STOCKER v. GREENE, TWEED & CO., INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EMMANUEL F. STOCKER and : CIVIL ACTION

LEONETTE STOCKER :

:

v. :

:

GREEN, TWEED & CO., INC. : NO. 18-4503

MEMORANDUM

Padova, J. July 31, 2020

Plaintiffs have brought this employment discrimination action against Emmanuel Stocker’s

(“Stocker”) former employer, Green, Tweed & Co. (“GTC”). Stocker asserts claims against GTC

pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 1210 et seq.; the Family and Medical Leave

Act (“FMLA”), 29 U.S.C. § 2601 et seq.; and the Pennsylvania Human Relations Act (“PHRA”),

43 Pa. Stat. Ann. § 951 et seq. Plaintiff Leonette Stocker (“Mrs. Stocker”) asserts a state law loss

of consortium claim against GTC. GTC has filed a Motion for Summary Judgment seeking

summary judgment as to all counts of the Complaint. For the reasons that follow, we grant the

Motion in part and deny it in part.

I. FACTUAL BACKGROUND

Stocker is an African American man who was employed by GTC from 2000 until his

employment was terminated by GTC on March 7, 2017. (Concise Statement of Stipulated Material

Facts (“SF”) ¶¶ 1, 12-13.) At the time of his termination, Stocker worked as a production machinist

for GTC. (Id. ¶ 12.) Stocker was represented by a union while he worked at GTC. (Id. ¶ 14.)

George Landes became Stocker’s direct supervisor in January 2016 and was his direct

supervisor at the time of his termination. (Id. ¶ 15.) David Brooks was Stocker’s direct supervisor

prior to January 2016. (Id. ¶ 16.) Aaron Holmes, who is African American, is a vice president of

the union to which Stocker belonged at GTC. (Id. ¶¶ 19-20.) Holmes is employed at GTC as a

CNC machinist. (Id. ¶ 19.)

Stocker was approved for, and took, short term disability/FMLA leave from June 6, 2016

through October 31, 2016. (Id. ¶ 42.) Liberty Mutual administers GTC’s leave and short-term

disability programs. (Id. ¶ 43.) Stocker and/or his doctors communicated with Liberty Mutual

about his applications for short-term disability and/or medical leave. (Id. ¶ 44.)

Stocker was disciplined several times over the years while he was employed at GTC. He

was disciplined for failure to follow work instructions in 2003; for careless operation of a machine

in 2007; for failure to meet production and/or quality standards in 2013; and for attendance

violations between 2010-15. (Id. ¶¶ 23-29.) After Landes became Stocker’s supervisor in January

2016, Stocker was disciplined with increasing frequency, leading to his termination in March 2017.

He was disciplined seven times during that period:

• Stocker was issued a first level written warning on April 7, 2016, after he was observed by

GTC supervisors Dan Boulay and David Brooks to be asleep on a chair inside the work

area on April 6, 2016. (Id. ¶ 30.)

• On November 9, 2016, Stocker was issued a written/verbal warning after he was observed

by Landes using his cellphone in a work area on May 31, 2016. The discipline was delayed

because Stocker was on leave from June 6, 2016 through October 31, 2016. (Id. ¶¶ 31,

42.)

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• On November 9, 2016, Stocker was issued a “Level Two with 3-day suspension” discipline

for using foul or abusive language to George Landes on May 31, 2016. (Id. ¶ 32.) Stocker

was accused of yelling “‘get out of my f-ing toolbox; get out of my f-ing stuff’” at Landes

in response to Landes’s actions regarding his cellphone on that date. (Id.) The discipline

was delayed due to Stocker’s leave. (Id.) The union filed a grievance regarding this

discipline. (Id. ¶ 32.a.) GTC subsequently reduced the penalty to a one-day suspension

and gave Stocker two days of pay for the other two days he had been suspended. (Id.)

• On November 9, 2016, Stocker was issued a “Level One” discipline for being inside of a

yellow-lined safe work area on October 31, 2016 “without the required safety glasses and

safety shoes, which was a safety violation.” (Id. ¶ 33.) Before the discipline was issued,

Landes told Stocker that he was violating the safety policy and needed to exit the safe work

area to put on his personal protective equipment. (Id.) Stocker, however, stayed inside the

safe work area while he put on his safety shoes. (Id.) When the Level One discipline for

this incident was combined with the Level One discipline issued on April 7, 2016, it

became a “Level Two violation and a one-day suspension.” (Id.)

• On December 21, 2016, Stocker was issued a written/verbal discipline for failing to report

to his workstation at the beginning of his shift, even though he clocked-in at his start time

of 6:45 a.m. (Id. ¶ 34.) He was found in a restroom and then went to HR. (Id.) Stocker

left GTC for the day at 11:00 a.m. (Id.)

• On March 7, 2017, Stocker was issued two disciplines for loitering, i.e., being present in

his work area without actively working, on February 28, 2017 and March 1, 2017. (Id. ¶¶

35-36.) On both days, Landes observed Stocker in his work area, but “his machines were

not running and Mr. Stocker was not actively engaged in any work.” (Id.)

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Pursuant to its progressive discipline policy, GTC combined the written/verbal warning for

February 28, 2017 with the written/verbal warnings on May 31, 2016 and December 9, 2016 to

make a Level One offense. It combined this Level One offense with the April 7, 2016 Level One

offense to make a Level Two offense with a one-day suspension. (Id. ¶ 37.) Under GTC’s policy,

three one-day suspensions within a 12-month period are cause for termination. (Id. ¶ 38.) The

verbal warning for March 1, 2017 could also have led to the same penalty as the written/verbal

warning for February 28, 2017. (Id. ¶ 39.) GTC terminated Stocker’s employment on March 7,

2017. (Id. ¶ 41.)

Stocker filed a grievance over his termination and pursued the grievance through binding

arbitration. (Id. ¶ 45.) On April 17, 2017, Stocker was offered a “Last Chance Agreement” that

would rescind his termination, but he chose not to accept it. (Id. ¶ 46.) The arbitrator concluded

that GTC had “demonstrated that the discharge of the grievant, Emmanuel Stocker, was for just

cause” and denied Stocker’s grievance. (Arb. Decision at 12 (Docket No. 35 at 201 of 214).)

Stocker filed a Charge of Discrimination with the EEOC on December 27, 2017. (SF ¶

47.) In his Charge, Stocker alleged that he had been discriminated against on the basis of his race

and disability and that he had been retaliated against. (Id.)

The Complaint asserts claims on behalf of Stocker for race discrimination in violation of

Title VII (Count I); disability discrimination in violation of the ADA (Count II); retaliation in

violation of Title VII and the ADA (Count III); retaliation in violation of the FMLA (Count IV);

and discrimination and retaliation in violation of the PHRA (Count V). The Complaint also asserts

a claim of loss of consortium on behalf of Leonette Stocker (Count VI). Plaintiffs seek

compensatory damages, punitive damages, attorneys’ fees and costs, front pay, back pay, and

interest for Stocker and compensatory damages for Leonette Stocker.

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II. LEGAL STANDARD

Summary judgment is appropriate “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). An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual

dispute is “material” if it “might affect the outcome of the suit under the governing law.” Id.

“[A] party seeking summary judgment always bears the initial responsibility of informing

the district court of the basis for its motion, and identifying those portions of [the record] which it

believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). Where the nonmoving party bears the burden of proof on a particular

issue at trial, the movant’s initial Celotex burden can be met simply by “pointing out to the district

court” that “there is an absence of evidence to support the nonmoving party’s case.” Id. at 325.

After the moving party has met its initial burden, the adverse party’s response “must support the

assertion [that a fact is genuinely disputed] by: (A) citing to particular parts of materials in the

record . . .; or (B) showing that the materials [that the moving party has] cited do not establish the

absence . . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1). Summary judgment is appropriate if

the nonmoving party fails to respond with a factual 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, 477 U.S. at 322. In ruling on a summary judgment motion, we consider “the

facts and draw all reasonable inferences in the light most favorable to . . . the party who oppose[s]

summary judgment.” Lamont v. New Jersey, 637 F.3d 177, 179 n.1 (3d Cir. 2011) (citing Scott

v. Harris, 550 U.S. 372, 378 (2007)).

