the protected activity and the adverse
employment action.’” Moore v. City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006), as amended (Sept. 13, 2006).
12 “To establish a retaliation claim in violation of § 1981, a plaintiff must establish the following prima facie
case: “(1) [he] engaged in [protected] activity . . .; (2) the employer took an adverse employment action against
[him]; and (3) there was a causal connection between [his] participation in the protected activity and the adverse
employment action.” Castleberry, 863 F.3d at 267.
13 “To establish a prima facie case of retaliation under the ADA, a plaintiff must show: (1) protected
employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected
activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action.”
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997).
14 “To prevail on a retaliation claim under the FMLA, the plaintiff must prove that (1) [he] invoked her right
to FMLA-qualifying leave, (2) [he] suffered an adverse employment decision, and (3) the adverse action was
causally related to [his] invocation of rights. Lichtenstein, 691 F.3d at 301-02.
work. Def.’s SUMF ¶ 38-39. With respect to plaintiff’s final termination, defendant asserts that
plaintiff’s employment was terminated for soliciting prostitutes on company time in violation of
Grossi’s Employee Conduct and Disciplinary Action Policy. See id. at ¶ 74; John Grossi Dep.
68:17-19. These explanations meet defendant’s “relatively light burden” of production

under McDonnell Douglas. Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006)
(citing Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994)).
iii. Pretext
Based on the evidence of legitimate nondiscriminatory and nonretaliatory reasons for
plaintiff’s one-day layoff and final termination, the burden shifts back to plaintiff at the third step
of the McDonnel Douglas analysis to show that defendant’s explanation is pretextual.
Tourtellotte, 636 F. App’x at 842. To survive a motion for summary judgment, a nonmoving
plaintiff must submit evidence which: (1) “casts sufficient doubt upon each of the legitimate
reasons proffered by the defendant so that a factfinder could reasonably conclude that each
reason was a fabrication;” or (2) “allows the factfinder to infer that discrimination was more

likely than not a motivating or determinative cause of the adverse employment action.” Fuentes,
32 F.3d at 762.
With respect to his one-day layoff, plaintiff does not argue that defendant’s reason for the
layoff—a lack of available work—was pretextual; instead, he asserts that defendant’s refusal to
let him “bump” and avoid the layoff is evidence of discrimination and retaliation. Pl.’s Resp. at
27. The Court disagrees. Defendant refused to allow plaintiff to “bump” into the paint shop
because in October 2018, he submitted a doctor’s note that stated “[plaintiff] must be excused
from working with zinc primer because of respiratory problems when exposed to that agent.”
Def.’s SUMF ¶ 7. Thus, according to the October 2018 doctor’s note, plaintiff was unable to
perform his cousin’s job in the paint shop. See Def.’s SUMF ¶ 37. Nonetheless, plaintiff argues
that the second doctor’s note that he obtained in anticipation of the layoff that merely stated,
“Joseph Canada may work around paint,” Pl.’s Ex. F, should have superseded his October 2018
doctor’s note and that defendant lacked a reasonable justification for refusing the second doctor’s

note. Pl.’s Resp. at 18-19; Pl.’s SUMF ¶ 111. Again, the Court disagrees with plaintiff.
Defendant refused to accept the February 2019 doctor’s note because “it [didn’t] say anything
about [plaintiff’s] previous issue” and “the doctor that wrote [the second note didn’t] have the
medical history to approve this.” Pl.’s Ex. F. The Court concludes that defendant’s explanation
for refusing to accept the second doctor’s note was not unreasonable. No reasonable jury could
conclude that defendant’s proffered nondiscriminatory and nonretaliatory reason for subjecting
plaintiff to a one-day layoff was pretextual.
With respect to plaintiff’s final termination, plaintiff argues that defendant’s reason for
terminating his employment was pretextual because defendant’s explanation for entering the
locker is “unbelievable” and that Osorio’s reason for going through the phone “to find out if it

was a company phone” is also “unbelievable.” Pl.’s Resp. at 27-31. However, these arguments
relate to the propriety of the search of plaintiff’s cellphone, not whether defendant terminated
plaintiff’s employment for appearing to solicit prostitutes while clocked in and on company
property. Moreover, as discussed infra, the Court concludes that defendant did not unlawfully
invade plaintiff’s privacy when it searched his cellphone. Although plaintiff insists that he was
not soliciting prostitutes, Canada Dep. 184:19, there is no dispute that during the search of
plaintiff’s cellphone, Osorio and John Grossi discovered text messages from plaintiff in which he
negotiated the price of various sex acts with several women. Def.’s SUMF ¶ 72; Canada Dep.
188:10-193:24 (explaining the meaning of several of his text messages). Plaintiff sent those text
messages “while at work and clocked in.” Def.’s SUMF ¶ 73. Plaintiff’s employment was
terminated immediately after this discovery. Id. No reasonable jury could conclude that
defendant’s proffered nondiscriminatory and nonretaliatory reason for terminating plaintiff’s
employment was pretextual.

