# RODRIGUEZ v. GRSI GOVERNMENT RESOURCES SOLUTIONS, INC

> District Court, M.D. Pennsylvania · March 20, 2025

URL: https://www.frixlaw.com/law-library/cases/10828111

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 20, 2025
- **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/10828111

## How later opinions describe it (automated extraction)

- emphasizing that word “shall” in Section 2000e-5(e)(1) makes the act of filing a 17 charge within the specified time period mandatory

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RAYMOND RODRIGUEZ, | : No. 3:22cv1362
Plaintiff :
: (Judge Munley)
V. :
LOYAL SOURCE GOVERNMENT :
SERVICES, :
Defendant :

MEMORANDUM
Plaintiff Raymond Rodriguez contends that he experienced age, race, and
national origin discrimination after being placed to work with the United States
Army and other defense contractors by Defendant Loyal Source Government
Services (“Loyal Source’) at the Tobyhanna Army Depot (“Army Depot”).
Following his termination, Rodriguez filed suit against Loyal Source pursuant to
Title VII of the Civil Rights Act of 1964 (“Title VII), 42 U.S.C. § 2000e, ef seq.,
and the Age Discrimination in Employment Act (ADEA”), 29 U.S.C. § 621, ef

seg. After Loyal Source discovered an error in Rodriguez’s charge of
discrimination with the Equal Employment Opportunity Commission (“EEOC”)
regarding his date of termination that implicated the statutes’ time limitations, the
plaintiff added a claim for race discrimination pursuant to 42 U.S.C. § 1981
(“Section 1981”) through a court-permitted amended complaint. Before the court

is Loyal Source’s motion for summary judgment. The motion has been fully
briefed and is ripe for disposition.
Background
Loyal Source specializes in government contract services, including the
United States Army.' (Doc. 42, SOF J 106). Relevant here, the United States
Army Medical Material Command, Medical Maintenance Equipment Directorate
awarded a contract to Goldbelt Frontier, LLC (“Goldbelt’) to perform various
services. (Id. J 107). In 2019, Goldbelt executed a contract with Loyal Source
for Loyal Source to perform portions of the prime contract that Goldbelt had with
the United States Army. (Id. 9108). Under the subcontract, Loyal Source
provided personnel and services in various locations, including at the Army
Depot in Tobyhanna, Monroe County, Pennsylvania. (Id. 110). Loyal Source is
based in Orlando, Florida. (ld. J 106).
Loyal Source hired Rodriguez on April 1, 2020 to work as a biomedical
technician in support of the subcontract with Goldbelt at the Army Depot. (Id. {ff
9,111). Rodriguez's position involved testing and repairing equipment for the
United States Army. (Id. 717).

1 When possible, the court references Loyal Source’s statement of material facts (“SOF”), (Doc.
42), for facts that are not disputed in Rodriguez’s answer to that statement, (Doc. 45).
Otherwise, this memorandum cites to portions of the summary judgment record supplied by
the parties. All facts from the record are construed in a light most favorable to plaintiff as the
nonmoving party. See Danieis v. Sch, Dist. of Philadelphia, 776 F.3d 181, 187 (3d Cir.
2015){citation omitted).

Rodriguez worked in a facility with U.S. Army personnel and other
contractors. (Doc. 40-6, Def. Ex. P. Pl. Memo to Loyal Source, May 5-6, 2021 at
ECF p. 3, 8). As many as four different defense contractors provided technicians
at the site. (id.) Per Rodriguez, the other technicians were “all white and
younger’ than the plaintiff. (ld., ECF p. 8).
Timothy Bush supervised Rodriguez's work at the Army Depot. (Doc. 42,
| SOF { 11). Bush did not work for Loyal Source.? (Id. 9 13). Nonetheless, per
Rodriguez, Loyal Source told him to report to Bush, who managed all the
| subcontractors at the worksite. (See Doc. 40-4, Def. Ex. F, Pl. Dep. 07/20/2023
40:12-47:18), Rodriguez also reported to two other individuals, Dan Hicks and
Bernie Topa. (Doc. 42, SOF J 14). Neither Hicks nor Topa worked for Loyal
Source. (Id. J] 15).
Rodriguez contends that he experienced race and national origin
discrimination by Bush and his coworkers. Rodriguez testified that, on his first
day of work, he had to park his vehicle at the main gate of the facility. (Doc. 40-3,
Def. Ex. C., Pl. Dep. 06/01/2023, 190:15-192:6). His vehicle displayed the flags
of Cuba, the Dominican Republic, and Puerto Rico. (Id.) As Bush escorted

2 Rodriguez’s amended complaint alieges that Bush worked for former defendant GRSI
Government Resources Solutions, Inc. (“GRSI”). (Doc. 34 § 10). Rodriguez previously agreed
io dismiss his complaint with prejudice on all counts against GRSI. (Docs. 13, 15).