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III. DISCUSSION

A. Statute of Limitations

GTC argues that all of Stocker’s claims that he was discriminated and retaliated against are

time barred under Title VII, the ADA and the PHRA, except for his Title VII and ADA claims

relating to his termination. Title VII and the ADA provide that the maximum limitations period

for filing a charge of discrimination is “three hundred days after the alleged unlawful employment

practice occurred.” 42 U.S.C. § 2000e-5(e); 42 U.S.C. § 12117(a). However, the limitations

period for filing a claim under the PHRA is 180 days. See 43 Pa. Stat. Ann. § 959(h) (“Any

complaint filed pursuant to this section must be so filed within one hundred eighty days after the

alleged act of discrimination, unless otherwise required by the Fair Housing Act.”).

1. Title VII and ADA discrimination claims

Stocker filed a Charge of Discrimination against GTC with the EEOC on December 27,

2017. (SF ¶ 47.) GTC argues that, as a result, he can pursue a timely claim of discrimination only

with respect to discrete acts that occurred on or after March 2, 2017, which was 300 days prior to

the date on which he filed his Charge of Discrimination. The Supreme Court has explained that

“discrete discriminatory acts are not actionable if time barred, even when they are related to acts

alleged in timely filed charges.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).

“Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge,

therefore, must be filed within the 180– or 300–day time period after the discrete discriminatory

act occurred.” Id. The Supreme Court also noted that “[d]iscrete acts such as termination, failure

to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination

and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful

employment practice.’” Id. at 114. The United States Court of Appeals for the Third Circuit has

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concluded that Morgan applies to all federal employment law claims, not just to Title VII claims.

See O’Connor v. City of Newark, 440 F.3d 125, 128 (3d Cir. 2006) (“We find persuasive the

reasoning of our sister circuits that the distinction between ‘continuing violations’ and ‘discrete

acts’ is not an artifact of Title VII, but is rather a generic feature of federal employment law.”).

The only discreet act of discrimination alleged in the Complaint that occurred on or after March 2,

2017, was Stocker’s termination.

Plaintiffs contend that we should not use December 27, 2017 as Stocker’s EEOC filing

date to determine what discreet discriminatory acts may be included in his discrimination claims.

Rather, they maintain that we should count back the 300-day limitations period from August 31,

2017. Stocker visited the EEOC on August 31, 2017 with the intention of filing a Charge of

Discrimination against GTC. (Stocker Dep. at 25-26.) While he was there, Stocker filled out an

intake questionnaire and a “Decision Not to File” form, on which he checked the box next to the

following statement: “I have decided not to file at this time because I need additional time to

obtain information in support of my charge and/or because I require additional time to determine

whether I want to pursue this matter further by filing a charge . . . .” (Id. at 24-25.) Stocker

explained at his deposition that he had planned to file a Charge of Discrimination against GTC on

August 31, 2017, but did not do so because he needed additional paperwork. (Id. at 25-26.) The

EEOC investigator wrote in the EEOC Charge Detail Inquiry on August 31, 2017 that Stocker said

that he “needs more time to compile evidence” and that he had set up a telephone interview for the

following week. (Cabrera Ex. A at 3 of 4.)

The Supreme Court has held that the “time period for filing a charge is subject to equitable

doctrines such as tolling or estoppel.” Morgan, 536 U.S. at 113 (citation omitted). Plaintiffs argue

that we should toll the statute of limitations in this case because Stocker intended to file his Charge

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of Discrimination when he went to the EEOC on August 31, 2017. They rely on Huggler v. Elkins

Stroud Suplee & Co., 505 F. Supp. 9 (E.D. Pa. 1980), which states that “when an individual makes

a good faith effort to comply with the administrative process by filing charges with the EEOC and

relies on the special expertise of the EEOC to implement proper procedures, including deferral to

the proper state agency, he should not be barred from suit.” Id. at 11-12 (quoting McAdams v.

Thermal Industries, Inc., 428 F. Supp. 156, 161 (W.D. Pa. 1977)). However, Huggler did not

involve an individual who went to the EEOC and specifically declined to file a charge of

discrimination. Rather, the issue in Huggler was whether a complaint should be dismissed because

it did not specifically allege that the plaintiff had exhausted her state and local remedies prior to

filing suit. Id. at 10. Because the plaintiff had filed a charge of discrimination with the EEOC,

which is supposed to transmit claims to the appropriate state agency, the district court declined to

dismiss her suit. Id. at 11-12. Instead, the district court allowed the plaintiff to “amend her

complaint to allege specifically whether the EEOC, acting on her behalf, invoked or exhausted

available state administrative remedies.” Id. at 12.

Plaintiffs also rely on Lowenstein v. Catholic Health East, 820 F. Supp. 2d 639 (E.D. Pa.

2011), which states that “[t]he purpose of the exhaustion requirement is satisfied as long as ‘the

EEOC had cognizance of the full scope of the situation during its settlement efforts.’” Id. at 645

(quoting Anjelino v. N.Y. Times Co., 200 F.3d 73, 94 (3d Cir. 1999)). However, this case also

does not support Plaintiffs’ argument. Lowenstein concerns the scope of a private civil action filed

after the plaintiff filed a charge of discrimination with the EEOC and after the EEOC had

conducted its investigation and issued a right to sue letter. Id. at 644 (“‘Once a charge of some

sort is filed with the EEOC, . . . the scope of a resulting private civil action in the district court is

defined by the scope of the EEOC investigation which can reasonably be expected to grow out of

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the charge of discrimination . . . .’” (alterations in original) (quoting Hicks v. ABT Assocs., Inc.,

572 F.2d 960, 966 (3d Cir. 1978)). Lowenstein does not concern a situation like the instant

proceeding in which no charge was filed. Plaintiffs do not point to any authority that directly

supports their argument that the statute of limitations should be calculated based on the date that

Stocker first visited the EEOC. Accordingly, we conclude that the 300-day limitations period for

Stocker’s employment discrimination claims brought pursuant to Title VII and the ADA should

be calculated from December 27, 2017, the date on which Stocker filed his Charge of

Discrimination against GTC. See 42 U.S.C. § 2000e-5(e); 42 U.S.C. § 12117(a). Therefore, we

further conclude that to the extent that Stocker’s Title VII and ADA discrimination claims in

Counts I and II rely on discrete discriminatory acts that occurred prior to March 2, 2017, they are

barred by the applicable statutes of limitations. Consequently, we grant the Motion for Summary

Judgment as to Stocker’s claims for discrimination under Title VII and the ADA in Counts I and

II to the extent that those claims are based on discrete discriminatory acts that occurred prior to

March 2, 2017, which leaves Stocker’s termination as the only discrete act subject to his Title VII

and ADA discrimination claims.

2. Title VII and ADA hostile work environment claims

Plaintiffs also argue that Stocker’s Title VII and ADA hostile work environment claims

allege continuing violations that are not barred by the applicable statutes of limitations. The

Supreme Court has held that a hostile work environment exists where “the workplace is permeated

with ‘discriminatory intimidation, ridicule, and insult,’ that is ‘sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an abusive working environment.’”

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v. Vinson,

477 U.S. 57, 65, 67 (1986)). The Supreme Court recognized in Morgan that hostile work

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environment claims should be treated differently with respect to the running of the statute of

limitations than discrimination claims based on discreet discriminatory acts. “Hostile environment

claims are different in kind from discrete acts. Their very nature involves repeated conduct. The

‘unlawful employment practice’ therefore cannot be said to occur on any particular day.” Morgan,

536 U.S. at 115 (citations omitted). As the Supreme Court explained, a hostile work environment

“occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act

of harassment may not be actionable on its own.” Id. (citation omitted.) “[T]he ‘hostile workplace

environment’ theory is designed explicitly to address situations in which the plaintiff’s claim is

based on the cumulative effect of a thousand cuts, rather than on any particular action taken by the

defendant.” O’Connor, 440 F.3d at 128. “In such cases, obviously the filing clock cannot begin

running with the first act, because at that point the plaintiff has no claim; nor can a claim expire as

to that first act, because the full course of conduct is the actionable infringement.” Id. (citing

Morgan, 536 U.S. at 117-18). Thus, “[u]nder the continuing violation doctrine, discriminatory

acts that are not individually actionable may be aggregated to make out a hostile work environment

claim; such acts ‘can occur at any time so long as they are linked in a pattern of actions which

continues into the applicable limitations period.’” Mandel v. M & Q Packaging Corp., 706 F.3d

157, 165 (3d Cir. 2013) (quoting O’Connor, 440 F.3d at 127). To establish “a continuing violation,

the plaintiff must show that all acts which constitute the claim are part of the same unlawful

employment practice and that at least one act falls within the applicable limitations period.” Id. at

165-66 (citing Morgan, 536 U.S. at 122; West v. Phila. Elec. Co., 45 F.3d 744, 754-55 (3d Cir.