iv. Plaintiff’s Partial Motion for Summary Judgment on his Actual and Perceived
Disability Claim under the ADA

In plaintiff’s motion for partial summary judgment and in his opposition to defendant’s
motion for summary judgment, plaintiff asserts that defendant discriminated against him because
of a perceived disability based on “respiratory problems.” Pl.’s Resp. at 23; Pl.’s Partial Mot.
Summ. J. at 2. However, in his Second Amended Complaint, plaintiff’s disability discrimination
claim under the ADA is based on his “arthritis and herniated discs in his back”—not perceived
respiratory problems. See Second Am. Compl. ¶¶ 41-59. Plaintiff may not raise a claim on
summary judgment that was not pled in the Second Amended Complaint. See Liberty Lincoln-
Mercury, Inc. v. Ford Motor Co., 676 F.3d 318, 326 (3d Cir. 2012); Turinski v. Local 104 Int’l
Ass’n of Fire Fighters, 269 F. App’x 184, 189 (3d Cir. 2008); Spence v. City of Phila., 147 F.
App’x 289, 292 (3d Cir. 2005); myService Force, Inc. v. Am. Home Shield, No. CIV.A. 10-6793,
2013 WL 180287, at *12 (E.D. Pa. Jan. 17, 2013). Additionally, “plaintiff ‘may not amend his
complaint through arguments in his brief in opposition to a motion for summary judgment.’”
Bell v. City of Phila., 275 F. App’x 157, 160 (3d Cir. 2008) (quoting Shanahan v. City of Chi., 82
F.3d 776, 781 (7th Cir. 1996)). Accordingly, plaintiff’s disability discrimination claim under the
ADA based on a perceived disability caused by respiratory problems is improper at this stage of
the proceedings.
In his Reply, plaintiff’s requests leave to amend the Second Amended Complaint
pursuant to Federal Rule of Civil Procedure 15(b)(2). Pl.’s Reply at 3. Federal Rule of Civil
Procedure 15(b)(2) provides for the amendment of a complaint during and after trial when “the
adverse party allows a claim to be tried by explicit or implicit consent.” Swiatek v. Bemis Co.,
542 F. App’x 183, 188 (3d Cir. 2013); Fed. R. Civ. Pro. 15(b)(2). Circuit court are split as to
whether Rule 15(b)(2) applies at the summary judgment stage, and the Third Circuit has not yet

ruled on the issue. See Liberty Lincoln-Mercury, Inc. v. Ford Motor Co., 676 F.3d 318, 326-27
n.7 (3d Cir. 2012) (detailing circuit split and declining to rule on whether Rule 15(b)(2) applies
at the summary judgment stage). This Court need not resolve the question whether Rule 15(b)(2)
applies at the summary judgment stage because defendant has not explicitly or implicitly
consented to plaintiff’s perceived disability discrimination claim under the ADA based on
respiratory problems. See Posey v. NJR Clean Energy Ventures Corp., No. CV146833FLWTJB,
2015 WL 6561236, at *2 n.1 (D.N.J. Oct. 29, 2015). On this issue, the Court notes that
defendant objected to the raising of the perceived disability discrimination claim based on
respiratory problems by plaintiff in his motion for partial summary judgment and argued in its
motion for summary judgment that this claim should be dismissed. Moreover, the evidence of

plaintiff’s perceived disability claim based on respiratory problems was also relevant to his racial
discrimination and retaliation claims. Cf. Addie v. Kjaer, 737 F.3d 854, 867 (3d Cir. 2013)
(“[A]n issue has not been tried by implied consent if evidence relevant to the new claim is also
relevant to the claim originally pled, because the defendant does not have any notice that the
implied claim was being tried.”). The Court therefore denies plaintiff’s request for leave to
amend the Second Amended Complaint pursuant to Federal Rule of Civil Procedure 15(b)(2). In
denying plaintiff’s request, the Court notes that he amended his Complaint on two prior
occasions.
Plaintiff’s motion for partial summary judgment with respect to his disability
discrimination claim under the ADA (Count III) is denied. Defendant’s motion for summary
judgment on plaintiff’s discrimination claims under Title VII, § 1981, the ADA (Counts I, II, and
III) and plaintiff’s retaliation claims under Title VII, § 1981, the ADA, and the FMLA (Counts I,

