The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARK RUSSIN, : No. 3:22cv872
Plaintiff :
: (Judge Munley)
V. :
WAL-MART STORES EAST, LP dibia :
WAL-MART DISTRIBUTION CENTER; :
WAL-MART, INC. d/b/a WAL-MART _ :
DISTRIBUTION CENTER; and :
WAL-MART ASSOCIATES, INC., :
Defendants :
MEMORANDUM
Plaintiff Mark Russin asserts claims against his former employer, Walmart,
for sexual harassment, disability discrimination, hostile work environment, and
retaliation pursuant to the Americans with Disabilities Act, as amended, 42
U.S.C. §§ 12101, ef seq. (“ADA”), Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e, et seg. (“Title VII") and the Pennsylvania Human Relations Act,
43 PA. STAT. §§ 951, ef seq. (“PHRA’). Before the court is a motion for summary
judgment filed by Walmart as to each claim. (Doc. 38). Having been fully briefed,
Walmart’s motion Is ripe for disposition.
Background
Russin worked at a Walmart distribution center as a custodian. He
received formal discipline and was ultimately terminated, per Walmart, for
working overtime and for working excessively long shifts without approval.
Russin maintains, however, that he had approval. He asserts that Walmart fired
him because he rejected a sexual advance from the distribution center's general
manager and reported the incident. Russin also asserts that Walmart terminated
him because he has actual or perceived disabilities related to the removal of his
esophagus and other related medical conditions.
The details of this case as presented, however, make the issues before the
| court less straightforward on summary judgment. ' To start, Walmart hired
| Walmart filed a statement of material facts (“SOF”) with the motion for summary judgment as
| required by the Rules of Court for the Middle District of Pennsylvania (“Local Rules”). M.D. PA.
L.R. 56.1. Russin responded as required by the Local Rules. When possible, the court cites
to Walmart’s SOF, (Doc. 40), for facts which Russin admitted in his response, (see Doc. 43-1).
Otherwise, the court cites to portions of the evidentiary record supplied by the parties. All facts
from the record are construed in a light most favorable to plaintiff as the nonmoving party. See
Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 187 (3d Cir. 2015)}{citation omitted).
Russin, however, also filed an additional counterstatement of material facts, (Doc. 43-2). which
Walmart moves to strike, (Doc. 48). Local Rule 56.1 does not permit a non-moving party to file
| an additional statement of materiai facts that does not respond to the moving party’s statement
| because such efforts hamper the court's ability to identify contested facts expeditiously. See
| Williams v. Pennsylvania State Univ., 697 F. Supp. 3d 297, 310-11 & nn. 29, 34 (M.D. Pa.
2023)(collecting cases). When opposing a motion for summary judgment, it is sufficient for a
non-moving party to deny paragraphs in a moving party’s statement of material facts with
citations to the record advancing that genuine issues remain for a factfinder. See FED. R. Civ.
P, 56(c)(1), 56(e); M.D. PA. L.R. 56.1. To the extent that there may be other evidence to
consider, the non-moving party should tailor their responses to a moving party's statement of
material facts without extraneous filings.
Nonetheless, Walmart’s motion to strike and its request to respond to plaintiff's
counterstatement of material facts will be denied. The reasoned, appropriate approach under
these circumstances is to consider the entirety of the parties’ filings, including the additional
facts advanced by Russin. See Williams, 697 F. Supp. 3d at 312; Evans v. Lowe's Home
Russin on January 30, 2020, to work at one of its distribution centers in Pottsville,
Schuylkill County, Pennsylvania. (Doc. 40, SOF 4] 5). Walmart initially hired
Russin as a lift driver. (Doc. 43-12, Pl. Ex. J., Job Offer, Doc. 43-21). That job
entailed moving pallets of product using a forklift-like machine in the meat and
produce areas of the facility. (Doc. 43-4, Pl. Ex. B., Pl. Dep. 28:20-—29:2, 48:19-
| 24). Instead of being trained as a lift driver, however, Walmart tasked Russin
| with sweeping floors. (Id. 49:6-52:18).
| Russin formally changed positions from lift driver to custodian on June 6,
2020. (Doc. 40, SOF 7). In that role, Russin’s duties involved cleaning the
workplace, including bathrooms and break areas. (Id. ] 8). Russin’s tenure at the
| Walmart distribution center coincided with the first two years of the COVID-19
| pandemic. (See Doc. 43-4, Pl. Dep., 56:4-18, 64:12-23: 81:21-82:11, 162:18-
163:10, 165:4-11; see also Doc. 43-12, Pl. Ex. J., Job Offer, Doc. 43-21, Pl. Ex.
|S, Term. Form).
| Distribution center operations involve order fulfillment and the outbound
shipping of groceries to Walmart's retail stores. (See Doc. 43-15, Pi. Ex. M., C.
Warner Dep., 13:4-12). Between 1,200-1,500 individuals worked in the building
Centers, inc., No. 3:04cv0439, 2005 WL 2347246, at *4 (M.D. Pa. Sept. 26, 2005)(Munley,
James, J.). The court will accept Russin’s counterstatement only to the extent that the
included facts are supported by the summary judgment record. Moreover, the evidentiary
record provided by the parties is sufficient to address Walmart’s motion for summary judgment.
| at the time of the plaintiff's employment. (Doc. 43-10, PI. Ex. H., J. Parrado Dep.,
73:22—74:10; Doc. 43-33, Ex. EE, E. Hernandez Dep. 28:15—29:22).
| Russin suffers from several medical conditions. These conditions resulted
in the removal of his esophagus prior to his employment with Walmart. (Doc. 43-
4, Pl. Dep. at 14:11-15; Doc. 43-6, Pi. Ex. D., MGH Med. Recs, ECF p. 8).
Russin, however, did not need an accommodation to perform the essential duties
of lift driver or custodian at the distribution center. (Doc. 40, SOF 976, 8).
Per the plaintiff, however, the removal of his esophagus left highly visible
scarring on his neck. (Doc. 43-4, Pl. Dep. 85:11-21, 87:2-15, 111:6-—112:10,
264:24-265:1). When asked about the scarring in the workplace, Russin told his
Walmart coworkers and supervisors about his medical issues and the surgical
intervention. (Id. at 87:2-15, 94:4-96:20). Russin contends that his medical
conditions were subsequently discussed by management. (Doc. 40, SOF □ 15).
His actual medical conditions are disputed by the parties. But, in his deposition,
Russin explained that his Walmart supervisors construed his condition to be
cancer based on workplace conversations. (Doc. 43-4, Pl. Dep., 87:2-20, 89:5-
94:3-96:19, 248:5-25, 251:5-252:9, 256:24-257:18, 266:3-16).