1995)).

Plaintiffs contend that Landes subjected Stocker to a hostile work environment from the

time he became Stocker’s supervisor until Stocker was terminated on March 7, 2017, including,

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but not limited to, the disciplines that Landes imposed on Stocker between April 7, 2016 and March

7, 2017. (See SF ¶¶ 30-35.) Since Stocker was disciplined by Landes and terminated within the

limitations periods for Title VII and ADA claims, we conclude that Stocker’s Title VII and ADA

hostile work environment claims in Counts I and II are not barred by the applicable statutes of

limitations. Accordingly, we deny the Motion for Summary Judgment to the extent that

Defendants argue that Stocker’s Title VII and ADA hostile work environment claims in Counts I

and II are barred by the applicable statutes of limitations.1

3. PHRA claims

As we discussed above, the statute of limitations for filing a claim under the PHRA is 180

days. See 43 Pa. Stat. Ann. § 959(h). None of the actions on which Stocker bases his

discrimination and hostile work environment claims occurred within 180 days of the date Stocker

filed his Charge of Discrimination against GTC. Accordingly, we conclude that Stocker’s PHRA

discrimination and retaliation claims in Count V are barred by the PHRA’s statute of limitations,

and we grant the Motion for Summary Judgment as to this argument.

B. Race Discrimination in Violation of Title VII

1. The prima facie case

GTC also argues that it is entitled to summary judgment as to Stocker’s race discrimination

claim in Count I because Stocker is unable to establish a prima facie case of discrimination under

the burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-

1 GTC also argues that we should dismiss Plaintiffs’ title VII and ADA retaliation claims

(Count III) because they are barred by the statute of limitations. However, we grant the Motion

for Summary Judgment as to these claims on other grounds in Section E, infra, and thus decline to

address GTC’s argument with respect to the statute of limitations.

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04 (1973).2 “The McDonnell Douglas framework requires that the plaintiff first establish a prima

facie case of discrimination or retaliation.” Tourtellotte v. Eli Lilly & Co., 636 F. App’x 831, 842

(3d Cir. 2016). “If the plaintiff successfully meets the requirements of a prima facie case, the

burden then shifts to the employer to articulate a legitimate, nonretaliatory or nondiscriminatory

reason for its actions.” Id. “If the employer produces such a reason, 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. Id. (citing McDonnell Douglas, 411 U.S. at

802-04; Atkinson v. LaFayette Coll., 460 F.3d 447, 454 (3d Cir. 2006)). “In the context of a

challenge to a grant of summary judgment, at the pretext stage of McDonnell Douglas the

[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.’” Id. (quoting Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006)).

“To accomplish this, the appellant must ‘demonstrate such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for

its action that a reasonable factfinder could rationally find them unworthy of credence, and hence

infer that the employer did not act for [the asserted] nondiscriminatory reasons.’” Id. (alteration

in original) (quoting Tomasso, 445 F.3d at 706).

In order to establish a prima facie case of discrimination a plaintiff must demonstrate the

following: “(1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for a

2 In the absence of direct evidence of discrimination, Title VII discrimination claims are

analyzed under the burden-shifting framework established by McDonnell Douglas. See Kant v.

Seton Hall Univ., 289 F. App’x 564, 566 (3d Cir. 2008) (citations omitted).

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position or was performing said position satisfactorily; (3) the plaintiff suffered an adverse

employment action; and (4) the adverse employment action occurred under circumstances that

give rise to an inference of unlawful discrimination.” Massaro v. Wells Fargo Home Mortg., Civ.

A. No. 16-4899, 2018 WL 4076319, at *3 (E.D. Pa. Aug. 24, 2018) (citing Fekade v. Lincoln

Univ., 167 F. Supp. 2d 731, 742 (E.D. Pa. 2001)). GTC argues that, while Stocker belongs to a

protected class and suffered the adverse action of termination, his termination did not occur under

circumstances that give rise to an inference of unlawful discrimination.

Circumstances that give rise to an inference of discrimination

GTC argues that Stocker cannot establish a prima facie case of discrimination because

there is no record evidence that would show that his termination was motivated by his race. A

plaintiff “must produce ‘evidence adequate to create an inference that an employment decision

was based on a[n] [illegal] discriminatory criterion.” Leftwich v. Lew, Civ. A. No. 15-300, 2015

WL 8773274, at *7 (E.D. Pa. Dec. 14, 2015), aff’d sub nom. Leftwich v. Sec’y United States Dep’t

of the Treasury, 741 F. App’x 879 (3d Cir. 2018) (quoting Kier v. F. Lackland & Sons, LLC, 72

F. Supp. 3d 597, 608-09 (E.D. Pa. 2014)). “The ‘central focus’ of the prima facie case ‘is always

whether the employer is treating some people less favorably than others because of their race . . .

.’” Id. (quoting Sarullo v. U.S. Postal Serv., 352 F.3d 789, 798 (3d Cir. 2003)). A plaintiff “can

support an inference of discrimination ‘in a number of ways, including, but not limited to,

comparator evidence, evidence of similar racial discrimination of other employees, or direct

evidence of discrimination from statements or actions by her supervisors suggesting racial

animus.’” Id. (quoting Golod v. Bank of Amer. Corp., 403 F. App’x 699, 702 n.2 (3d Cir. 2010)).

“[A] plaintiff can create an inference of discrimination . . . by offering evidence of a similarly

situated employee, not of the protected class, who was treated more favorably” than the plaintiff.

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Viscomi v. Corizon Corr. Healthcare, Civ. A. No. 14-5759, 2015 WL 4770589, at *3 (E.D. Pa.

Aug. 12, 2015) (citing Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 645 (3d Cir.

1998)).

Stocker was terminated in accordance with GTC’s progressive discipline policy after he

accumulated three one-day suspensions within a 12-month period. (SF ¶ 38.) Those one-day

suspensions were (1) the Level Two with 3-day suspension issued on November 9, 2016 for using

foul or abusive language on May 31, 2016, which was later reduced to a one-day suspension after

Stocker’s union filed a grievance on his behalf (id. ¶¶ 32-32.a); (2) the Level One discipline issued

on November 9, 2016 for failing to wear safety equipment inside the safe work area on October

31, 2016, which was combined with the Level One discipline issued on April 7, 2016 for sleeping

in a work area to become a Level Two violation and a one-day suspension (id. ¶¶ 30, 33); and (3)

the discipline for loitering issued on March 7, 2017 for being present in the work area but not

actually working on February 28, 2017, which was combined with the written/verbal warnings on

May 31, 2016 (for using a cellphone in a work area) and December 9, 2016 (for failing to report

to his work area after clocking in) to become a Level One discipline and was also combined with

the Level One discipline issued on April 7, 2016 to become a Level Two violation with a one day

suspension (id. ¶¶ 30-31, 34, 35, 37-38, 41).3

Plaintiffs maintain that all of these disciplinary actions, which GTC combined to trigger

his termination, “occurred under circumstances that give rise to an inference of unlawful

3 GTC does not explain, how, under its progressive discipline policy, Stocker’s Level One

discipline for sleeping in a work area on April 6, 2016 could be combined with both his November

9, 2016 Level One discipline for failing to wear his safety equipment inside the safe work area on

October 31, 2016 to become a Level Two discipline with a one-day suspension and could also be

combined with the three verbal warnings for actions taken on May 31, 2016, December 9, 2016,

and February 28, 2017, to result in a second Level Two discipline.

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discrimination.” Massaro, 2018 WL 4076319, at *3 (citing Fekade, 167 F. Supp. 2d at 742).

Plaintiffs first point to evidence that Stocker was the only African-American employee on his side

of the building during his shift. (Stocker Dep. at 42.) In addition, Stocker’s union representative,

Holmes, testified at his deposition that he has known Stocker for 18 or 19 years and that Stocker

had a reputation among his co-workers of doing decent work. (Holmes Dep. at 12-13, 30.)

According to Holmes, “Manny has always been known for being a stickler for producing good

work [and] he took the added steps to ensure that what he was making was going to be good.” (Id.

at 91.)