II, III, and IV) is granted.
B. Hostile Work Environment Under Title VII and § 1981 (Counts I and II)15
Plaintiff asserts that he suffered a hostile work environment based on his race. Second
Am. Compl. ¶¶ 60-75. “In order to establish a hostile work environment claim under Title VII,
[plaintiff] must show that (1) he suffered intentional discrimination because of his [race]; (2) the
discrimination was pervasive and regular; (3) it detrimentally affected him; (4) it would have
detrimentally affected a reasonable person of the same protected class in his position; and (5)
there is a basis for vicarious liability.” Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001);
Mufti v. Aarsand & Co., 667 F. Supp. 2d 535, 544 (W.D. Pa. 2009). “The work environment
must have been so permeated with discriminatory conduct that it objectively altered Plaintiff’s

conditions of employment and created an ‘abusive working environment.’” Turner v. City of
Phila., No. CV 16-4476, 2017 WL 3129622, at *6 (E.D. Pa. July 24, 2017) (quoting Bumbarger
v. New Enter. Stone & Lime Co., 170 F. Supp. 3d 801, 828 (W.D. Pa. 2016)).
“[O]ffhanded comments, and isolated incidents (unless extremely serious) cannot sustain
a hostile work environment claim.” Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005)
(quoting Faragher v. Boca Raton, 524 U.S. 775, 788 (1998)). The “conduct must be extreme.”
Id. In determining whether the conduct at issue is sufficiently extreme, courts consider “the
totality of the circumstances.” Id. The types of circumstances courts consider “may include the

15 The Court analyzes plaintiff’s Title VII and § 1981 hostile work environment claims together because
“[t]he substantive elements of a claim under section 1981 are generally identical to the elements of an employment
discrimination claim under Title VII.” Brown v. J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009).
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Id. at 262-63 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,
23 (1993)). Moreover, “[t]he threshold for pervasiveness and regularity of discriminatory

conduct is high.” Greer v. Mondelez Global, Inc., 590 F. App’x 170, 173 (3d Cir. 2014)
“For racist comments, slurs and jokes to constitute a hostile work environment, there
must be more than a few isolated incidents of racial enmity, meaning that instead of sporadic
racist slurs, there must be a steady barrage of opprobrious racial comments.” Barbosa v. Tribune
Co., No. CIV.A. 01-CV-1262, 2003 WL 22238984, at *3 (E.D. Pa. Sept. 25, 2003) (quoting Al–
Salem v. Bucks County Water & Sewer Auth., 1999 WL 167729, at *5 (E.D. Pa. May 25, 1999)).
“Racial comments that are sporadic or part of casual conversation do not violate Title VII.” Id.
(quoting Gharzouzi v. Nw. Human Servs. of Pa., 225 F. Supp. 2d 514, 534 (E.D. Pa. 2002)).
In this case, plaintiff testified that over the span of 16 months, three Grossi employees
used the N-word six times, only four of which were in his presence. See supra Part II. However,

only one employee, Carlberg, used the N-word in addressing plaintiff—two times over the span
of 11 months. Pl.’s SUMF ¶¶ 15, 31. The Court notes that Carlberg was given a final verbal
warning the second time he called plaintiff the N-word and resigned from Grossi a week later.
Id. Although plaintiff testified that Osorio “used the word ‘nigger’ free, like it was nothing,”
Osorio did not call him the N-word. Canada Dep. 57:11-24; 120:3-8. Additionally, Beck
reportedly told plaintiff that he hated black jellybeans, which plaintiff took to mean that Beck
hated Black people. Pl.’s SUMF ¶ 40.
Although Carlberg used the N-word in addressing plaintiff on two occasions, Carlberg
was plaintiff’s coworker, not a supervisor, and the occasions were 11 months apart. These
comments, although admittedly racist, are insufficiently severe or pervasive to create a hostile
work environment. See Barbosa, 2003 WL 22238984, at *3 (holding that seven sporadic
incidents of harassment including three where plaintiff was called a “fucking spic” over an 18
month period was insufficient to support hostile work environment claim); King v. City of Phila.,