2 Russin testified that he initially applied for work at Walmart’s distribution center as an order
filler. (Doc. 43-4, Pl. Dep. 219:1-221:18). Walmart disqualified him from the position because
he could not do sit-ups or lay flat on his back as the result of his surgeries. (Id.). Ultimately,
Walmart offered Russin the position as a lift driver. (Id., 221:19-222:25).
|
Russin also testified that he worked weekend shifts at the distribution
| center so he could attend medical appointments during the week. (Id., 22:21—
| 23:7, 172:8-173:4). Russin’s schedule called for him to work Saturday, Sunday,
and Monday from 5:00 AM to 5:00 PM. (Id., 229:3-14). Nonetheless, at times,
Russin worked more than fourteen (14) hours per shift. (Doc. 40, SOF FJ 28, 34).
| Additional hours were not available in Russin’s assigned department, but
| distribution center associates were permitted to work in other departments based
on availability. (Doc. 40, SOF Jf] 23-24).
According to Russin, he regularly picked up additional hours in the meat
and produce areas of the facility with the approval of those department
| managers. (Doc. 43-4, Pl. Dep., 139:19-140:20, 234:2-235:5). According to
Walmart, however, working more than fourteen (14) hours in a shift violated a
safety rule set by the assistant general manager of the distribution center, Clinton
Warner. (Doc. 43-15, C. Warner Dep. 18:1-20).
Russin contends that his issues at the workplace began in approximately
April 2021. (Doc. 43-4, Pl. Dep., 246:16-247:5). One day, the distribution
center’s general manager, Tim Dawson, called Russin into his office. (Id.)
According to Russin, he recognized Dawson, but did not know his title or status.
(Id. at 247:6-11). Prior to that one-on-one meeting, Russin perceived Dawson as
“some strange guy” and “a creep” who followed him around the workplace. □□□□□
According to the Russin’s testimony about the meeting, the conversation
concerned the plaintiff's use of overtime. (Id., 248:5-249:24). Dawson stated
that Russin should not be working overtime with his condition. (Id.) Dawson also
called the plaintiff “sickly.” (id., 175:16-19). During the meeting, Russin
responded that he depended on the overtime. (ld., 248:5-249:24). Per the
plaintiff, Dawson then stated (twice), “we have to go out if you want to change the
outcome of your overtime.” (Id.)
In that moment, Russin responded that he had work to do and left
Dawson's office. (See id.,175:16-177:19; 184:14-185:1. 248:5-249:24),
According to Russin, he thought Dawson was hitting on him and, in context,
interpreted the comments as sexual in nature. (id.) According to the plaintiff,
Dawson “didn’t seem too very happy” and “was kind of angry” after being
| rebuffed. (Id., 175:16-176:22).
As discussed in this memorandum, Russin reported to many different
| individuals during his time at the Walmart distribution center. For the relevant
period, Russin’s direct supervisor was Joseph Cookson, a maintenance area
manager. (Doc. 40, SOF J 10). Cookson’s supervisor was Joseph Parrado,
maintenance operations manager. (id. J 11). Cookson and Parrado were
supervised by Clinton Warner, the assistant general manager. (Doc. 40, SOF J
12). Warner reported to Dawson, the general manager of the entire facility. (See
| Doc. 43-15, C. Warner Dep., 11:12-18). Following Russin’s one-on-one meeting
with Dawson, the plaintiff reported seeing Dawson approach Parrado, plaintiff's
second-level supervisor. (Doc. 43-4, Pl. Dep., 66:23-67:13, 176:17-22; 249:25-
291:4; Doc. 43-17, Pl. Ex. O, S. Schmidt Investigative Report, ECF p. 8).
After Dawson spoke to Parrado, Parrado then told Russin that he could no
longer accumulate overtime. (Doc. 43-4, Pl. Dep., 178:14-25: Doc. 43-17, PI. Ex.
O, S. Schmidt Investigative Report, ECF p. 8). in that conversation, Parrado also
referenced the plaintiff's scar and mentioned cancer. (Doc. 43-3, P!. Dep., 85:8—
| 86:20). Russin believed that Parrado’s conduct came at the direction of Dawson.
(Id., 67:21-68:5). Nonetheless, Russin testified that he still observed people at
| the distribution center working overtime, including sixteen-hour shifts or more.
(Id. 68:6—73:23),
After the meeting with Dawson, Russin alleges that his Walmart
| supervisors fixated on his use of overtime hours versus other workers. Relevant
| to the plaintiffs adverse work events in this case, Walmart maintains a four-step
| discipline policy. (Doc. 40, SOF 4; see also Doc. 41-2, C. Warner Dep., 42:14-
19). On May 15, 2021, Walmart issued Russin a Step 3-level disciplinary action,
skipping two levels under the policy. (Doc. 40, SOF {] 29). Per Walmart,
supervisors disciplined Russin for working overtime and working more than
fourteen hours without approval. (Doc. 43-20, PI. Ex. R., Step 3 Incident Report).
According to the documentation, Russin had been instructed by the operations
manager (Parrado) and the assistant general manager (Warner) not to do so.
(Id.)
After the meeting with Dawson, Russin alleges that his Walmart
| supervisors also fixated on his scar and his health conditions. He asserts that
| Parrado and Cookson made him get a COVID-19 vaccination unlike other
workers, who were not obligated to get one. (Doc. 43-4, Pl. Dep. 64:12-23,
-256:25-257:18) Russin also noticed that he no longer had access to gloves to
use when he cleaned the distribution center. (Id., 64:12-23, 66:12-67:13). But,
per Russin, two other workers in the department had access to gloves. (ld., 83:7-
19).
| Then, on October 17, 2021, Walmart terminated the plaintiff. (Doc. 43-21,
| Term. Form). In a corresponding incident report dated the next day, Waimart
documented that it fired Russin because he worked “unauthorized, excessively
long days (greater than 14 hrs).” (Doc. 43-24, Step 4 Incident Report). Walmart
| cited Russin’s “continued insubordination and failure to follow management
| guidance’ regarding lengthy shifts and overtime and reasons for his termination.
(Id.) Walmart’s termination document also referenced Russin’s prior discipline
regarding working “unapproved overtime and unapproved, excessively long work
days that exceeded 14 hrs.” (Id.)
Russin maintains that he followed facility overtime policies and received
approval to work in different departments. (Id., 134:15-137:23, 154:13-159:25).
He also contends that other workers did not experience the same treatment that
he received, particularly after his one-on-one meeting with Dawson.
For additional context, Walmart maintains a corporate ethics and
compliance department, referred to in this case as “Global Ethics.” Before
termination, Russin anonymously reported the incident with Dawson to that
department. (Id., 126:1-24). He also told a coworker and other Walmart
employees with supervisory or managerial authority. (Id., 123:15-130:25). After
termination, Russin again reported the incident with Dawson along with the
health-related hostilities he experienced in the workplace, including the
vaccination mandate and lack of access to gloves. (See Doc. 43-17, Pl. Ex. O, S.