Plaintiffs also rely on Holmes’s deposition testimony to show that Landes disciplined

Stocker for actions that would not result in discipline by most of GTC’s supervisors. One example

was Landes’s discipline of Stocker for not wearing his safety equipment in a work area. Holmes

explained that Stocker returned to work from his short-term disability leave on October 31, 2016.

(Id. at 43.) While Stocker was on leave, GTC changed the area where the employees’ lockers and

toolboxes were kept to an area inside the restricted work area, “[s]o, if Manny needed to get his

shoes, he would have had to cross the line.” (Id. at 43-44.) Landes followed Stocker “through the

hallway to see where he was going to stop . . . to put on his safety shoes.” (Id. at 21.) However,

the “the line for where you have to have [safety shoes] on is a very blurred line. It’s not really

clear. And most supervisors, you know, as long as you’re not engaged in work, don’t really care

about that type of thing.” (Id.) “But for some reason, that particular day George [Landes] was

really riding him.” (Id.) Landes gave Stocker “a Level 1 write-up for not having his safety shoes

on in a designated area.” (Id. at 22.) However, as Holmes further described, Stocker was treated

differently from other GTC employees in this instance because, while “15 percent of the

workforce” walked into the department without their safety equipment, most supervisors weren’t

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sticklers about it, they just wanted their employees to be wearing their safety equipment in their

work area, in front of their machines. (Id. at 119.)

Holmes also testified that Stocker was treated differently than other employees regarding

the written warning he received on April 7, 2016, after he was observed by GTC supervisors Dan

Boulay and David Brooks to be asleep on a chair inside the work area. (SF ¶ 30.) Holmes testified

that Stocker “was on his break time. And it’s always a gray area of what you can do on your break

time. So you know, in our opinion, he was on his break time. He was off the shop floor. It used

to be you could do stuff like that . . . .” (Holmes Dep. at 33-34.)

Plaintiffs also maintain that there is record evidence that other employees, who are not

African American, were not disciplined for having cellphones out on the shop floor. As we

mentioned earlier, on November 9, 2016, Landes issued Stocker a written/verbal warning for

having a cellphone out on top of his toolbox on the shop floor on May 31, 2016. (SF ¶ 31; Holmes

Dep. at 36-37.) Holmes testified that, while having a cellphone out on the shop floor is against

GTC’s rules, it is not uncommon, and he believes that it occurs about 30% of the time. (Holmes

Dep. at 39.) Holmes has observed Landes see a worker whose cellphone was out and tell the

worker to “put it away” or just ignore it, “[i]t all depends on who you are.” (Id. at 40.)

Plaintiffs also point to evidence that non-African American employees were not disciplined

for loitering. Holmes testified that he had never known of anyone being written up for loitering

when that individual was in his own work area and working. (Id. at 86-87.) Holmes testified that,

during the ten years he has “been doing union stuff,” loitering “was reserved for if you’re in a

different department where you shouldn’t be, you know, like hanging out kind of. That was like

the general interpretation.” (Id. at 87.) Plaintiffs also point to record evidence that Stocker was

working at his machine on the days he was disciplined for loitering, trying to fix a problem with

16

his machine and that Landes disciplined Stocker even though he was aware that Stocker was

working on fixing a problem with his machine. Holmes explained what happened as follows:

[H]e was having some trouble with an insert. I believe he sought some attention

from a chargehand, and they were working through some problems, you know, on

a Prototrac. And, yes, he was working through some problems. He finally did get

it. Then he got confused about the type of part . . . .

(Id. at 91.) Moreover, Landes disciplined Stocker even though Stocker had bought the problem to

Landes’s attention earlier in the day. Holmes recounted that he had prepared a grievance regarding

this discipline and took it to Landes in Landes’s office. (Id. at 93.) Landes responded “‘[g]rievance

denied. I observed Manny at his machine. He didn’t appear to be doing anything that I would

deem work.’” (Id.) During a meeting with Landes and the union after he was terminated, Stocker

said that he had gone to Landes and told him that he was “working through this problem” and that

was “why the productivity numbers are not going to be high.” (Id. at 95.) Landes admitted that

Stocker had told him that he was having a problem with his machine. (Id.)

We find that Plaintiffs have pointed to record evidence that Stocker was the only African

American employee of GTC that worked on his side of the building during his shift and that Landes

disciplined Stocker in circumstances in which non-African American employees were often not

disciplined, i.e., for sleeping in the work area during a break, having a cellphone out in the work

area, and loitering in the employee’s own work area. We conclude, accordingly, that Plaintiffs

have satisfied their summary judgment burden by pointing to record evidence that raises a genuine

issue of material fact as to whether Stocker was treated differently than other employees not in his

protected group and, therefore, that “the adverse employment action[s] occurred under

circumstances that give rise to an inference of unlawful discrimination.” Massaro, 2018 WL

4076319, at *3 (citation omitted). We further conclude, accordingly, that Plaintiffs have

17

demonstrated the existence of a genuine issue of material fact regarding whether Stocker has

established a prima facie case of race discrimination in violation of Title VII, and we deny the

Motion for Summary Judgment as to this issue.

3. Pretext

GTC also argues that it is entitled to summary judgment as to Stocker’s race discrimination

claim even if Plaintiffs can establish a prima facie case of discrimination in violation of Title VII,

because Plaintiffs cannot satisfy their burden of proving that its legitimate, nondiscriminatory

reason for terminating Stocker’s employment was pretextual. See Tourtellotte, 636 F. App’x at

842 (citations omitted). GTC maintains that it fired Stocker because it believed that he had

committed the disciplinary offenses recorded by Landes and its progressive disciplinary policy

required termination after Stocker’s loitering incidents. (See Landes Decl. ¶¶ 53, 63-64.) GTC

maintains that Landes observed Stocker standing at his machines, doing nothing, during the

morning and afternoon of February 28, 2017, that Stocker’s machines were not running, and that

Stocker was not actively engaged in work. (Id. ¶ 53.) Landes asserts that he went to Stocker on

February 28, 2017 and asked what he was doing and that Stocker ignored his question. (Id.) When

Landes issued Stocker the written/verbal discipline for loitering on February 28, 2017, Stocker

already had more than two written/verbal disciplines in a six-month period. (Id. ¶ 63.) GTC’s

disciplinary process raised the discipline to a Level One warning, which, combined with Stocker’s

Level One warning on April 2, 2016, became a Level Two warning with a one-day suspension.

(Id.) This was Stocker’s third one-day suspension in a twelve-month period. (Id.) Under GTC’s

rules, three one-day suspensions in a twelve-month period warranted termination. (Id. ¶ 64.) GTC

also states that its productivity reports support Landes’s observations of Stocker because they show

that Stocker produced fewer than 200 pieces on February 28 and March 1, 2017 combined, and

18

that the employee who worked on the same machine during the next shift made 1700 pieces of the

same part during one eight-hour shift.4 (Id. ¶¶ 54-57.)

In order to survive a motion for summary judgment where the defendant has satisfied its

burden of articulating “legitimate, non-discriminatory reasons for its action,” a 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 v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (citations omitted). The

Third Circuit has explained that:

because the factfinder may infer from the combination of the plaintiff’s prima facie

case and its own rejection of the employer’s proffered non-discriminatory reasons

that the employer unlawfully discriminated against the plaintiff and was merely

trying to conceal its illegal act with the articulated reasons, a plaintiff who has made

out a prima facie case may defeat a motion for summary judgment by either (i)

discrediting the proffered reasons, either circumstantially or directly, or (ii)

adducing evidence, whether circumstantial or direct, that discrimination was more

likely than not a motivating or determinative cause of the adverse employment

action.”

Id. (citation omitted). “Thus, if the plaintiff has pointed to evidence sufficient[] to discredit the

defendant’s proffered reasons, to survive summary judgment the plaintiff need not also come

4 GTC also argues that Stocker cannot show that its reason for firing him was pretext

because he challenged the decision to terminate him in arbitration and lost. GTC maintains that it

had the burden of showing that it had good cause for Stocker’s termination during that proceeding

and that it met its burden. (Stocker Dep. Ex. 41 (the arbitrator’s decision).) The arbitrator

concluded, “[a]fter a review of all the evidence, . . . that the grievant chose not to work for a good

part of his shifts on February 28 and March 1, 2017, supporting a finding of loitering. Given he

was on the last step of discipline the infraction provides just cause for his discharge.” (Stocker

Dep. Ex. 41 at 11.) However, GTC has cited to no authority that would support the proposition

that the decision of the arbitrator could have collateral estoppel effect in this proceeding.

