# Ismail v. McDermott International Inc.

> District Court, M.D. Pennsylvania · March 17, 2022

URL: https://www.frixlaw.com/law-library/cases/10411469

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 17, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10411469

## How later opinions describe it (automated extraction)

- explaining judges should give some review to every report and recommendation

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

HESHAM ISMAIL, :

Plaintiff : CIVIL ACTION NO. 3:19-1305

v. : (JUDGE MANNION)

MCDERMOTT :
INTERNATIONAL,
INC., formerly CB&I, et al., :

Defendants :

MEMORANDUM

Pending before the court are two (2) reports from Magistrate Judge
Susan E. Schwab. The first recommends that the Honeywell defendants’1
motion to dismiss be granted. (Doc. 118). The second recommends that the
Honeywell defendants’ motion for a protective order and motion to compel
discovery be denied. (Doc. 119). The plaintiff has filed objections to the
reports. (Doc. 120).2

1 The Honeywell defendants consist of Darius Adamczyk, Judson
Weiss and Honeywell.

2 Although the plaintiff has expressed concern in his objections “that
[the court] will probably not read [them], the court assures the plaintiff that it
has, in fact, carefully read and considered the objections he has filed.
When objections are timely filed to the report and recommendation of
a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. '636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,
the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to
the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.
2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, Asatisfy
itself that there is no clear error on the face of the record in order to accept
the recommendation.@ Fed. R. Civ. P. 72(b), advisory committee notes; see

also Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469
(M.D.Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.
1987) (explaining judges should give some review to every report and
recommendation)). Nevertheless, whether timely objections are made or not,

the district court may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C.
'636(b)(1); Local Rule 72.31.
By way of relevant background, the plaintiff filed the instant action on
July 29, 2019, under Title VII of the Civil Rights Act of 1964 (“Title VII”) and

42 U.S.C. §1981 alleging that he was discriminated against on the basis of
his race, religion and national origin. (Doc. 1). The plaintiff amended his
complaint on January 23, 2020. (Doc. 20). Following a brief stay of the

matter, the Honeywell defendants filed a motion to dismiss the plaintiff’s
amended complaint. (Doc. 49). The result was that all claims against the
Honeywell defendants were dismissed; however, the plaintiff was given
another opportunity to amend his complaint as to his §1981 claims. (Doc. 76,

Doc. 83).
The plaintiff filed his second amended complaint on April 22, 2021. The
following is a summarization of the plaintiff’s allegations and claims to which