Rodriguez from the gate, the plaintiff's supervisor allegedly remarked, “another
Puerto Rican[.]” dd.) On a different occasion, after overhearing Rodriguez play a
voicemail from his wife, Bush allegedly said, “that’s Spanish, we don't speak
Spanish here in this place,” (see id. at 197:6-14), or “[s]hut that Spanish trash
up!” (Doc. 40-6, Def. Ex. P. Pl. Memo to Loyal Source, May 5-6, 2021 at ECF p.
9).
Rodriguez also testified that he experienced discrimination by a Loyal
Source coworker, Mike Tagliari. Tagliari complained about the aroma of
Rodriguez’s homemade lunches and made critical remarks about “Spanish food,”
as did other unnamed technicians working for other contractors. (Doc. 40-3, Def.
Ex. C., Pl. Dep. 06/01/2023, 168:14-178:8). Bush Joined in with some of the
criticism. Per Rodriguez, Bush told the plaintiff, “take that stinking food out of
here, makes me sick, go eat in the back of the warehouse.” (Id, 193:6-19).
Rodriguez contends that his supervisor and coworkers ostracized him based

upon his race and national origin. (ld. 203:12-18).
Rodriguez also alleges that he experienced age discrimination while
working at the Army Depot. Rodriguez was 65 years old when Loyal Source
hired him and placed him there. (id. 46:3-5). On Rodriguez’s first day, Bush also
allegedly said: “[YJou’re the oldest guy in here.” (Id. 215:4-17). Per plaintiff,

throughout the assignment, Bush said things like, “at that age, you should be
retired.” (ld. 215:19-216:16).
Rodriguez testified that he worked slowly and carefully and did not cut

corners. (Id, 208:22-210:4). Both Bush and Tagliari told Rodriguez that he
worked too slowly. (Id., 208:22-210:4, 216:24-217:12). Additionally, as an
example of age discrimination, Rodriguez testified that he drove "20 miles an
hour” on the interstate. (id. 210:5-214:3). Per Rodriguez, Tagliari criticized the
plaintiff's driving and referred to the plaintiff as “Mr. Magoo.” (Id.)
Additionally, Rodriguez's assignment involved “TDY,” that is, temporary
duty away from the Army Depot. (Id. 217:13-218:15). Allegedly, Bush told
Rodriguez that he could not “go TDY” because the plaintiff was “too old and too
slow.” (Id. 219:2-5). Rodriguez observed that Bush treated other technicians
differently regarding their pace. (Id. 222:16-223:3). In his deposition, Rodriguez
admitted that he worked slower than the other technicians, and that it was due to
his age. (Doc. 42, SOF ¥ 46)
On July 24, 2020, about three months into Rodriguez's assignment, Bush
expressed concerns about the plaintiff's performance in an email to Goldbelt’s

program manager, Shon McManus. (Id. 18). Bush's e-mail referenced his
observations of Rodriguez's “increasingly slow pace,” “lack of understanding,”
and “constant [required] support and assistance with even minor repairs.” (Doc

42-3, Def. Ex. D, T. Bush Email 07/24/2020, ECF p. 362). Bush wrote: “As it
| stands, | do not feel he would be any benefit to a TDY team due to the wide
| variety of equipment that he does not display any capacity for, and his pace
would impede the scheduled completion of any team he is with.” (Id.)
On August 6, 2020, Rodriguez reported to Loyal Source that he had slipped
and fallen while at work. (Id. {| 38). Per Rodriguez, Bush told the plaintiff, “you
didn’t fall because of the water, you fell because [you’re] old.” (Doc. 40-4, Def.

| Ex. G, Pl. Dep. 07/20/2023 45:7—46:8). And two years later, during his workers’
compensation case against Loyal Source, Rodriguez testified that this injury
| impacted his work performance because he could not lift or carry heavy objects,
could not stand as long, and needed rest breaks. (Doc. 42, SOF J[fj 39-40).
By September 3, 2020, Bush advised McManus at Goldbelt through

| another email that “not much has changed.” (Doc 42-3, Def. Ex. D, T. Bush Email

| 09/03/2020, ECF p. 361). Bush wrote that he had taken over inputting
Rodriguez’s information into a work-entry system due to the plaintiff's errors. (Id.)
Bush also documented Rodriguez's issues completing background investigation
forms (“e-QIP”) and the efforts Bush and others offered the plaintiff to no avail.
To work at the Army Depot, Rodriguez needed to complete the e-QIP.
(Doc. 40-2, SOF ¥ 23). Five months into the assignment, Bush did “not believe

there to be any reason for further attempts.” (Doc 42-3, Def. Ex. D, T. Bush Email
09/03/2020, ECF p. 361).
That same day, Shon McManus from Goldbelt forwarded Bush’s e-mail to
Jason Cohen, Loyal Source’s Vice President with the message:
Can your team please address the performance issues that
continue to over-burden my site lead. Besides [plaintiff's]
lack of productivity, the fact that [Bush] must enter
information into the system of record for him is a major
issue. | would like to avoid having to remove him from the
contract, but we cannot continue with status quo. Your
assistance is appreciated.
(Id. ECF p. 360),
Cohen forwarded the email chain to Loyal Source’s account manager, Mary
Varouh, with a “let's discuss.” (Id.) Varouh then forwarded the message to Sara
Hernandez in Loyal Source’s human resources (“HR”) department. (Id.) Varouh
wrote: “] obviously need to do a counseling with him about job performance, but
the other issue is his inability to do this on line [sic] questionnaire that literally
every employee has been able to complete.” (Id.)
On September 4, 2020, Loyal Source sent Rodriguez an e-mail
regarding the e-QIP:
This is a standard procedure that all employees on the
base have completed as part of the employment
agreement. This is not done by Loyal Source which is why
it was not presented to you prior to your accepting this
position.