Accordingly, we decline to find that Stocker cannot establish pretext in this proceeding because

he did not prevail in his arbitration.

19

forward with additional evidence of discrimination beyond his or her prima facie case.” Id.

(citations omitted).

In addition to Plaintiffs’ evidence regarding the loitering incidents, which they rely on in

connection with Stocker’s prima facie case of discrimination, Plaintiffs also point to the following

additional evidence to discredit Landes’s stated reasons for imposing the disciplinary actions on

Stocker that eventually led to his termination under GTC’s progressive discipline process.

Plaintiffs first address Landes’s discipline of Stoker for using profanity during their May 31, 2016

exchange regarding Stocker’s cellphone. Plaintiffs contend that there is evidence that Landes

fabricated his story about Stocker using profanity when he told Stocker to put away his cellphone.

Landes issued Stocker a “Level Two with 3-day suspension” discipline for using foul or abusive

language towards him on May 31, 2016.” (SF ¶ 32.) As we described above, Landes claims that

Stocker yelled the following: “get out of my f-ing toolbox; get out of my f-ing stuff.” (Id.)

Plaintiffs maintain that this could not have happened because Stocker never uses profanity. (See

Stocker Dep. at 154.) Holmes confirmed that he has never heard Stocker curse inside or outside

of work. (Holmes Dep. at 37.) Holmes further testified that he has never heard Stocker say “f---

king something” and he would not believe that Stocker would say such a thing. (Id. at 125-26.)

Holmes explained that Stocker “doesn’t engage in language of that sort.” (Id. at 126.) Holmes

believes that Stocker does not use that language because of his upbringing, his father is a preacher,

and because Stocker is “a man of God, and that’s not Godly.” (Id.)

We conclude, based on the evidence discussed above, and the evidence discussed in

connection with Plaintiffs’ prima facie case, that Plaintiffs have pointed to record evidence “from

which a factfinder could reasonably . . . disbelieve [GTC’s] articulated legitimate reasons” for

Stocker’s termination. See Fuentes, 32 F.3d at 764. We further conclude, accordingly, that

20

Plaintiffs have shown that there are genuine issues of material fact regarding whether they have

established a prima facie case of discrimination with respect to Stocker’s Title VII discrimination

claim and whether GTC’s legitimate, nondiscriminatory reason for Stocker’s termination is

pretext. Consequently, we deny GTC’s Motion for Summary Judgment as to Stocker’s Title VII

discrimination claim related to his termination in Count I.

C. Hostile Work Environment Under Title VII

GTC argues that it is entitled to summary judgment as to Stocker’s claim that he was

subjected to a hostile work environment in violation of Title VII in Count I because Stocker cannot

establish the elements of a hostile work environment claim. To establish a prima facie case of

employment discrimination due to a hostile work environment, a plaintiff must demonstrate the

following five elements: (1) he suffered intentional discrimination because of his race; (2) the

discrimination was severe or pervasive; (3) the discrimination detrimentally affected him; (4) the

discrimination would have detrimentally affected a reasonable person of the same race in his

position; and (5) there is a basis for employer liability. Aman v. Cort Furniture Rental Corp., 85

F.3d 1074, 1081 (3d Cir. 1996) (citations omitted). Discrimination is severe or pervasive if it

“‘alter[s] the conditions of [the victim’s] employment and create[s] an abusive working

environment.’” Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (second alteration in

original) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). “These

standards for judging hostility are sufficiently demanding to ensure that Title VII does not become

a ‘general civility code.’” Id. at 788 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.

75, 80 (1998). “The hostility of a work environment must be determined by the totality of the

circumstances.” Fichter v. AMG Res. Corp., 528 F. App’x 225, 230 (3d Cir. 2013) (citing Harris

v. Forklift Sys., 510 U.S. 17, 23 (1993)). “Such circumstances may include ‘the frequency of the

21

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. (citing Harris, 510 U.S. at 23).

GTC argues that it is entitled to summary judgment because Plaintiffs have no evidence

that Stocker was subjected to severe or pervasive discriminatory conduct on the part of Landes and

because Plaintiffs have no evidence that Landes was motivated by race. GTC relies on Fichter,

which states that “[t]o survive summary judgment, [plaintiff] must present ‘sufficient evidence to

give rise to an inference of discrimination by offering proof that h[is] workplace [was] permeated

with discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to

alter the conditions of [plaintiff’s] employment and create an abusive working environment,’ . . .

and the conduct [was] based on [plaintiff’s protected characteristic].” Id. at 230-31 (fourth, fifth,

and seventh alterations in original) (quoting Abramson v. William Paterson Coll. of N.J., 260 F.3d

265, 278-79 (3d Cir. 2001)). The Supreme Court has “made it clear that conduct must be extreme

to amount to a change in the terms and conditions of employment, and the Courts of Appeals have

heeded this view.” Faragher, 524 U.S. at 788 (citations omitted).

Plaintiffs argue that there is record evidence that Landes’s harassment of Stocker was

severe and pervasive, interfered with his work, and was motivated by his race. Once again,

Plaintiffs rely on Holmes’s deposition testimony regarding the manner in which Landes treated

Stocker. Holmes testified that there was a confrontation between Landes and Stocker at the

beginning of every shift. (Holmes Dep. at 24.) Holmes explained that Landes “would zero in on

[Stocker] as soon as he walked in the door, and it seemed like it would just be like ‘wow.’” (Id. at

24-25.) Holmes observed heated exchanges between Landes and Stocker at least twice a week,

but did not see heated exchanges between Landes and any other employee with that frequency.

22

(Id. at 25.) Holmes also notes that Landes used a tone with Stocker that he deemed “trying to

cause a confrontation” and stated that Landes did not use that tone with others. (Id. at 25-26.)

Holmes also testified that Landes’s approach to Stocker was “accusatory as soon as [he] walk[ed]

in the door.” (Id. at 26.) Holmes further stressed that Landes’s treatment of Stocker was different

from his treatment of other employees:

It seemed like, you know, it was a witch-hunt on the company’s part by Mr. Landes

and the company to kind of get him out of there. They zeroed in on him on several

occasions. I never seen anybody be zeroed in on like that before. I’ve been there

a long time.

It seemed like they were going out of their way to find things to write him up on

where I know for a fact that some people, other people are doing some of these

other things and not being written up.

(Id. at 118-19.) Holmes also testified regarding the severity of Landes’s harassment of Stocker

and the manner in which it interfered with his work. The union filed a grievance regarding

Landes’s issuance of a discipline to Stocker for not being in his work area in early December 2016

because “the company wasn’t providing a safe work environment” for Stocker. (Id. at 74.) Holmes

explained that there was clearly a serious dispute between Stocker and Landes “and the company

wasn’t taking what the union felt was proper steps to kind of resolve the issue. George [Landes]

was still there. He would still be the first person Manny saw when he came into the building, and

that . . . was causing problems for Manny.” (Id. at 74-75.)

Holmes further stated that, while other people complained about Landes, those “incidents

were not frequent.” (Id. at 75.) However, with Stocker:

[t]his was like a daily interaction between the two of them that was just out of

control. . . . It seemed like George was following him, you know, his every move.

If he went to the bathroom, get up out of his office . . . . And, you know, we come

in one day and all of a sudden the machine that [Stocker] works on is put directly

in front of George’s office. Like there’s a window right there. We asked George,

“What’s this about?” You know what I mean? “Why did you move the machine?”

23

He said, “Oh, we just decided to move the department around.” You know, it kind

of gave the impression that he wanted to keep a close tab on what Manny was

exactly doing. Whenever he didn’t see Manny in his line of sight, he would get up

and go find him.

(Id. at 76.) Holmes personally observed Landes follow Stocker around the work area. He testified

that he “would walk back by the time clock and I would see Manny leave to go measure a part,

and I would see George get up and go follow in that direction and then come back to the area,

come back to his office.” (Id. at 77.) “George would get up out of his office[,] out of his chair,

walk around the corner, do a look and come back.” (Id. at 78.) Holmes observed Landes leave

his office to follow Stocker at least three or four times. (Id.)