the defendant does not object:
In his second amended complaint, Ismail alleges that he
experienced discrimination based on his race, religion, and
national origin while employed as an Engineer at CB&I (now
McDermott International Inc.). Doc. 84. Specifically, he claims
that sometime in July 2013, he declined to attend a company
potluck lunch hosted by client manager Weiss due to his fasting
in accordance with the Islamic tradition of Ramadan. Id. at 7. As
a result, he was allegedly given an increased workload of “3x his
peers and subject to dishonest and hostile criticism including
profanity by Judson Weiss.” Id. According to Ismail, on October
28, 2014, he reached out to Honeywell plant manager William
Olp (Weiss’ manager) and reported the harassment. Id. Per
Ismail, Olp “promised Plaintiff confidentiality for his complaint;”
however, “William offered no help for the reported harassment
and disclosed the complaint to manager Judson Weiss.” Id. On
February 4, 2015, Ismail was terminated from CB&I. Id. Ismail
claims he was fired for “[l]oss of [c]onfidence,” but claims that he
had no performance or disciplinary issues. Id.
On February 9, 2015, Ismail claims he applied for an
identical job at a different CB&I location but was denied the
interview. Id. Two days later, Ismail alleges that he emailed
Honeywell President Adamczyk regarding an “audio recording of
termination proving racist language as well as cover up of life
critical safety violations by Judson Weiss.” Id. Per Ismail, on
February 13, 2015, a Honeywell HR representative reached out
to him to collect evidence regarding his claims. Id. Ismail alleges
that the HR representative “declined the audio proof of racism.”
Id. According to Ismail, “[w]hen asked what he wanted in
exchange for suppling this evidence to Honeywell, the plaintiff
requested his job back. The plaintiff was told that would be
pending the results of the investigation.” Id.
On June 11, 2015, Ismail alleges that, after several email
requests, Honeywell’s HR finally responded, “claiming the
internal investigation was concluded and found no wrongdoing.”
Id. at 8. On January 20, 2016, Ismail claims he sent Adamczyk
an email containing the allegedly racist audio recording. Id. Per
Ismail, he sent the recording “in good faith proving that there was
no work[-]related reason for termination and asked for
accountability against Judson Weiss so this would not happen to
anyone else.” Id. According to Ismail, on February 1, 2016,
Adamczyk responded “through his VP refusing to consider the
audio evidence, threatened criminal prosecution against plaintiff
for illegally recording his manager’s harassment without
permission, and continued to stand behind manage Judson
Weiss’ actions.” Id. Per Ismail, Honeywell decided his case would
remain closed since there was no new evidence other than the
audio recording. Id. On July 12, 2016, Ismail claims that he
emailed the entire Honeywell corporate management team with
“new evidence ... including email proving that he contacted Plant
Manager William Olp to report the harassment and audio
showing that retaliation was cited by Judson Weiss during
termination for the complaint filed with William Olp.” Id. Ismail
claims that Honeywell did not act on this information. Id.
Under Count Three, Ismail claims the Honeywell
defendants violated §1981 because Adamczyk “sent an email
through his VP discriminated [sic] against plaintiff by upholding
Judson Weiss’ actions against plaintiff despite being given audio
evidence of discrimination and harassment.” Id. Under Count
Four, Ismail claims the Honeywell defendants violated §1981
because Ismail complied with their February 1, 2016 email and
provided new evidence of discrimination, but Honeywell refused
to reopen the discrimination investigation. Id.
Ismail alleges that he filed a charge with the Equal
Employment Opportunity Commission (“EEOC”) on July 10,
2015. Id. at 9. Ismail claims that on July 26, 2019, the EEOC
issued Ismail a right-to-sue letter, which Ismail failed to attach to
his second amended complaint. Id. at 9. But Ismail did attach to
his original complaint a July 26, 2019, Dismissal and Notice of
Rights form from the EEOC. Doc. 1 at 9. For relief, Ismail seeks
reimbursement and payment including but not limited to “back
pay, front pay, salary, pay increases, bonuses, medical and other
benefits, training, promotions, pension, and seniority.” Doc. 84 at
10. Ismail also requests that those benefits should be accorded
from the date on which he first suffered discrimination until the
verdict. Id. Ismail also seeks punitive damages and requests that
all financial relief be paid to the United Nations World Food
Program. Id.

(Doc 118, pp. 2-6).

In their motion to dismiss, the Honeywell defendants argue that the
plaintiff continues to fail to state a claim under §1981 because they and the
plaintiff had no contractual relationship during the relevant time, a
prerequisite to a §1981 claim. Moreover, they argue that the plaintiff cannot
establish that race was a but-for cause of his alleged injury. (Doc. 86, pp. 6-
8).
In addressing the Honeywell defendants’ motion, in her first report,
Judge Schwab noted that, based on the prior decision in this case, the only

allegations which were not time-barred related to the January 20, 2016 email
sent to Adamczyk regarding the audio recording, Adamczyk’s February 1,
2016 response refusing to consider the audio evidence, and the follow-up

July 12, 2016 email that the plaintiff sent to Honeywell regarding new
evidence. In considering the Honeywell defendants’ arguments, Judge
Schwab found that, although the plaintiff did not have a contractual
relationship with Honeywell at the relevant time, his attempts at persuading