Schmidt Investigative Report). Walmart's Global Ethics department conducted
interviews following Russin’s termination. (Id.) Walmart’s investigation of itself
concluded that Russin’s allegations were unsubstantiated. (See Doc. 43-19, PI.
Ex. Q, C. Koutsombinas Email 01/07/2022). On the other hand, Walmart’s
investigation also concluded that “facility management did not take ownership for
reporting the allegations that were reported to them,” relative fo Russin’s pre-
termination reporting. (Id.)
Based on the above events, Russin’s amended complaint maintains
several causes of action. Count! asserts that Walmart is liable under the ADA
for disability discrimination, hostile work environment, and retaliation. Count Il
advances claims for sexual harassment, hostile work environment, and retaliation
| pursuant to Title Vil. Count IIf and Count IV mirror the above claims and allege
| that Walmart violated the PHRA.
At the close of discovery, Walmart filed the instant motion for summary
judgment on each of the plaintiff's claims. (Doc. 38). In his brief in opposition,
Russin indicates that he is abandoning his claims for hostile work environment.
(See Doc. 43 at 1, n. 1). While not as clearly indicated, Russin also does not
| contest Wailmart's motion for summary judgment on his ADA retaliation claim and
| its PHRA counterpart. Thus, summary judgment will be granted in favor of
Walmart on these claims without additional discussion. That leaves Russin’s
| sexual harassment, disability discrimination, and Title VII/PHRA retaliation claims
| remaining for disposition.
Jurisdiction
Because this case Is brought pursuant to the ADA and Title VIJ, the court
has jurisdiction pursuant to 28 U.S.C. § 1331. (“The district courts shall have
original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.”). The court has supplemental jurisdiction over
10
plaintiff's PHRA claims pursuant to 28 U.S.C. § 1367(a). (‘In any civil action of
which the district courts have original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so related to claims in the
action within such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.”).
Standard of Review
Walmart has filed a motion for summary judgment seeking dismissal of this
action with prejudice. Granting summary judgment is proper “ ‘if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.’ " See Knabe v.
Boury Corp., 114 F.3d 407, 410 n. 4 (3d Cir.1997) (quoting FED. R. Civ. P. 56(c)).
“[T]his standard provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original),
In considering a motion for summary judgment, the court must examine the
facts in the light most favorable to the party opposing the motion. Int'l Raw
Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir.1990). The
11
| burden is on the moving party to demonstrate that the evidence is such that a
| reasonable jury could not return a verdict for the non-moving party. Anderson,
| 477 U.S. at 248. A fact is material when it might affect the outcome of the suit
under the governing law. Id. Where the non-moving party will bear the burden of
proof at trial, the party moving for summary judgment may meet its burden by
showing that the evidentiary materials of record, if reduced to admissible
evidence, would be insufficient to carry the non-movant's burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party
| satisfies its burden, the burden shifts to the nonmoving party, who must go
| beyond its pleadings, and designate specific facts by the use of affidavits,
| depositions, admissions, or answers to interrogatories showing that there is a
genuine issue for trial. Id. at 324.
“In employment discrimination cases, the summary judgment standard ‘is
applied with added rigor because ‘intent and credibility are crucial issues.’ ”
‘Walden v. Saint Gobain Corp., 323 F. Supp. 2d 637, 641 (E.D. Pa. 2004)(quoting
Stewart v. Rutgers, The State Univ., 120 F.3d 426, 431 (3d Cir. 1997)).
Moreover:
Employment discrimination cases center around a single
question: why did the employer take an adverse
employment action against plaintiff? Because this is clearly
a factual question, summary judgment Is in fact rarely
appropriate in this type of case. Simply by pointing to
evidence which calls into question the defendant's intent,
12
the plaintiff raises an issue of material fact which, if
genuine, is sufficient to preclude summary judgment.
| Marzano v. Computer Sci. Corp. Inc., 91 F.3d 497, 509-10 (3d Cir. 1996)(internal
quotation marks, citation, and explanatory parentheticals omitted).
Analysis
Walmart’s summary judgment motion targets Russin’s claims for sexual
harassment, disability discrimination, and retaliation asserted pursuant to federal
| and state law.* Because Russin claims that his workplace problems began after
| his meeting with Dawson, the distribution center's general manager, the court will
| first consider the evidence relative to Russin’s sexual harassment claims.
1. Sexual Harassment
Russin’'s Title VII/PHRA sexual harassment claims are premised ona
single interaction with the distribution center's general manager, Tim Dawson,
| during a one-on-one meeting. Per Russin, Dawson requested to meet the
| plaintiff after work to “change the outcome” of the decision to cut plaintiff's
overtime. (Doc. 43-4, Pl. Dep., 248:5-249:24). Russin interpreted Dawson’s
statements as a sexual advance. Subsequently, Russin experienced formal
| discipline and Walmart fired him several months later. Russin claims that these
3 Russin’s state law PHRA claims will be interpreted coextensively with his ADA and Tifle VII
claims. See Morgan v. Allison Crane & Rigging LLC, 114 F.4th 274, 220, n. 21 (3d Cir.
2024)(“federal courts should continue to interpret the PHRA in harmony with the ADA.”):
Gomez v. Allegheny Health Servs., Inc., 71 F.3d 1079, 1083-84 (3d Cir. 1995) (noting that the
PHRA is “construed consistently with interpretations of Title VII.”).
13
adverse work events were the result of rejecting Dawson’s advances. In moving
for summary judgment, Walmart argues that, even assuming Russin’s version of
events to be true, Dawson’s request to discuss overtime with the plaintiff after
work occurred in an objectively non-sexual manner. (See Doc. 39, Def. Br. in
Supp. at 1, 12, 16).
The legal framework of Title Vil makes it unlawful to “discriminate against
any individual with respect to [their] compensation, terms, conditions, or
privileges of employment, because of such individual’s...sex.” 42 U.S.C. §
2000e-2(a). “As enacted, Title VII prohibits all forms of discrimination because of
sex, however they may manifest themselves or whatever other labels might
attach to them.” Bostock v. Clayton Cnty., Ga., 590 U.S. 644 at 670. “When a
plaintiff proves that a tangible employment action resulted from a refusal to
submit to a supervisor's sexual demands, he...establishes that the employment
decision itself constitutes a change in the terms and conditions of employment
that is actionable under Title VII.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
753-54 (1998). Specifically:
Unwelcome sexual advances, requests for sexual favors,
and other verbal or physical conduct of a sexual nature
constitute guid pro quo sexual harassment when (1)
submission to such conduct is made either explicitly or
implicitly a term or condition of an individual's employment
or (2) submission to or rejection of such conduct by an
individual is used as the basis for employment decisions
affecting such individual.