Holmes also testified as to the effect that Landes’s actions had on Stocker. The parties

stipulated that on December 21, 2016, Stocker was issued a written/verbal discipline for failing to

report to his work station at the beginning of his shift on December 16, 2016, even though he had

clocked-in on time. (SF ¶ 34.) Holmes explained that Stocker had had an argument with Landes

the day before and had complained to Angela Debro, who was in upper management at GTC, and

asked to be moved to a different area because the confrontations with Landes were causing him

anxiety. (Holmes Dep. at 56.) Stocker saw Holmes that morning and told Holmes that he could

no longer work with Landes. (Id. at 58.) While Holmes and Stocker were looking for someone to

talk to about moving Stocker to a different area, they encountered Landes. (Id. at 58-59.) Stocker

told Landes that they could not work together because it was affecting his blood pressure. (Id. at

60.) On another occasion, Stocker told Holmes that he wanted to have someone else present when

he had to speak with Landes because every time he spoke to Landes he got into an agitated state,

once to the point where he had to have medical attention. (Id. at 66-67.) Holmes recalled one

incident where there was a communication between Landes and Stocker at the beginning of the

24

shift and Stocker went to the medical office with tears in his eyes saying “‘I can’t take this

anymore.’” (Id. at 68.) Landes followed Stocker and stopped to tell Holmes that he had a

conversation with Stocker and Stocker became upset. (Id. at 69.) Holmes then checked on Stocker

who was being treated in the medical room. (Id.) Five or ten minutes later an ambulance arrived

and took Stocker, who was unresponsive, out on a stretcher. (Id. at 70-71.) Stocker was taken to

the hospital and released later the same day. (Id. at 71.)

We conclude that Plaintiffs have pointed to record evidence that Landes’s harassment of

Stocker was severe and pervasive, that it detrimentally affected Stocker, and that Stocker brought

this harassment to the attention of GTC. While this testimony does not directly show that Landes’s

conduct was based on Stocker’s race, it does demonstrate that Landes did not treat any other

employee in the same severe manner. Since Stocker was the only African American employee on

his shift on that side of the building, this testimony is evidence that Landes did not treat other

employees, who were not African American, in the same manner in which he treated Stocker. We

further conclude, accordingly, that Plaintiffs have satisfied their burden at summary judgment of

pointing to record evidence that demonstrates the existence of a genuine issue of material fact

regarding whether Landes created a hostile work environment. We therefore deny the Motion for

Summary Judgment as to Stocker’s claim that he was subjected to a hostile work environment in

violation of Title VII in Count I of the Complaint.

D. Disability Discrimination Under the ADA

GTC argues that it is entitled to summary judgment as to Stocker’s disability discrimination

claim under the ADA (Count II) because Stocker is unable to establish a prima facie case of

discrimination. “In assessing claims of discrimination on the basis of a disability, courts apply the

burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803,

25

(1973).” Sampson v. Methacton Sch. Dist., 88 F. Supp. 3d 422, 434 (E.D. Pa. 2015). In order to

establish a prima facie case of discrimination in violation of the ADA, a plaintiff must show the

following: “(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) (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d

Cir. 1999)). “An individual is disabled if he has ‘a physical or mental impairment that substantially

limits one or more of the major life activities of such individual.’” Id. (quoting 42 U.S.C. §

12102(2)). “[T]o establish discrimination because of a disability, an employer must know of the

disability.” Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 380 (3d Cir. 2002) (citing Taylor, 184

F.3d at 313). GTC contends that Stocker cannot establish a prima facie case of discrimination in

violation of the ADA because he cannot show that he is a qualified individual with a disability or

that he was subjected to an adverse employment decision as a result of discrimination.

Disability

GTC argues that Stocker has not submitted evidence that he is disabled as defined by the

ADA. As stated above, the ADA defines disability “with respect to an individual” as “(A) a

physical or mental impairment that substantially limits one or more major life activities of such

individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment

(as described in paragraph (3)).” 42 U.S.C. § 12102(1). The ADA defines “major life activities”

as including “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,

walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,

communicating, and working.” 42 U.S.C. § 12102(2).

26

Stocker testified at his deposition that he is disabled by stress-related high blood pressure,

depression, and an anxiety disorder. (Stocker Dep. at 28-29.) GTC asserts that Plaintiffs cannot

establish that Stocker’s high blood pressure, anxiety and depression are disabilities as defined by

the ADA because there is no evidence that these conditions substantially limited one or more of

Stocker’s major life activities. Plaintiffs have submitted records from Stocker’s treating

psychologist, Dr. Dennis Given, who diagnosed him with major depressive disorder and chronic

post-traumatic stress disorder, “which undermin[ed] his ability to function” and stated that Stocker

should have taken a leave of absence from work until he was more stable. (Docket No. 35 at 207-

09 of 214.) Plaintiffs have also provided progress notes from Dr. Given dated February 15, 2015,

June 26, 2015, August 14, 2015, September 23, 2015, June 27, 2016, and October 13, 2016. (Id.

at 209-14 of 214.) In addition, Stocker testified at his deposition that his high blood pressure

affects his ability to sleep and eat because it causes headaches, and that his anxiety disorder causes

him to shop excessively, eat excessively and have bad dreams. (Stocker Dep. at 32-33.) Stocker

also testified that his high blood pressure prevented him from working on certain days that it was

raised as a result of his interactions with Landes. (Id. at 30-31.) We conclude that Plaintiffs have

pointed to record evidence that supports their contention that Stocker was disabled within the

meaning of the ADA by his depression and have also submitted some evidence that Stoker was

impaired by his anxiety and high blood pressure. Accordingly, we further conclude that Plaintiffs

have satisfied their summary judgment burden of demonstrating a genuine issue of material fact

regarding whether Stocker was disabled as that term is defined by the ADA, and we deny the

Motion for Summary Judgement as to this argument.

27

Adverse employment action

GTC argues that it is entitled to summary judgment as to Stocker’s ADA claim because

there is no evidence that he suffered an adverse employment action as a result of his disability.

ADA plaintiffs “must prove that they were treated differently based on the protected characteristic,

namely the existence of their disability.” CG v. Pennsylvania Dep’t of Educ., 734 F.3d 229, 236

(3d Cir. 2013). “This requires a showing that the disability ‘played a role in the employer’s

decisionmaking process and that it had a determinative effect on the outcome of that process.’”

Moore v. CVS Rx Servs., Inc., 142 F. Supp. 3d 321, 346 (M.D. Pa. 2015), aff’d, 660 F. App’x 149

(3d Cir. 2016) (quoting New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 301

n.4 (3d Cir. 2007)). As we mentioned above, in order to establish that he was discriminated against

on the basis of his disabilities, Stocker must show that GTC knew about his disabilities. See

Rinehimer, 292 F.3d at 380.

GTC maintains that Stocker cannot establish that it had knowledge of his disabilities.

Holmes testified that he was present when Stocker told Landes he could not work with Landes

because their working relationship was affecting his blood pressure. (Holmes Dep. at 60.) In

addition, Stocker testified at his deposition that his doctor notified someone with GTC’s HR about

his high blood pressure in connection with his application for short-term disability leave. (Id. at

37-38.) Stocker also testified that he told Angela Debro about his medical issues5 and that he told

Sharon from HR, whose last name he does not recall, that he had problems with anxiety the day

after he went to the hospital. (Stocker Dep. at 39, 41.)

5 Debro denies that Stocker told her that he has high blood pressure. (Debro Decl. ¶ 30.)

28

We conclude that there is record evidence that Stocker notified three individuals employed

by GTC, including Landes, about his high blood pressure and anxiety. However, Plaintiffs do not

point to any evidence on the record that would show that Landes’s treatment of Stocker was

motivated by Stocker’s medical and mental health conditions. Therefore, we further conclude that

Plaintiffs have failed to demonstrate the existence of a genuine issue of material fact regarding

whether Landes treated Stocker differently based on the existence of his high blood pressure,

anxiety or depression. See CG, 734 F.3d at 236. Accordingly, we grant GTC’s Motion for

Summary Judgment as to Plaintiffs’ claim in Count II that Stocker was discriminated against on

the basis of his disability in violation of the ADA.