66 F. App’x 300 (3d Cir. 2003) (affirming grant of summary judgment on hostile work
environment on the basis that the use of the word “nigger,” one physical push, and one threat to
sabotage plaintiff’s work record were “isolated and sporadic incidents” and did not demonstrate
a pervasive atmosphere of harassment); but see Castleberry, 863 F.3d at 264 (holding that a
“supervisor’s single use of the ‘n-word’” in front of plaintiffs and their non-African-American
coworkers within “the same breath” as “threats of termination (which ultimately occurred)”
“constitute[] severe conduct that could create a hostile work environment”).
Osorio’s offhand comment to plaintiff that she had used the N-word before,” while
disrespectful and inappropriate, is not sufficiently extreme because she did not use the N-word in
addressing plaintiff. She merely explained that she had used the word before. See Brown-

Baumbach v. B&B Auto., Inc., 437 F. App’x 129, 133 (3d Cir. 2011) (“[T]he mere utterance of
an epithet, . . . does not sufficiently affect the conditions of employment to implicate Title VII
liability.”). Also, plaintiff’s testimony that Osorio “used the [N-word] free, like it was nothing”
does not support a hostile work environment claim because plaintiff presents no evidence that
Osorio made these additional comments in plaintiff’s presence, or that they were directed at
plaintiff. See Caver, 420 F.3d at 263; Boyer v. Johnson Matthey, Inc., No. CIV.A. 02-CV-8382,
2005 WL 35893, at *15 (E.D. Pa. Jan. 6, 2005) (“The use of the term ‘nigger,’ which was not
made with respect to [plaintiff] and which was not used in his presence, although offensive, does
not constitute regular and pervasive harassment of [plaintiff].”). Moreover, Osorio’s comment
that she would shoot plaintiff unless he stopped texting and harassing her cannot support
plaintiff’s hostile work environment based on his race because there is no evidence that this
threat was based on plaintiff’s race.
With respect to Beck, plaintiff was told by another employee that Beck using the N-word

on two occasions. Since Beck’s comments were not made in his presence, and they were not
directed at plaintiff, Pl.’s SUMF ¶¶ 38, 39, the comments do not support a hostile work
environment claim. See Caver, 420 F.3d at 263; Boyer, 2005 WL 35893, at *15. Moreover,
Beck’s comment that he hated black jellybeans is not sufficiently extreme to affect the conditions
of plaintiff’s employment to implicate Title VII liability. See Brown-Baumbach, 437 F. App’x at
133.
Viewing all of plaintiff’s evidence under the totality of the circumstances, the Court
concludes that it does not amount to severe or pervasive harassment based on plaintiff’s race.
Plaintiff’s hostile work environment claim based on his race therefore fails as a matter of law.
Accordingly, defendant’s motion for summary judgment on plaintiff’s hostile work environment

under the Title VII and § 1981 (Counts I and II) is granted.
C. Hostile Work Environment Under the ADA (Count III)
Plaintiff asserts that he was subjected to a hostile work environment based on his actual
or perceived disability. Pl.’s Resp. at 20. Defendant argues that this claim fails because the
conduct that plaintiff complains of was not sufficiently severe or pervasive. Def.’s Mot. Summ.
J. at 24. The Court agrees with defendant on this issue.
“To succeed on a hostile work environment claim under the ADA, the employee must
show the following five factors: ‘(1) [he] is a qualified individual with a disability under the
ADA; (2) [he] was subject to unwelcome harassment; (3) the harassment was based on [his]
disability or a request for an accommodation; (4) the harassment was sufficiently severe or
pervasive to alter the conditions of [his] employment and to create an abusive working
environment; and (5) [the employer] knew or should have known of the harassment and failed to
take prompt effective remedial action.’” Ballard-Carter v. Vanguard Grp., 703 F. App’x 149,

151 (3d Cir. 2017) (quoting Walton v. Mental Health Ass’n, 168 F.3d 661, 667 (3d Cir. 1999)).
“In determining whether an environment is objectively hostile or abusive, the court considers all
of the circumstances, including, ‘the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.’” Martin v. Allegheny Airlines,
Inc., 126 F. Supp. 2d 809, 820 (M.D. Pa. 2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S.
17, 23 (1993)), aff’d, 261 F.3d 492 (3d Cir. 2001).
Plaintiff testified that after he returned from FMLA leave for his disability, Beck and
Thompson asked him why he took time off and would not give him any work orders, which
required plaintiff to guess what work needed to be done. Id. ¶¶ 69-70. Plaintiff also testified