14
| Starnes v. Butler Cnty. Ct. of Common Pleas, 50th Jud. Dist., 971 F.3d 416, 427
| (3d Cir. 2020)(quoting Bonenberger v. Plymouth Tp., 132 F.3d 20, 27 (3d Cir.
| 1997): Robinson v. City of Pittsburgh, 120 F.3d 1286, 1296 (3d Cir. 1997),
| abrogated on unrelated grounds by Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006))(brackets omitted).
However, “plaintiffs in a Title Vil action must.,.always ‘prove that the
conduct at issue was not merely tinged with offensive sexual connotations, but
actually constituted discrimination because of sex.’” Doe by & through Doe v.
| Boyertown Area Sch. Dist., 897 F.3d 518, 534 (3d Cir. 2018)(quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). The inquiry in sexual
harassment cases also “requires careful consideration of the social context in
which particular behavior occurs and is experienced by its target.” Oncale, 523
U.S. 75, 81 (1998)).
Upon careful consideration of the record and the context described by
Russin, the plaintiff can only demonstrate that Dawson's statements to meet
outside the workplace were unwelcome, not that they were sexual in any regard.
According to the plaintiff, Dawson stated, “we know you’re sickly[,]” which
was accompanied by a statement of, “we’re going to have to cut your overtime,”
and then, “we can discuss this outside the place. So we can see if we can
change the outcome.” (Id., 175:16—176:22). Per Russin’s testimony, Dawson
prefaced his allegedly sexual advance with a statement referencing the plaintiff's
poor health. Nothing in the prefacing statements attributed to Dawson by the
15
plaintiff references sex or a romantic interaction or is even complimentary in any
way,
Russin also testified:
He said basically we can go out, and he said, and we can
discuss[] this, he says, out here. We can see if we can
change the outcome. That's basically what he said. And |
was like -- | laughed it off. | didn't think anything of it at first.
| thought he was joking. Because | don't know him, |
thought itwas ajoke. You know, it's not like a buddy asking
you to go have a beer that you know. | just met that guy. |
know nothing about this guy.
Then he said to me again, he goes, if you want to change
the outcome, he said, we have to go out if you want change
the outcome of your overtime. And right then | was, like --
and he locked at me and as a man you know when you're
hitting on a woman, a woman's hitting on you. You know,
it's just very uncomfortable and then he got mad.
(Id., 249:3-21).
Thus, according to Russin’s testimony, he interpreted Dawson’s request as
| a sexual advance because of eye contact and body language. Russin described
| it as a look that made the plaintiff uncomfortable and caused him to abruptly end
the conversation. (Id., 248:5-249:24). But Russin’s testimony about that look is
incongruent with a sexual advance:
| Q. Why did you interpret that statement to be sexual?
| A. You know when -- because of the way he looked at
me and the way he said it. | mean, you can see when
somebody says something angry and
condescending and the way he looked at me ~ and
16
the way he was looking at me. It was just strange. It
was creepy to be honest with you, the way he said it.
Why would | have to meet anybody after work to
discuss overtime anyway? | didn't know that was a
requirement of Walmart to discuss some things
outside of work. Why would | have to go somewhere
personal with the man?
(Id., 248:5-249:24).
In light of the above testimony, no reasonable trier of fact could infer a
| sexual advance from an angry look or a condescending look along with the
statements allegedly attributable to Dawson during this single meeting.
| Russin has thus failed to respond to Walmart’s summary judgment motion
evidence demonstrating a genuine issue of material fact. Per Russin, he
had no other interactions with his general manager in the six months between
this meeting and the plaintiff's termination. (Doc. 43-4, Pl. Dep. 255:10-24).
Consequently, Russin has no other evidence whatsoever regarding his
interactions with Dawson taking on any sexual connotations. There are no other
statements, gestures, or physical contact that would suggest that Dawson had a
sexuai interest in the plaintiff. Russin only has his subjective perceptions and
conclusions about a single meeting that, as described by the plaintiff, lacked
other details or context connecting the conversation to the plaintiff's sex.
Speculation that his supervisor “might have had a sexual interest” is insufficient
to defeat summary judgment. See Toth v. California Univ. of Pennsylvania, 844
17
F. Supp. 2d 611, 630 (W.D. Pa. 2012)(citation omitted). Thus, summary
judgment will be granted in favor of Walmart on the plaintiff's Title VII/PHRA
sexual harassment claims.
2. Disability Discrimination
Walmart also moves for summary judgment on Russin’s ADA and PHRA
disability discrimination claims. The ADA makes it unlawful for a covered entity
to “discriminate against a qualified individual on the basis of disability in regard
to,..discharge of employees...and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a).
in the absence of direct evidence of discriminatory treatment, the court
uses the three-part framework from McDonnell Douglas Corp. v. Green, 411 US.
792 (1973) to evaluate the evidence relative to Russin’s claims.4 See Walton v.
Mental Health Ass'n. of Se. Pa., 168 F.3d 661, 667 (3d Cir. 1999).
4 In countering summary judgment, Russin contends that he has direct evidence of
discrimination. Direct evidence is evidence, which, if believed, would prove the existence of
the fact in issue without inference or presumption. Torre v. Casio, Inc., 42 F.3d 825, 829 (3d
Cir. 1994)(citations omitted). The evidence must demonstrate that decisionmakers placed
| substantial negative reliance on an illegitimate criterion in reaching their decision. See
Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 269 (3d Cir. 2010)(citing Walden v.
Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir. 1997); Price Waterhouse v. Hopkins, 490
U.S. 228, 277 (1989) (O’Connor, J., concurring)(quotation marks omitted). Direct evidence
must be “strong enough” for a factfinder to infer an employer's discriminatory attitude and must
be connected to the challenged employment decision. Id. (citation omitted). Additionally, “any
statements made by a defendant's employees must be made at a time proximate to the
challenged decision and by a person closely linked to that decision.” id. (citation omitted).
These requirements create a “high hurdle” for plaintiffs. Id. In this case, there is no testimony
from a decision-maker or documentary evidence_cirectly stating that Russin was disciplined at
18
Under the jaw, Russin must first demonstrate a prima facie case of
discriminatory treatment, that is: (1) he has a disability within the meaning of the
ADA; (2) he is otherwise qualified to perform the essential functions of the job,
with or without reasonable accommodations by the employer; and (3) he suffered
an otherwise adverse employment decision as a result of discrimination. See
Morgan, 114 F.4th at 221 & n. 23 (citing Eshleman v. Patrick Indus., Inc., 961
F.3d 242, 245 (3d Cir. 2020): Taylor v. Phoenixville School Dist., 184 F.3d 296,
306 (3d Cir. 1999)) (quotation marks and bracketing omitted). A prima facie case
simply means that the plaintiff presents “a claim that on first sight has enough
merit to proceed.” Fowler v. AT&T, Inc., 19 F.4th 292, 298-99 (3d Cir. 2021)
(citing Walton, 168 F.3d at 668).