Reasonable accommodation

GTC also argues that it is entitled to summary judgment as to Stocker’s claims for violation

of the ADA based on a failure to accommodate theory. Plaintiffs allege that GTC violated the

ADA by denying his psychologist’s request for “a reasonable accommodation on [Stocker’s]

behalf in the form of transferring [him] to the supervision of a different supervisor other than

Landes.” (Compl. ¶¶ 108-09.) To succeed on a failure to accommodate claim, a Plaintiff must

establish the following four elements: “(1) he was disabled and his employer knew it; (2) he

requested an accommodation or assistance; (3) his employer did not make a good faith effort to

assist; and (4) he could have been reasonably accommodated.” Garner v. SEPTA, 410 F. Supp.

3d 723, 741 (E.D. Pa 2019) (citing Capps v. Mondelez Global, LLC, 847 F.3d 144, 157 (3d Cir.

2017)); see also Tourtellotte, 636 F. App’x at 849 (citations omitted).

GTC contends that Plaintiffs cannot establish the fourth element of a failure to

accommodate claim because replacement of an employee’s supervisor is not a reasonable

accommodation as a matter of law. GTC relies on the EEOC’s Enforcement Guidance:

29

Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act,

2002 WL 31994335 (“EEOC Guidance”) at *24 (“An employer does not have to provide an

employee with a new supervisor as a reasonable accommodation.”). GTC also relies on Ozlek v.

Potter, 259 F. App’x 417 (3d Cir. 2007), in which the Third Circuit agreed that “the Rehabilitation

Act does not require employers to accommodate employees by transfer to another supervisor.” Id.

at 420 (quotation omitted); see also Gaul v. Lucent Techs., Inc., 134 F.3d 576, 579 (3d Cir. 1998)

(concluding that the plaintiff’s “request to be transferred away from individuals causing him

prolonged and inordinate stress was unreasonable as a matter of law”). Plaintiffs have not come

forward with any authority to support their argument that moving Stocker to another supervisor

would have been a reasonable accommodation. In the absence of such authority, we conclude that

Plaintiffs have failed to establish that Stocker “could have been reasonably accommodated.”

Garner, 410 F. Supp. 3d at 741 (citation omitted). Accordingly, we further conclude that Plaintiffs

cannot establish the four elements of an ADA failure to accommodate claim, and we grant GTC’s

Motion for Summary Judgment as to Stocker’s claim that GTC failed to accommodate his

disability in violation of the ADA in Count II of the Complaint.

E. Retaliation

GTC argues that it is entitled to summary judgment with respect to Stocker’s claims of

retaliation under Title VII, the ADA, and the FMLA (Counts III and V) because he cannot prove

a prima facie case of retaliation and, even if he could, he cannot establish pretext. Under the

McDonnell Douglas framework, a plaintiff asserting a retaliation claim first must establish a prima

facie case by showing “(1) [that she engaged in] 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.”

30

Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 193 (3d Cir. 2015) (alteration in original)

(quoting Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007)). “If the plaintiff makes

these showings, the burden of production of evidence shifts to the employer to present a legitimate,

non-retaliatory reason for having taken the adverse action.” Id. (citing Mara, 497 F.3d at 300). “If

the employer advances such a reason, the burden shifts back to the plaintiff to demonstrate that

‘the employer’s proffered explanation was false, and that retaliation was the real reason for the

adverse employment action.’” Id. (quoting Marra, 497 F.3d at 300).

“For purposes of the first prong of a prima facie case of retaliation, protected ‘opposition’

activity includes not only an employee’s filing of formal charges of discrimination against an

employer but also ‘informal protests of discriminatory employment practices, including making

complaints to management.’” Id. (quoting Curay–Cramer v. Ursuline Acad. of Wilmington, Del.,

Inc., 450 F.3d 130, 135 (3d Cir. 2006)) (additional citation omitted). “Furthermore, although a

plaintiff in a retaliation case ‘need not prove the merits of the underlying discrimination

complaint,’ she must have ‘act[ed] under a good faith, reasonable belief that a violation existed.’”

Id. (alteration in original) (quoting Moore v. City of Philadelphia, 461 F.3d 331, 344 (3d Cir.

2006)). “This standard requires an ‘objectively reasonable belief’ that the activity the plaintiff

opposed constituted unlawful discrimination under the relevant statute.” Id. at 193-94 (quoting

Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 322 (3d Cir. 2008)).

Title VII and the ADA

GTC argues that Stocker cannot establish a prima facie case of retaliation in violation of

Title VII or the ADA (Count III) because there is no evidence that he made a complaint regarding

31

discrimination based on a protected category.6 Plaintiffs contend that Landes retaliated against

Stocker by escalating his harassment after Stocker complained about Landes to Holmes and

Holmes informed Landes about those complaints. Holmes testified that Stocker complained to

him that Landes took away his toolbox and that Landes caused him anxiety, which affected his

blood pressure, but there is no record evidence that Stocker told Holmes that he believed that

Landes took these actions because of his race or disability. (Holmes Dep. at 50, 56, 60.) Plaintiffs

also assert that Landes retaliated against Stocker for complaining about him to Angela Debro once

on May 31, 2016 and again in early December 2016. Stocker testified at his deposition that he

complained to Debro that Landes approached his personal space and also harassed him about his

break time and about shaving at his machine. (Stocker Dep. at 53-55.) Stocker further stated at

his deposition that he told GTC’s HR that Landes treated him in this manner because of his race

and disability. (Id. at 55, 58, 60-61.)

GTC asserts that Stocker’s unsupported deposition testimony that he complained that

Landes discriminated against him based on his race and disability is insufficient to defeat summary

judgment because it is contradicted by record evidence. The Third Circuit has instructed that a

“[plaintiff’s] unsupported deposition testimony, which is contradicted by the record, is insufficient

to defeat summary judgment.” Thomas v. Delaware State Univ., 626 F. App’x 384, 389 n.6 (3d

Cir. 2015) (citing N.L.R.B. v. FES, (a Div. of Thermo Power), 301 F.3d 83, 95 (3d Cir. 2002)

(additional citations omitted)); see also Byrne v. Monmouth Cty. Dep’t of Health Care Facilities,

372 F. App’x 232, 234 (3d Cir. 2010) (“An opponent of summary judgment cannot rely upon

6 We need not address GTC’s other arguments that it is entitled to summary judgment as

to Count III because we grant the Motion for Summary Judgment as to Count III in connection

with this argument.

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unsupported assertions, conclusory allegations, or mere suspicions to create a disputed issue.”

(citing Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989); Lujan v. Nat’l

Wildlife Fed., 497 U.S. 871, 888 (1990))).

There is record evidence that Stocker did not complain to Debro or anyone at GTC’s HR

that he had been discriminated against because of his race and/or disability. The EEOC

investigator noted in his Charge Detail Inquiry that Stocker told him that he made one complaint

to HR but did not complain about treatment due to race, age, or disability. (Cabrera Decl. Ex. A

at 3 of 4.) In addition, Debro states in her Declaration that Stocker never complained to her about

mistreatment based on his race or disability. (Debro Decl. ¶ 40.) We conclude that Stocker’s

unsupported assertions during his deposition that he made a complaint to GTC’s HR that Landes

mistreated him because of his race and disability are insufficient, in and of themselves, to defeat

GTC’s Motion for Summary Judgment as to his claims of retaliation in violation of Title VII and

the ADA because they are contradicted by other record evidence. Accordingly, we grant the

Motion for Summary Judgment as to Stocker’s claims of retaliation in violation of Title VII and

the ADA in Count III of the Complaint.

2. The FMLA

GTC argues that it is entitled to summary judgment as to Stocker’s claim that he was

retaliated against for using FMLA leave (Count IV) because Stocker cannot establish a causal link

between his protected activity (use of FMLA leave) and any adverse employment action. To

succeed on an FMLA retaliation claim, the plaintiff must prove the following three factors: “(1)

[he] invoked h[is] right to FMLA-qualifying leave, (2) [he] suffered an adverse employment

decision, and (3) the adverse action was causally related to h[is] invocation of rights.” Lichtenstein

v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012) (citing Erdman v. Nationwide

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Ins. Co., 582 F.3d 500, 508-09 (3d Cir. 2009). Once the plaintiff has established a prima facie

case of retaliation, “the burden shifts to the defendant to provide evidence of a legitimate non-

discriminatory reason for the adverse action. Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d

245, 256 (3d Cir. 2014) (citing McDonnell Douglas, 411 U.S. at 802). “If the employer meets this

‘minimal burden,’ the employee must then point to some evidence that the defendant’s reasons for

the adverse action are pretextual.” Id. (citing Lichtenstein, 691 F.3d at 302).