that, although Beck and Thompson failed to give him work orders, 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. A coworker asking
plaintiff why he missed work is not evidence of a hostile work environment under the ADA, see
Walton, 168 F.3d 661, 667 n.4, and Beck and Thompson’s failure to give plaintiff work orders
did not unreasonably interfere with his work performance because plaintiff was still able to
“figure it out” and do “what [he] had to do.” Canada Dep. 50:13-19, 51:14-15.
Plaintiff also testified that Osorio “would find a way to call [him] up to the office and talk
nasty to him” after he returned from FMLA leave. Id. ¶ 72. Plaintiff’s alleged interactions with
Osorio after he returned from FMLA leave “appear to amount to no more than a personality
conflict, and ‘[i]nsensitivity alone does not amount to harassment; the ADA, like Title VII, is not
in effect a general civility code.’” Martin, 126 F. Supp. 2d at 820 (quoting Cannice v. Norwest
Bank Iowa N.A., 189 F.3d 723, 726 (8th Cir. 1999)); Buffa v. New Jersey State Dep’t of

Judiciary, 56 F. App’x 571, 575-76 (3d Cir. 2003) (“This Court has previously ruled that
evidence demonstrating a poor relationship between an employer and an employee is not, by
itself, sufficient to sustain a hostile work environment claim.”). Thus, the Court concludes that
plaintiff failed to show that he was subjected to a hostile work environment based on his
disability. Defendant’s motion for summary judgment on plaintiff’s hostile work environment
under the ADA (Count III) is granted.
D. Interference Under the FMLA (Count IV)
Plaintiff claims that defendant unlawfully interfered with his rights under the FMLA.
Pl.’s Resp. at 4. Defendant argues that this claim fails because plaintiff “cannot identify any
FMLA leave to which he was denied, and thus, he suffered no prejudice in connection with the

alleged discouragement.” Def.’s Mot. Summ. J. at 28. The Court agrees with defendant on this
issue.
To succeed on “a claim of interference under the FMLA, a plaintiff must establish: (1) he
or she was an eligible employee under the FMLA; (2) the defendant was an employer subject to
the FMLA’s requirements; (3) the plaintiff was entitled to FMLA leave; (4) the plaintiff gave
notice to the defendant of his or her intention to take FMLA leave; and (5) the plaintiff was
denied benefits to which he or she was entitled under the FMLA.” Drummer v. Hospital of Univ.
of Pa., No. CV 16-2982, 2020 WL 1922743, at *5 (E.D. Pa. Apr. 21, 2020) (quoting Ross v.
Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014)). An essential element of such a claim that
plaintiff must show is that he was denied benefits under the FMLA, and he has not done so.
Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231, 246 (3d Cir. 2016)
(“[Plaintiff] does not allege he was actually denied FMLA leave. In fact, he concedes that he
was able to take time off to care for his mother. Accordingly, the court was correct in granting

summary judgment against [plaintiff].”); Ross, 755 F.3d at 192 (“[W]e have made it plain that,
for an interference claim to be viable, the plaintiff must show that FMLA benefits were actually
withheld.”).
In this case, there is no evidence that plaintiff was denied leave under the FMLA. Pl.’s
SUMF ¶¶ 58, 64. Plaintiff admits that he utilized FMLA leave “throughout the remainder of his
employment.” Id. Additionally, Osorio testified that plaintiff was not assessed attendance points
for taking FMLA leave, and plaintiff “took FMLA how he wanted, called out and said I’m
calling out under my FMLA.” Osorio Dep. 51:8-11; 53:20-23. Because plaintiff has failed to
show that he was denied benefits under the FMLA, his FMLA interference claim fails.
Accordingly, defendant’s motion for summary judgment on plaintiff’s FMLA interference claim

(Count IV) is granted.
E. Unlawful Access to Stored Communications (Count V)
In Count V of the Second Amended Complaint, plaintiff asserts that defendant
unlawfully accessed stored communications in violation of the Pennsylvania SCA, 18 Pa. Cons.
Stat. Ann. § 5741 et. seq. Both parties moved for summary judgment on this claim. Def.’s Mot.
Summ. J. at 28; Pl.’s Partial Mot. Summ. J. at 7. Plaintiff argues that his “cell phone is clearly a
facility through which an electronic communication is provided[,] and his text messages were
obviously electronic communications in electronic storage.” Pl.’s Mot. Partial Summ. J. at 7-8.
The Court disagrees.
The Pennsylvania SCA is a criminal statute that provides civil relief for “any provider of
electronic communication service, subscriber or customer” who is aggrieved by a violation of the
statute. 18 Pa. Cons. Stat. Ann. § 5747(a). Section 5741(a) states in relevant part:
[I]t is an offense to obtain, alter or prevent authorized access to a
wire or electronic communication while it is in electronic storage
by intentionally:
(1) accessing without authorization a facility through which an
electronic communication service is provided; or
(2) exceeding the scope of one’s authorization to access the facility.