In its motion for summary judgment, Walmart directly challenges the third
element, that is, whether Russin suffered adverse employment actions because
of a disability. (Doc. 39, Def. Br. in Supp at 5-6). Before addressing that element
of the plaintiff's prima facie case, however, the court must address whether
Russin has a disability within the meaning of the ADA because Walmart does not
outright concede that issue in its moving papers. Instead, in phrasing its
work or fired because he has a disability. Rather, Russin’s disability discrimination case relies
upon evidence requiring inferences of discrimination. The court will thus apply the McDonnell
Douglas burden-shifting framework.
19
arguments, Walmart seeks to restrict Russin’s ADA and PHRA claims solely to
| disabilities related to the removal of his esophagus. (See Doc. 39, Br. in Supp. at
5). Moreover, Waimart also challenges whether Russin’s amended complaint
sufficiently placed them on notice of a “regarded as” disability claim. (Doc. 39, Br.
| in Supp. at 5, n. 2). Russin’s amended complaint, however, asserts
| “actual/perceived/record of’ ADA claims. (Doc. 20, Am. Compl, Count |, □□ 56).
Russin thus counters that he qualifies for protected status under the different
manners the term “disability” is defined by the ADA, including the definitions
related to a “regarded as” disability claim. (Doc. 43, Pl. Br. in Opp at 10-13).
Relevant to resolving the issues raised in Walmart’s motion, the definition
of “disability...shall be construed...in favor of broad coverage of individuals...to
the maximum extent permitted” by the terms of the ADA. 42 U.S.C. §
12102(4)(A). A plaintiff has a “disability” as defined by ADA “if they: (1) have ‘a
physical or mental impairment that substantially limits one or more’ of their ‘major
life activities’; (2) have ‘a record of such an impairment; or (3) are ‘regarded as
having such an impairment.’ ” Morgan, 114 F.4th at 221 (quoting 42 U.S.C. §
12102(1)). By law, major life activities include “performing manual tasks...and
working.” 42 U.S.C. § 12102(2)(A). “[A] major life activity also includes the
operation of a major bodily function, including but not limited to, functions of the
20
immune system,” as well as digestive and bowel functions. 42 U.S.C. §
12102(2)(B).
| As defined:
| An individual meets the requirement of “being regarded as
having such an impairment” if the individual establishes
that he or she has been subjected to an action prohibited
under this chapter because of an actual or perceived
physical or mental impairment whether or not the
impairment limits or is perceived fo limit a major life activity.
42 U.S.C. § 12102(3)(A)(emphasis added).
Consequently, by the terms of the statute, “ ‘the requirements for a prima
facie ‘regarded as’ claim are less demanding’ than those for an actual disability
claim.” Morgan, 114 F.4th at 224 (quoting Mancini v. City of Providence by &
through Lombardi, 909 F.3d 32, 46 (1st Cir. 2078)).
Here, Russin has responded to the motion for summary judgment with
evidence demonstrating a genuine issue of material fact as to whether he meets
the definitional requirements for a “regarded as” disability claim through
reference to his deposition testimony and that of his former Walmart supervisors.
Russin’s supervisors, including Dawson, were under the impression that he had
cancer or was a cancer survivor. (Doc, 43-10, J. Parrado Dep. 20:22-—21:5; Doc.
43-14, R. Williams Dep. 21:3-7; Doc. 43-16, T. Dawson Dep. 48:10-21). Others
like Warner, the assistant general manager, testified that they were aware that
21
| Russin sought overtime to pay for “bills...associated with either medical care or
medicine.” (Doc. 43-15, C. Warner Dep. 24:18—25:1).
According to Russin, his esophagectomy scarring was also a topic of
frequent reference in the workplace and was brought up immediately by his
supervisors after the encounter with Dawson. (Doc. 43-4, P!. Dep. 85:8-88:2),.
| He testified that Dawson called him “sickly” during that meeting. (Id., 175:16-19).
| Dawson then wanted a “write-up” about the plaintiffs scar. (Id., 117:12-118:4).
| Russin also testified that his supervisors singled him out regarding COVID-
19 vaccination. He detailed how supervisors addressed his health differently
than other employees, particularly upon his return from COVID-reilated leaves of
| absence. (Id., 165:12-170:5). Per his testimony, Russin missed work due to
| COVID-19 policies in the workplace. (Id., 163:11-165:11). Russin took or was
required to take as many as five (5) COVID-19 leaves of absence during his
employment.® (Id., 162:18-165:3). Russin contends that he received disparate
treatment relative to his real or perceived conditions and COVID-19, particularly
from Cookson and Parrado, his supervisors. (Id., 167:1-170:5). Per Russin's
deposition testimony, Parrado told him, at one point, “you need to get the COVID
5 Parrado, the maintenance operations manager, testified that Russin’s COVID-19 leaves of
absence spanned two weeks each time. (Doc. 43-10, Pl. Ex. H., J. Parrado Dep., 28:22—-29:2).
22
shot...because you more than anybody needs to get it.” (Id., 89:5-22). Parrado
then allegedly told Russin that he “can’t be in here with COVID around” and that
the plaintiff had to get the vaccine, or he would not have a job af the distribution
center. (See id. 89:5-22, 256:24—257: 18).
in their depositions, these supervisors denied treating Russin differently.
Parrado testified that he did not instruct Russin to get a COVID-19 vaccine. (Doc.
43-10, Ex. H., J. Parrado Dep. 29:3-6). Rather, per Parrado, it was the plaintiff's
idea to obtain that vaccination. (Id.) Parrado also testified that Cookson, the
plaintiff's direct supervisor, was present for that conversation. (Id. 29:7-21).
Walmart’s post-termination investigation into Russin’s complaints included
interviews with Cookson and Parrado. (Doc. 43-17, ECF p. 12). The Walmart-
employed investigator reported that Parrado “spoke with Russin when Russin
returned from a Covid-19 [leave of absence] and asked Russin what [he] planned
to do differently in the future to prevent another” COVID-related leave. (Id.)
Cookson recalled that meeting conversation differently. id.) Per the Walmart
investigator, Cookson relayed that he and Parrado asked the plaintiff if there was
anything they could do to help. (Id.) For his part, Russin testified that he
obtained a COVID-19 vaccine to pacify his supervisors and that he did not have
According to Russin, Parrado also told the plaintiff that he could not work overtime “due to
[his} condition.” (Doc. 43-4, Pl. Dep., 251:14—-252:9). When plaintiff then brought up others
being able to work overtime, Parrado allegedly told the plaintiff to go clean bathrooms. (ld.).
23
a choice if he wanted to keep his job. (Doc. 43-4, Pl. Dep., 258:12-20). Thus,
considering the existence of Russin’s neck scarring, his perceived medical
conditions, and the presence of COVID-19 in this workplace, there are conflicts in
the evidence as to whether the plaintiff was regarded as having physica!
impairments related to his major bodily functions, including the functions of his
immune system.