Honeywell to reopen the investigation could be construed as an attempt to
form a contract. As a result, Judge Schwab determined that it must be
established if Honeywell’s alleged refusal to reopen the investigation

amounts to an adverse employment action.3 Judge Schwab provided that
the plaintiff’s §1981 claims only related to their failure to reopen the
investigation. Citing to a line of case law from the Third Circuit and district
courts therein that an employer’s failure to conduct an investigation does not

3 As set forth by Judge Schwab, in order to survive a motion to dismiss
on a §1981 claim, the plaintiff must plausibly allege that (1) he is a member
of a protected class; (2) he is qualified for the position or satisfactorily
performed the duties required by her position; and (3) he suffered an adverse
employment action. (Doc. 118, p. 10) (citing Jones v. E. Airlines, LLC, 2021
WL 2456650, at *7 (E.D.Pa. June 16, 2021) (citing Wallace v. Federated
Dep’t Stores, Inc., 214 F.App’x 142, 144-145 (3d Cir. 2007)).
constitute adverse employment action, Judge Schwab found that the
plaintiff’s second amended complaint failed to state a claim against the

Honeywell defendants. She therefore recommends that the Honeywell
defendants’ motion to dismiss be granted. Moreover, in light of the fact the
plaintiff was on his second amended complaint, Judge Schwab recommends

that the plaintiff not be allowed to file yet another amended complaint.4
In the second report, Judge Schwab recommends that, in light of the
recommendation as to the Honeywell defendants’ motion dismiss, a motion
for a protective order (Doc. 104) and a motion to compel discovery (Doc.

112) also filed by the Honeywell defendants should be denied. (Doc. 119).
As indicated, the plaintiff has filed objections to Judge Schwab’s report
recommending that the Honeywell defendants’ motion to dismiss be granted.

In his objections, the plaintiff challenges the case law relied upon by Judge
Schwab arguing that the cases are not addressing §1981 claims, but are

4 Despite the plaintiff’s claim in his objections that the Honeywell
defendants’ request and Judge Schwab’s recommendation that he not be
allowed to file another amended complaint “clearly shows that both the
defense and the judge acknowledge that the merits of [his] case are valid but
they are trying to deny a Pro-se justice on account of the technicality of the
phrasing of the legal complaint document[,]” this is not the case. In fact, the
plaintiff had already filed an original complaint and had been allowed to file
two amended complaints and was still unable to state a valid §1981 claim.
As such, the finding was obviously that it would be futile to continue to allow
the plaintiff to file amended complaints when he was unable to state a claim
to that point.
dealing with other statutes, such as Title VII. This argument is of no moment.
As was discussed by Judge Schwab, the substantive elements of a claim

under Title VII and §1981 are general identical. Therefore, cases in the Title
VII context are equally applicable in the §1981 context. See Brown v. J. Kaz,
Inc., 581 F.3d 175, 181-82 (3d Cir. 2009).

The plaintiff also argues that the adverse action in this matter was not
the failure to reopen the investigation as found by Judge Schwab. Since the
investigation was a prerequisite to re-establishing his contractual
relationship, the plaintiff argues that the denial of the investigation was, in

fact, a denial of the contractual relationship, which the plaintiff argues is the
actual adverse action. The court finds no merit to the plaintiff’s argument.
The second amended complaint alleges discrimination in relation to the

failure to reopen the investigation into the plaintiff’s dismissal. As explained
by Judge Schwab, while the plaintiff’s attempts to convince the defendants
to reopen the investigation could be construed as an attempt to create a
contract, the allegations allege that the discrimination was in relation to the

failure of the defendants to reopen the investigation. Well-established case
law demonstrates that failure to conduct an investigation does not constitute
an adverse employment action. As such, the court will overrule the plaintiff’s

objections and adopt the report and recommendation as to the motion to
dismiss of Judge Schwab as the opinion of the court. In light of this, the court
will also adopt the report of Judge Schwab with respect to the Honeywell

defendants motion for protective order and motion to compel discovery. An
appropriate order shall issue.

S/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge

DATE: March 17, 2022
19-1305-01

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10411469. Public record. Not legal advice.