18 Pa. Cons. Stat. Ann. § 5741(a). Although the Pennsylvania SCA does not define the term
“facility,” it does define the term “communication service.” 18 Pa. Cons. Stat. Ann. § 5702. The
statute defines a “communication service” as “[a]ny service which provides to users the ability to
send or receive wire or electronic communications.” Id. This language “most naturally
describes network service providers,” not personal computing devices like computers and
cellphones. Cf. In re Google Inc. Cookie Placement Consumer Privacy Litig., 806 F.3d 125, 146
(3d Cir. 2015) (interpreting the definition of “electronic communication service” under the
Federal Stored Communications Act, 18 U.S.C. § 2701 et seq., which is defined as “any service
which provides to users thereof the ability to send or receive wire or electronic
communications.”). Based on the plain language of the statute, the Court concludes that an
individual’s cellphone is not a “facility” under 18 Pa. Cons. Stat. Ann. § 5741(a) because a
cellphone does not “provide[]” an electronic “communication service”—it merely enables the
use of an electronic “communication service.”
The Court’s conclusion is supported by the numerous federal courts that have interpreted
the Federal Stored Communications Act, (“Federal SCA”) 18 U.S.C. § 2701 et seq. The
Pennsylvania SCA “parallels” the Federal SCA, see Strategic Wealth Grp., LLC v. Canno, No.
CIV.A. 10-0321, 2011 WL 346592, at *3 (E.D. Pa. Feb. 4, 2011), and the two statutes are
worded nearly identically. Compare 18 U.S.C. § 2701, with 18 Pa. Cons. Stat. Ann. § 5741.
Indeed, the Third Circuit has held that the analysis under both statutes is identical. Fraser v.
Nationwide Mut. Ins. Co., 352 F.3d 107, 114 n.9 (3d Cir. 2003), as amended (Jan. 20, 2004).
Like the Pennsylvania SCA, the Federal SCA does not define the term “facility.” See 18 U.S.C.

§ 2510. However, several federal courts interpreting the Federal SCA have held that personal
electronic devices, such as cellphones and personal computers, are not facilities. In re Google
Inc. Cookie Placement Consumer Privacy Litig., 806 F.3d at 146 (holding that “an individual’s
personal computing device is not a facility through which an electronic communications service
is provided” under the Federal SCA); Garcia v. City of Laredo, Tex., 702 F.3d 788, 793 (5th Cir.
2012) (holding that a “home computer of an end user is not protected by the [Federal] SCA”);
Shefts v. Petrakis, No. 10-CV-1104, 2013 WL 489610, at *3 (C.D. Ill. Feb. 8, 2013) (holding
that a cellphone is not a “facility” under the Federal SCA); In re iPhone Application Litig., 844
F. Supp. 2d 1040, 1058 (N.D. Cal. 2012) (concluding that a laptop, computer, or mobile device is
not a “facility” under the Federal SCA).

The above courts reasoned that “the relevant ‘facilities’ that the [Federal] SCA is
designed to protect are not computers that enable the use of an electronic communication
service, but instead are facilities that are operated by electronic communication service providers
and used to store and maintain electronic storage.” Garcia, 702 F.3d at 792 (quoting Freedom
Banc Mortg. Servs., Inc. v. O’Harra, No. 2:11–cv–01073, 2012 WL 3862209, at *9 (S.D. Ohio
Sept. 5, 2012)) (emphasis in original); see also In re Nickelodeon Consumer Privacy Litig., 827
F.3d 262, 276 (3d Cir. 2016) (“[T]he [Federal SCA] aims to prevent potential intrusions on
individual privacy arising from illicit access to stored communications in remote computing
operations and large data banks that stored emails.”); In re Google Inc. Cookie Placement
Consumer Privacy Litig., 806 F.3d 125, 147 (3d Cir. 2015) (“The origin of the [Federal SCA]
confirms that Congress crafted the statute to specifically protect information held by centralized
communication providers.”). Indeed, the Third Circuit “has concluded that ‘facilities’ under the
[Federal] SCA are network service providers, which include ‘telephone companies, internet or e-