The above discussion blends into Walmart’s core argument against
Russin’s prima facie case, that is, Walmart contends that Russin did not suffer
adverse employment actions because of his disabilities. The record, however,
reflects genuine issues of material fact. As a prime example, Russin’s COVID-
related leaves of absence worked their way into internal discussions of his
termination. The summary judgment record contains messages between
Cookson (plaintiff's direct supervisor) and Warner (the assistant general
manager) dated October 18, 2021, one day after Walmart fired the plaintiff. (Doc.
43-22, Pl. Ex. T, ECF p. 5). The following exchange occurred:
Cookson: When | walked Mr. Russin out yesterday he
told me he was going to call home office and
his lawyer, and he hopes we have good
lawyers.
Warner: nice. what did we finally term him for?
Cookson: They [sic] last two weeks that he worked
before his 12th covid leave he worked over 14
hours 5 out of the 6 days
24
Warner: after being told not to do it on multiple
| occasions. how did you write it up in his ptl?’
| Cookson: | have documentation of all his punches if the
| need arises
| Warner: yep, make sure you have everything
documented and it is written up clearly in his
| PTL. for the step 4.
| Cookson: Associate had various days from 9/18, 9/19,
| 9/20, 9/25, 9/27 over 14 Hours. Associate
| was previously addressed of same nature with
| Step 3
| Warner. | would write more and make it very clear what
| he did. | can help you if you need it.
| (Id.)(formatting modified)(all capitalization and punctuation errors
| included).
In these messages, Cookson referred to Russin’s “12th covid leave”
occurring just prior to his termination. Coupled with Russin’s testimony about his
medical conditions and his treatment from supervisors based on their beliefs
about his conditions, the plaintiff has responded to the motion for summary
judgment with sufficient evidence that can be used by a jury to connect his firing
to disability discrimination.
| ? PTL refers to for Walmart's performance tracking log system. (See Doc. 43-15, C. Warner
Dep. 63:19-23). A Walmart employee tasked with reviewing Russin’s internal complaint
ultimately found it “out of the ordinary” how the plaintiff's disciplinary actions were documented
in the defendants’ system. (Doc. 43-25, D. Pohren Email 11/11/2021, ECF p, 2),
25
At the second stage of the McDonnell Douglas framework, the burden of
production shifts to Walmart to articulate legitimate, non-discriminatory reasons
for its actions. See Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 255
(1981). Here, Walmart documented that it fired Russin because he worked
“unauthorized, excessively long days (greater than 14 hrs),” (Doc. 43-24, Wal-
Mart, Step 4 Incident Report). Additionally, Walmart cited Russin’s “continued
insubordination and failure to follow management guidance” regarding overtime
and lengthy shifts as reasons for his termination. (ld.) Walmart’s termination
document also referenced Russin’s prior discipline regarding working
“unapproved overtime and unapproved, excessively long work days that
exceeded 14 hrs.” (Id.) Walmart has thus met their burden here.
To defeat summary judgment at the third McDonnell Douglas step, Russin
| must then demonstrate that the proffered reasons were not the true reasons for
the employment decision, i.e., that the reasons were pretext for intentional
discrimination. Burdine, 450 U.S. at 255. “To establish pretext, ‘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.’ ” Qin v. Vertex, Inc.,
26
100 F.4th 458, 474-75 (3d Cir. 2024)(quoting Fuentes v. Perskie, 32 F.3d 759,
764 (3d Cir. 1994)).
As for a jury believing that disability discrimination was the reason for
Russin’s discipline and termination, the court considers “the totality of the
circumstances to determine whether an employer's proffered nondiscriminatory
reason is pretext for a discriminatory motive.” Canada v, Samuel Grossi & Sons,
Inc., 49 F.4th 340, 347 (3d Cir. 2022). This may include evidence that “the
employer treated other, similarly situated persons not of his protected class more
favorably[.]” Fuentes, 32 F.3d at 765. The circumstances may also include
“antagonism by the employer, inconsistencies in the reasons the employer gives
for its adverse action, and any ofher evidence suggesting that the employer had
a [discriminatory] animus when taking the adverse action.” See Canada, 49 F.4th
at 347 & n. 44 (emphasis added)(quoting Daniels, 776 F.3d at 196)(further
citations omitted). Evidence supporting the plaintiffs prima facie case can also
be considered. Id. (citing Farrell, 206 F.3d at 286; Jalil v. Avdel Corp., 873 F.2d
701, 709, n. 6 (3d Cir. 1989)).
| To check these boxes, Russin counters Walmart’s arguments with a broad
array of evidence that a jury may use to find pretext for discrimination. ® The
® Russin asserts that four other distribution center employees regularly worked in excess of
fourteen hours and were not disciplined. Walmart, however, rigorously disputes whether these
27
court need not reiterate all the evidence discussed above regarding plaintiff's
prima facie case. But a reasonable, rational jury may conclude from the
messages exchanged by Cookson and Warner that Russin’s actual or perceived
disabilities were the motivating or determinative causes of Walmart’s decision to
terminate the plaintiff. These messages cut both ways in this case. While
Warner's “what did we finally term him for?” could be read to suggest that Russin
| was frequently insubordinate regarding overtime or long shifts, a jury could also
| consider that evidence as proof Walmart supervisors had been engineering legal
shelter to terminate Russin for his disabilities, real or perceived, particularly
considering Cookson’s reference to his “12th covid leave.”
individuals are appropriate comparators to show pretext. Under the law, “[clomparator
employees need not be identical but must be similarly situated in ‘all material respects.’ ” Qin,
{00 F.4th at 474 (citing In re Tribune Media Co., 902 F.3d 384, 403 (3d Cir. 2018))(further
citations omitted). “Factors that are relevant include whether the employees dealt with the
same supervisor, were subject to the same standards, and shared similar job responsibilities.”
Id. (citations omitted). “An employee who holds a different job title or works in a different
department is not similarly situated.” Id. (citing Mandel v. M & Q Packaging Corp., 706 F.3d
157, 170 (3d Cir. 2073)).
Here, Russin has not demonstrated that these other workers were similarly situated. While
they may have been working under the same general manager and assistant general
manager, there is no evidence that they dealt with the same area or department managers,
that is, Cookson and Parrado. Russin himself testified that the other workers were employed
in different departments. (Doc. 43-3, Pl. Dep. 68:6-69:10). And the records he provided to
oppose summary judgment indicate that none of these individuals were custodians. Rather,
these employees held job titles like “Area Manager-Floor (Grocery),” “G_Unloader/Processor,”
“AssetPrictnAsscte-AllDC/FC,” and “Groc Lift Driver-Meat&Produce” (Docs. 43-26 to 43-29),
Based on Third Circuit precedent, the court cannot consider this comparator evidence.