There is record evidence that Stocker went out on FMLA leave from June 1, 2016 until

October 31, 2016. (SF ¶ 42.) He applied for short-term disability benefits through GTC’s

disability insurance carrier, Liberty Mutual, for stress related issues, specifically high blood

pressure, anxiety, depression, medical problems and headache. (Stocker Dep. at 68-69.) Liberty

Mutual approved his application for short-term disability benefits. (Id. at 73, 78-80.) Plaintiffs

maintain that Stocker suffered an adverse employment action in the form of discipline the day he

returned from FMLA leave. Specifically, he was issued a “Level One” discipline for being inside

of a yellow-lined safe work area on October 31, 2016 “without the required safety glasses and

safety shoes” even though the location of the safety equipment had been moved while he was on

leave. (SF ¶ 33, Holmes Dep. at 43-44.) When the Level One discipline for this incident was

combined with the Level One discipline issued on April 7, 2016, it became a “Level Two violation

and a one-day suspension.” (SF ¶ 33.) This discipline contributed to GTC’s stated reason for

Stocker’s termination the following March. (Id. ¶ 38.) Plaintiffs argue that the temporal proximity

between the October 31, 2016 discipline and Stocker’s FMLA leave supports the causal connection

between the discipline and the FMLA leave.7

7 Plaintiffs also suggest that causation can be inferred from the fact that Landes tried to

assign Stocker attendance points for every day he was on FMLA leave. Plaintiffs have submitted

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“When the ‘temporal proximity’ between the protected activity and adverse action is

‘unduly suggestive,’ this ‘is sufficient standing alone to create an inference of causality and defeat

summary judgment.’” Lichtenstein, 691 F.3d at 307 (quoting LeBoon v. Lancaster Jewish Cmty.

Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007)). We conclude that the temporal proximity between

Stocker’s return from FMLA leave and his discipline (which occurred on the same day), is

sufficient at the prima facie stage to indicate that the adverse action was causally related to

Stocker’s use of FMLA leave. See id. (“‘Although there is no bright line rule as to what constitutes

unduly suggestive temporal proximity,’ the temporal proximity in this case [one week] is in the

realm of what this Court and others have found sufficient at the prima facie stage.” (quoting

LeBoon, 503 F.3d at 233) (citing Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989); Seeger v.

Cincinnati Bell Tel. Co., 681 F.3d 274, 283 (6th Cir. 2012); Wierman v. Casey’s Gen. Stores, 638

F.3d 984, 994 (8th Cir. 2011); McCann v. Tillman, 526 F.3d 1370, 1376 (11th Cir. 2008))). We

conclude, accordingly, that Plaintiffs have pointed to record evidence that demonstrates a genuine

issue of material fact regarding whether GTC retaliated against Stocker for taking FMLA leave.8

a Termination Notice prepared for Stocker dated November 1, 2016 (the day after Stocker returned

from his FMLA leave), which shows that Stocker was assigned points for unexcused absence while

he was on FMLA leave every day from July 11, 2016 through October 28, 2016 and that Landes

signed the Termination Notice. (Pls.’ Ex. Attendance Log (Docket No. 35-3).)

8 GTC also argues that it is entitled to summary judgment as to Stocker’s FMLA retaliation

claim because Plaintiffs cannot show that GTC’s articulated reason for Stocker’s termination is

pretextual. GTC relies on the same evidence it relied on with respect to its argument that Stocker

could not establish that its articulated reason for his termination was pretextual in connection with

Count I. As we concluded, with respect to Count I, that Plaintiffs have pointed to record evidence

“from which a factfinder could reasonably . . . disbelieve [GTC’s] articulated legitimate reasons”

for Stocker’s termination, we deny GTC’s Motion for Summary Judgment with respect to this

argument in connection with Count IV. See Fuentes, 32 F.3d at 764.

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We therefore deny the Motion for Summary Judgement as to Stocker’s claim for retaliation in

violation of the FMLA (Count IV).

F. Loss of Consortium

GTC argues that it is entitled to summary judgment as to Mrs. Stocker’s loss of consortium

claim in Count VI because a loss of consortium claim cannot be based on a spouse’s Title VII or

civil rights claim. “Under Pennsylvania law, loss of consortium claims derive from the injured

spouse’s right to recover in tort law.” Dean v. Philadelphia Gas Works, Civ. A. No. 19-4266, 2019

WL 6828607, at *5 (E.D. Pa. Dec. 12, 2019) (citing Little v. Jarvis, 280 A.2d 617, 620 (Pa. Super.

Ct. 1971)). “There is no right to recover for loss of consortium, however, based on civil rights

claims under Title VII, the PHRA or § 1983.” Id. (citing Goldberg v. City of Philadelphia, Civ.

A. No. 91-7575, 1994 WL 313030, at *13 (E.D. Pa. June 29, 1994); McInerney v. Moyer Lumber

& Hardware, Inc., 244 F. Supp. 2d 393, 402 (E.D. Pa. 2002); Williams v. City of Chester, Civ. A.

No. 14-4420, 2015 WL 224384, at *4 (E.D. Pa. Jan. 15, 2015)). See also Yarnall v. Philadelphia

Sch. Dist., Civ. A. No. 11-3130, 2013 WL 1389757, at *6 (E.D. Pa. Apr. 4, 2013) (dismissing

plaintiff’s derivative loss of consortium claims where the spouse’s state law tort claims had been

dismissed and the spouse’s civil rights claims did not support loss of consortium claims) (citing

Quitmeyer v. Se. Pa. Transp. Auth., 740 F. Supp. 363, 370 (E.D. Pa. 1990); and Darr Constr. Co.

v. Workmen’s Compensation App. Bd., 715 A.2d 1075, 1080 (Pa. 1998))); Verde v. City of

Philadelphia, 862 F. Supp. 1329, 1337 n.5 (E.D. Pa. 1994) (“The loss of consortium count is

deemed to be derivative only of the claim for intentional infliction of emotional distress. None of

the statutes on which the other counts are based—Title VII, the PHRA, and section 1983—allow

other than a personal right of action.” (citations omitted)). Loss of consortium claims are also

unavailable where the spouse’s claims arise under the ADA. See Adam C. v. Scranton Sch. Dist.,

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Civ. A. No. 07-532, 2011 WL 996171, at *9 (M.D. Pa. Mar. 17, 2011) (stating that “[l]oss of

consortium claims are not available . . . under the ADA and RA” (citing Vargus v. Matthew Donut,

Inc., Civ. A. No. 92-301, 1994 WL 259802 (D.N.H. 1994))). A spouse’s FMLA claims also cannot

support loss of consortium claims. See Brown v. ATX Grp., Inc., Civ. A. No. 11-3340, 2012 WL

3962620, at *11 (N.D. Tex. July 16, 2012) (“[S]everal courts have held that a claim for loss of

consortium is not available under the FMLA, ADA, or § 1983.” (citing Jean–Louis v. Clifford,

Civ. A. No. 06-3972, 2012 WL 274031, at *8 (D.N.J. Jan. 31, 2012); Laute v. City of Gloucester,

Civ. A. No. 11-3792, 2012 WL 253132, at *4 (D.N.J. Jan.25, 2012); Cookenmaster v. Kmart

Corp., Civ. A. No. 07-13947, 2008 WL 4539385, at * 19 (E.D. Mich. Oct.7, 2008))). Stocker has

asserted claims against GTC for violations of Title VII, the ADA, the PHRA, and the FMLA.

Since loss of consortium claims are not available when the spouse’s claims are based on Title VII,

the ADA, the PHRA or the FMLA, we grant GTC’s Motion for Summary Judgment with respect

to Mrs. Stocker’s claim for loss of consortium.

IV. CONCLUSION

For the reasons stated above, we grant GTC’s Motion for Summary Judgment as to

Stocker’s claim of race discrimination in violation of Title VII in Count I with respect to all adverse

employment actions except for the termination of Stocker’s employment; Stocker’s claim of

discrimination in violation of the ADA in Count II; Stocker’s claim of retaliation in violation of

Title VII and the ADA in Count III; and his claims of discrimination and retaliation in violation of

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the PHRA in Count V. We also grant the Motion with respect to Mrs. Stocker’s loss of consortium

claim in Count VI. The Motion is denied in all other respects. An appropriate order follows.

BY THE COURT:

/s/ John R. Padova

____________________________

John R. Padova, J.

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