mail service providers, and bulletin board services.’” Walker v. Coffey, 956 F.3d 163, 168 (3d
Cir. 2020) (quoting In re Google Inc. Cookie Placement Consumer Privacy Litig., 806 F.3d at
146).
Plaintiff, relying exclusively on Klump v. Nazareth Area School District, 425 F. Supp. 2d
622 (E.D. Pa. 2006), argues that his “cell phone is clearly a facility through which an electronic
communication is provided[,] and his text messages were obviously electronic communications
in electronic storage.” Pl.’s Mot. Partial Summ. J. at 7-8. The Court rejects this argument. In
Klump, the court denied defendants’ motion to dismiss with respect to plaintiff’s unlawful access
to communications claim under the Pennsylvania SCA based on defendants’ search of plaintiff’s
cellphone. Klump, 425 F. Supp. 2d 622 at 634-35. But Klump does not support plaintiff’s

argument for several reasons. First, the court in Klump expressly noted that “[w]e decline to
make any finding at this time as to the proper limits of the term ‘facility’” under the
Pennsylvania SCA. Klump, 425 F. Supp. 2d at 634 n.12. Second, Klump is distinguishable
because it was based, in part, on the allegation that defendant’s searched plaintiff’s voicemail,
which “would have been stored by his cell phone provider and not in the cell phone itself.” Id.
Thus, the Klump court concluded that “there may be facts which, proven by plaintiff, could
support a claim under [the Pennsylvania SCA].” Klump, 425 F. Supp. 2d at 63. In this case
however, there is no evidence that defendant searched plaintiff’s voicemails—defendant only
searched plaintiff’s text messages, which were stored on his cellphone, not by his cellphone
provider. See Pl.’s SUMF ¶ 191. Moreover, although Klump is distinguishable, the Court notes
that it is not binding on this Court.
Because a personal cellphone is not a facility under 18 Pa. Cons. Stat. Ann. § 5741,
plaintiff’s unlawful access to stored communications claim fails as a matter of law. Accordingly,

the Court grants defendant’s motion for summary judgment on plaintiff’s unlawful access to
stored communications claim (Count V) and denies plaintiff’s partial motion for summary
judgment on that claim.
F. Invasion of Privacy (Intrusion Upon Seclusion) (Count VI)
Plaintiff asserts that defendant invaded his privacy by searching his locked cellphone.
Second Am. Compl. ¶¶ 102-103. “An action for invasion of privacy under Pennsylvania law is
comprised of four distinct torts: (1) intrusion upon seclusion, (2) appropriation of name or
likeness, (3) publicity given to private life and (4) publicity placing the person in a false light.”
Kline v. Sec. Guards, Inc., 386 F.3d 246, 260 (3d Cir. 2004) (citing Harris v. Easton Publ’g Co.,
483 A.2d 1377, 1383 (Pa. Super. Ct. 1984)); Tagouma v. Investigative Consultant Servs., Inc., 4

A.3d 170, 174 (Pa. Super. Ct. 2010). Plaintiff asserts that his invasion of privacy claim is one for
“intrusion upon seclusion.” Pl.’s Partial Mot. Summ. J. at 11. In response, defendant argues that
plaintiff’s intrusion upon seclusion claim fails because, inter alia, defendant did not act
intentionally. Def.’s Brief in Opp’n Pl.’s Mot. Partial Summ. J. at 16-17. The Court agrees with
defendant on this issue.
In order to succeed on his intrusion upon seclusion claim under Pennsylvania law,
plaintiff must prove that defendant’s “intrusion was (1) intentional; (2) upon the solitude or
seclusion of the plaintiff, or his private affairs or concerns; and (3) substantial; and (4) highly
offensive.” Pacitti v. Durr, No. CIV.A. 05-317, 2008 WL 793875, at *25 (W.D. Pa. Mar. 24,
2008), aff’d, 310 F. App’x 526 (3d Cir. 2009); see also Tucker v. Merck & Co., 102 F. App’x
247, 256 (3d Cir. 2004). “[T]he intrusion, as well as the action, must be intentional.” O’Donnell
v. United States, 891 F.2d 1079, 1083 (3d Cir. 1989).
In O’Donnell, the Third Circuit observed that “an ‘intrusion upon seclusion’ claim

usually involves a defendant who does not believe that he has either the necessary personal
permission or legal authority to do the intrusive act.” 891 F.2d at 1083. Based on this
observation, the court “conclude[d] that an actor commits an intentional intrusion only if he
believes, or is substantially certain, that he lacks the necessary legal or personal permission to
commit the intrusive act.” Id.; see also Yates v. Commercial Index Bureau, Inc., 861 F. Supp. 2d
546, 552 (E.D. Pa. 2012); Gabriel v. Giant Eagle, Inc., 124 F. Supp. 3d 550, 572 (W.D. Pa.
2015). The Third Circuit went on to affirm the district court’s entry of summary judgment in
favor of the defendant with respect to plaintiff’s intrusion upon seclusion claim under
Pennsylvania law because “the [defendant] believed it had [plaintiff’s] permission to release the
disputed record[, and plaintiff] offered no evidence to the contrary.” Id. In sum, Third Circuit in