28
Warner, the assistant general manager, also testified that he never met
Russin personally. (Doc. 43-15. C. Warner Dep. 17:5-10). A jury may take the
messages and Warner's testimony and conclude that Russin’s insubordination
over work hours was a legitimate reason for termination. Or they may approach
these facts with skepticism as to why Warner would critique the notations in
plaintiff's personnel record and offer to help a maintenance area manager draft
something more sufficient.®
Russin has marshalled other evidence that a reasonable jury could use to
reject Walmart’s reasoning for his termination. Prior to Parrado’s tenure as the
distribution center's maintenance operations manager, Russin was supervised by
Robert Williams in that role until December 2020. (Doc. 43-14, 13:5-21, 45:8-19,
48:6-8). Williams recalled that Russin worked overtime in different departments
with his approval or approval of the appropriate area manager, (Id. 22:24—23:22).
Williams testified that had no issues with Russin’s performance and did not recall
® Russin also cites to inconsistencies in the oral and written reasons Walmart provided for his
firing. Per documents attached to oppose summary judgment, Waimart gave the Pennsylvania
Department of Labor a slightly different reason for Russin’s termination. According to this
record, Walmart indicated that the “[a]ssociate worked overtime without proper approval.”
(Doc. 43-32). There is no reference to working over fourteen (14) hours or insubordination in
this form provided to the Commonwealth as part of an unemployment compensation matter.
Russin also testified that he was verbally told he was terminated due to working overtime with
no reference to working more than fourteen hours. (Doc. 43-4, PI. Dep. 154:13-159:20).
Additionally, one of Russin’s co-workers testified that, when overtime was available,
employees of the distribution center could work sixteen (16) hours in one shift. (Doc. 43-13,
Pl, Ex. K., S. Shay Dep. 15:22—16:11).
29
any specific instances where he or others had to counsel the plaintiff for improper
use of overtime. (id. 13:5-14:2, 16:3-7, 17:16-18:3, 20:13:17, 49:10-21).
But under the supervision of Parrado and after the encounter with Dawson,
the tenor of the workplace changed, per the plaintiff. Russin testified that
Dawson and Parrado were very close. (Doc. 43-4, PI. Dep. 120:4-25). After his
meeting with Dawson in April 2021, Russin reported seeing Dawson approach
Parrado. (Doc. 43-4, Pi. Dep., 66:23-67:13, 176:17-22; 249:25-251:4). Russin
testified that his health then became a matter of concern to his supervisors. (Id.
85:3-86:1). Parrado asked Russin about the scar on his neck. (Id.) Parrado also
then told Russin that he could no longer accumulate overtime due to his
condition. (Doc. 43-4, Pl. Dep, 249:25-252:9 (reviewing Doc. 43-17, S. Schmidt
Investigative Report, at ECF p. 8)). Russin believed that Parrado’s directives
came from Dawson and that the same directives were applied by the plaintiff's
first-line supervisor, Cookson. (Doc. 43-4, Pl. Dep., 107:22—110:7).
Prior to his termination, Russin received formal discipline for working
overtime and working more than fourteen hours in one shift without approval.
(Doc. 43-20, Step 3 Incident Report). This earlier discipline is referenced in his
termination documents. (Doc. 43-24, Step 4 Incident Report). In all instances,
Russin recalled asking if overtime was available and receiving approval from
30
managers in other departments to work additional hours in those areas of the
facility. (Doc. 43-4, PI. Dep. 132:17-139:13, 155:11-159:20).
Russin also described working approved overtime outside of his
department with other individuals until “every truck was out.” (Id. 68:9-16, 70:2—
71:20). Otherwise, per the plaintiff, there would be no product in Walmart’s retail
stores. (Id., 158:22—20). He also illustrated the “revolving door” of employees in
different departments that could not handle the work. (Id., 136:13—-137:23).
| Russin further described a frequent “jockeying around” of supervisors with at
| least two of his managers being terminated during his tenure. (Id., 65:14-66:7,
106:25-107:10, 227:14—228:4). He referred to COVID-19 as creating “a crazy
| situation” in the workplace. (Id. 83:7—84:6). Similarly, a distribution center
| manager recalled the personnel and supply-chain issues created by the
| pandemic. (Doc. 43-33, E. Hernandez Dep., 28:15-29:22). And prior to being
escorted off the premises, Russin questioned Cookson regarding what he
believed to be a paradox in his situation. (Doc. 43-4, PI. Dep., 244:6~245:13).
Per Russin, he told Cookson that the distribution center was “crying, asking
people for overtime. You have such turnaround, But the other departments,
they're asking me to work.” (id.) Consequently, upon consideration of all the
evidence discussed in this memorandum, a jury could disbelieve that Walmart
fired the plaintiff for working too many hours in a retail distribution center during
31
the COVID-19 pandemic. Walmart’s motion for summary judgment on the
plaintiff's disability discrimination claims will thus be denied.
3. Retaliation
The last matter to address relates to Russin’s retaliation claims, which he
| asserts pursuant to the ADA, Title VII, and PHRA. (See Doc. 20, Am. Compl.,
| Counts I-IV). As noted above, Russin did not counter Walmart’s arguments
regarding disability-related retaliation. Rather, plaintiff makes clear in his brief in
opposition that he “pursues his retaliation claims based upon his protestations to
management regarding [Dawson’s] sexual advance toward him[.]” (Doc. 43, PI.
Br. in Opp. at 24). Accordingly, Walmart’s motion for summary judgment will be
granted as to the disability-related retaliation claims in Count | (ADA) and Count
Ill (PHRA).
As for Russin’s remaining retaliation claims premised upon Title VII and the
PHRA, those claims are also analyzed through the McDonnell Douglas
framework where the plaintiff relies upon circumstantial evidence. See Canada,
49 F.4th at 346 (citing Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006)).
To establish a prima facie case for retaliation, the plaintiff must demonstrate “(1)
that he engaged in protected conduct; (2) that he was subject to an adverse
employment action subsequent to such activity; and (3) that a causal link exists
32
between the protected activity and the adverse action.” Qin, 100 F.4th at 476
(quoting Barber v. CSX Distrib. Servs., 68 F.3d 694, 701 (3d Cir. 1995)).
For summary judgment purposes, Walmart concedes the first two elements
of plaintiff's prima facie case, but challenges whether Russin can show
| causation. Since the court has already concluded that Walmart has met its
| burden to show legitimate, non-discriminatory reasons under the second stage of
McDonnell Douglas, Russin must also demonstrate that those reasons are
pretext for retaliation. Accordingly, Russin is obligated to “establish causation at
two stages of the case: initially, to demonstrate a causal connection as part of the
prima facie case, and at the final stage of the McDonnell Douglas framework to
satisfy [his] ultimate burden of persuasion by proving pretext.” Carvalho-Grevious
v. Delaware State Univ., 851 F.3d 249, 257 (3d Cir. 2017). Under the law, “[t]he
plaintiff... cannot establish that there was a causal connection without some
evidence that the individuals responsible for the adverse action knew of the
plaintiff's protected conduct at the time they acted.” Daniels, 776 F.3d at 196
(citations omitted).
In challenging causation, Walmart argues that Cookson and Parrado
(plaintiff's lower-level supervisors) made the decision to terminate Russin, not
Dawson (the facility general manager). Walmart has also supplied declarations
indicating that Cookson and Parrado were not aware of Russin’s reports about
33
Dawson until after the plaintiff's termination. (Doc. 39, Def. Br. in Supp. at 20; see
also Doc. 41-9, Def. Ex. I, J. Cookson Decl. 9] 5-8: Doc. 41-10, Def. Ex. K, J.
Parrado Decl. J] 6-9; Doc. 41-11, T. Dawson Decl. §] 6).
Russin counters that there is evidence of record demonstrating that
Cookson and Parrado knew about the plaintiff's reporting of the incident with
Dawson, citing his own testimony and information contained in Walmart’s post-
termination investigative report. (Doc. 43, PI. Br. in Opp. at 24). Walmart
counters that the plaintiff's citations to the evidence are mischaracterized. (Doc.
51, Def. Reply Br. at 12-15). After a careful review of the record on causation,
summary judgment on Russin’s Title VH/PHRA retaliation claim will be granted.
First, there is no evidence that Russin’s anonymous complaint about
Dawson to Walmart’s Giobal Ethics department was actually investigated.
Russin testified that he reported the incident and never heard back from Walmart
corporate. (Doc. 43-4, Pl. Dep. 126:1:14). Walmart takes the position that it
could not find a “recorded ticket from Russin or any anonymous reporter
regarding a similar concern against Dawson.” (Doc. 43-17, Pl. Ex. O, S. Schmidt
Investigative Report, ECF p. 14).
As for reporting the matter to other Walmart employees and supervisors,
Russin testified that he told: 1) Sebastian Shay, a co-worker; 2) Robert Williams,
the plaintiff's former second-level supervisor who had moved on to a different
34
Walmart distribution center; 3) Elsa Hernandez, the distribution center’s
Environmental, Health, and Safety manager; and 4) another manager that did not
want to be involved. (Doc. 43-4, Pl. Dep. 123:5-124:15). Russin could not recall
if he told anyone else. (Id., 124:16-21). When Walmart investigated the incident
post-termination, Russin reported that he told Shay, Williams, and Carl McGinley,
a grocery area manager, about the incident. (Doc. 43-17, S. Schmidt
Investigative Report, ECF p. 3). But there is no evidence of record that Shay,
Williams, Hernandez, or McGinley then told Cookson, Parrado, or even Dawson
about Russin’s sexual harassment complaint.
Russin cites to his own deposition testimony for the proposition that he
specificaily told Parrado, his second-level manager, about what happened with
Dawson. (Doc. 43, Pl. Br. in Opp. at 24; Doc. 43-2, P|. Counterstatement of
Material Facts {[ 39). This argument is not supported by the record, however.
In opposition to Walmart’s motion, Russin cites to the following testimony:
Q@. Do you believe that Mr. Parrado was discriminating
against you because Mr. Dawson told him to?
A. — | believe that.
Q. And do you believe that Mr. Parrado was retaliating
against you for any reason?
A. Because of Mr. Dawson, absolutely. Because | said
about what happened with Mr. Dawson.
(See Doc. 43-4, Pl. Dep, 120:17-25)
35 .
In context, Russin was testifying about Parrado telling the plaintiff to get a
COVID-19 vaccination and describing how Parrado would not provide the plaintiff
with a motorized cart to carry boxes. (Id. 118:5-120:16). Thus, even reading his
deposition in a light most favorable to the plaintiff's position, Russin did not testify
that he reported sexual harassment to Parrado.
| Additionally, Russin cites to Walmart’s post-termination investigation report
| for the proposition that Cookson, his first-level manager, was aware of his sexual
| harassment complaints. (Doc. 43, PI. Br. in Opp. at 24; Doc. 43-2, PI.
| Counterstatement of Material Facts 7 39). Walmart’s report attributes the
Hollowing statement to the plaintiff: “Russin said when Parrado and Cookson
| spoke with Russin about the Covid-19 vaccination, he told Cookson he did not
| know why management targeted him, and Cookson said the General Manager
(Dawson) thinks you're (Russin) cute.” (Doc. 43-17, S. Schmidt Investigative
Report, ECF p. 16). Cookson denied making that comment during Walmart’s
investigation. (Id.)
Although Russin and Cookson took contrary positions during the
| investigation, Russin’s ostensible statements to the Walmart investigator about
| Cookson conflict with his deposition testimony. In Russin’s deposition, he
testified that a different manager made the comment about Dawson thinking the
plaintiff was “cute,” that is, the supervisor he referenced throughout his testimony
36
that did not want to be involved. (Doc. 43-4, Pl]. Dep. 180:1-181:21). In his
opposition papers, Russin identifies this individual as Carl McGinley, not
Cookson. (Doc. 43-2, Pl. Counterstatement of Material Facts { 40 & n. 16 (citing
Doc. 43-4, Pl. Dep 180:4-21)).
All of these conflicts ultimately do not create a genuine issue of material
fact on causation. Per the summary judgment record, McGinley played no role in
the plaintiff's formal discipline in May 20271 or in terminating the plaintiff in
October 2021. And even if the court credited Russin’s statement to the Walmart
investigator and not his deposition testimony, Cookson’s alleged statement to
Russin does not demonstrate that Cookson was aware of the plaintiff's protected
activity in reporting sexual harassment. For summary judgment purposes, the
court must reject the nonmoving party’s bare assertions, conclusory allegations,
suspicions, and vague statements. See Nitkin v. Main Line Health, 67 F.4th 565,
571 (3d Cir. 2023)(citations omitted). Since the causation aspect of Russin’s
retaliation case rests on these grounds, summary judgment will be granted in
favor of Walmart on those claims.
Conclusion
For the reasons stated above, Walmart’s motion for summary judgment
(Doc. 38) will be granted in part and denied in part. Summary judgment wiil be
granted in favor of Walmart on the plaintiffs Title VII/PHRA claims for sexual
37
harassment, hostile work environment, and retaliation in Counts [| and [V of the
amended complaint. Summary judgment will also be granted in favor of
| Walmart on the plaintiff's ADA/PHRA hostile work environment and retaliation
| claims in Counts | and Ill. The motion for summary judgment will otherwise be
denied as to Russin’s ADA/PHRA claims for disability discrimination.
Additionally, Walmart’s motion to strike Russin’s counterstatement of material
facts (Doc. 48) will be denied. An appropriate order follows. fo
| Date: Aj AS. 2. U LX
/ i JUDGE JULIA K. MUNLEY
United States District Court
38