O’Donnell held that the lower court did not commit error in granting summary judgment in favor
of the defendant on the intrusion upon seclusion claim because “[t]here [was] no dispute of
material fact concerning the [defendant’s] lack of any intention to invade the plaintiff’s right to
seclusion and privacy.” Id.
In this case, plaintiff’s cellphone was stored in a locker on the shop floor, secured by
plaintiff’s lock. Pl.’s SUMF ¶ 178. Grossi referred to this as a “tool locker” on defendant’s shop
floor. Def.’s SUMF ¶¶ 58-60. Although plaintiff testified that he was the only person who used
this locker on the shop floor, it was not assigned to him by defendant. Pl.’s SUMF ¶¶ 169, 173.
Plaintiff’s personal locker was in the locker room. See Def.’s SUMF ¶ 57. After cutting the lock
on the locker on the shop floor that plaintiff was using, Osorio found tools, paperwork, clothes,
and a cellphone. Osorio Dep. 104:11-15. Osorio testified that she believed the cellphone found
in the locker on the shop floor was a company cellphone because multiple Grossi company
cellphones had gone missing in the past and “[b]ecause it’s a Samsung” and other employees had

been issued Samsung cellphones by Grossi. Osorio Dep. 26:2-20, 105:11-106:14. Although
plaintiff’s cellphone was locked, Osorio unlocked it on her first attempt, and she and John Grossi
then searched the cellphone and the text messages stored on the cellphone to “find out if it was a
company phone.” Osorio Dep. 107:8-18, 108:17-19, 109:13-17. At the time of the search of the
cellphone, Osorio believed she had the legal authority to do so as she thought she was searching
a company cellphone. Cf. O’Donnell, 891 F.2d at 1083 (holding that the Veterans
Administration did not act intentionally because it “believed it had [plaintiff’s] permission.”);
Ruder v. Pequea Valley Sch. Dist., 790 F. Supp. 2d 377, 405 (E.D. Pa. 2011) (dismissing
intrusion upon seclusion claim where plaintiff did not allege facts that defendant believed or was
substantially certain “that he lack[ed] the necessary legal or personal permission”). There is no

other evidence bearing on Osorio’s intent at the time of the search. Thus, the Court concludes
the search of the cellphone was not an intentional intrusion.
In response to this argument, plaintiff asserts that defendant’s stated reason for searching
his cellphone “is simply absurd and could not be believed by any reasonable jury.” Pl.’s Partial
Mot. Summ. J. at 8-10. Specifically, plaintiff argues, inter alia, that because his cellphone was
found in a locker surrounded by his personal effects and secured by his lock, “any reasonable
person” would have thought that the cellphone was a personal cellphone. Id. The Court
disagrees. The Samsung cellphone was found in a large locker on defendant’s shop floor, see
Pl.’s SUMF ¶ 174, 178, not in plaintiff’s personal locker in the locker room, see Canada Dep.
165:16-18. Company cellphones had been lost in the past, and other employees were issued
Samsung cellphones by Grossi. See Osorio Dep. 26:2-20, 105:11-106:14. Thus, Osorio’s belief
that the Samsung cellphone recovered from the locker on the shop floor was a company
cellphone was not “absurd.” The Court rejects plaintiff’s remaining arguments because they

either implicitly assume Osorio knew the cellphone recovered from the locker on the shop floor
belonged to plaintiff, and there is no such evidence, or they merely claim Osorio should have
used a different, less intrusive, means to determine ownership of the cellphone, which the Court
concludes was not required. See Pl.’s Opp. Def.’s Mot. Summ. J. at 32-34.
Because defendant’s search of plaintiff’s cellphone was not an intentional intrusion, his
invasion of privacy claim fails as a matter of law. Accordingly, the Court grants defendant’s
motion for summary judgment on plaintiff’s invasion of privacy claim (Count VI) and denies
plaintiff’s partial motion for summary judgment on that claim.
V. CONCLUSION
For the foregoing reasons, defendant’s motion for summary judgment is granted and

plaintiff’s motion for partial summary judgment is denied.
An appropriate Order follows.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10399423. Public record. Not legal advice.