It would appear that efforts have been made at the base to
help [you] facilitate entering your information and
submitting it as well. it is our understanding that they will
allow a final attempt at compieting this document
successfully with the support of personnel during the
process. Unfortunately, they have also indicated that it will
be the final attempt to complete in full. If unsuccessful, you
will not be able to secure your security requirement and will
not be able to continue working at the base.
(Doc. 40-3, Def. Ex. E, ECF p. 366).
On September 9, 2020, Varouh followed-up again with Rodriguez regarding
the e-QIP. (id., ECF p. 365). Rodriguez responded the next morning with an
email addressed to Cohen, Varouh, and Hernandez at Loyal Source alleging age
and disability discrimination by Bush.° (Id. at 364-65). Rodriguez testified that
he believed Bush did not help him enough and even hindered his efforts to
complete the e-QIP requirement. (Doc. 40-3, Def. Ex. A., Pl. Dep. 06/01/2023,
231:23-242:16). Rodriguez admits that his September 10, 2020 email to Varouh
at Loyal Source did not reference any claim of race or national origin
discrimination by Bush. (Doc. 40-2, SOF Ff 29, 31).
Six months later, on March 24, 2021, Rodriguez emailed Bush with the
subject line: “Shop unfairness, etc.” (Doc. 40-4, Def. Ex. K., ECF p. 2-5). The
email specifically referenced age discrimination. (Id.) On March 26, 2021, Bush
replied with an email responding to Rodriguez's concerns. (Id. at ECF p. 2).

3 Rodriguez does not pursue a claim for disability discrimination in this matter.

| Bush began the email: “lam sorry that you feel the way that you do. Let me
| assure you, | do NOT harbor any discrimination against you due to age. After all,
you're only a couple of years older than myself.” (Id.) Bush concluded the email
by advising Rodriguez that he was on the list for an upcoming TDY mission in
Alabama. (Id.) No one from Loyal Source was copied on either email from March
2021. (Id.) Neither email references anything related to race or national origin
discrimination. (d.)
On April 26, 2021, Bush forwarded an email to McManus at Goldbelt
attaching a seven (7) page memorandum related to Rodriguez's performance,
| which included general concerns and specific issues encountered by Bush since
November 2020. (Doc. 40-5, Def. Ex. L., ECF p. 7-15). McManus then forwarded
the memorandum to Mary Varouh at Loyal Source with the following message:
Please see the detailed account of Mr. Bush's observations
with regards to the performance of Raymond Rodriguez. |
know we had issues with him initially and were close to
removing him from the contract due to his inability to
complete his CAC* paperwork, but it these new revelations
are performance based [sic]. | would like to discuss when
you have time.
Def. Ex. L., ECF p. 7).°

“CAC” stands for common access card. The court infers for background purposes only that
Rodriguez’s delay in e-QIP completion impeded a CAC being issued by the United States
Department of Defense.
5 The defendant also contends that Varouh from Loyal Source and McManus from Goldbelt
then exchanged additional emails evidencing: 1) Varouh’s inquiry into whether counseling or

As indicated in the March 2021 email from Bush, which has been provided
by Loyal Source, Rodriguez was scheduled to “go TDY” in May 2021. (See Doc.
42, SOF J 63). Rodriguez admits being informed that he needed to make his

own travel arrangements for that trip. (id. J] 64).
On May 4, 2021, Varouh from Loyal Source emailed Bush regarding
coordination of Rodriguez’s travel. (Doc. 40-5, Def. Ex. N., ECF p. 26). Bush
advised Varouh by reply email: “| had asked him this morning if he had sent
Loyal Source the information for his mission, and he told me that he had sent it
last night.” (Id.)
On May 5, 2021, at 9:53 AM, McManus from Goldbelt emailed Varouh at
Loyal Source: “Can we please set up a call with Mr. Rodriguez, Tim Bush, myself
and [Loyal Source] to discuss the ongoing situation? Seems like things are
escalating, and I'd like to get everyone on a call.” (Id., Def. Ex. O., ECF p. 30-31).
Based on the subject line of the email, it appears that Rodriguez sent a text

message that morning. (Id.) The specific recipient and the content of that text

message, however, are not of record.

termination would be appropriate; 2) a recommendation from McManus (with Bush’s
_concurrence) that Rodriguez receive a performance improvement plan or counseling in lieu of
termination; and 3) agreement by Varouh to provide a formal counseling to the plaintiff. (See
Doc. 40-2, SOF jf 60-62 (citing Def. Ex. L.)). While referenced by Loyal Source in its moving
papers, those emails are not included in the summary judgment record and thus these facts
are disregarded.
10

On May 5, 2021, at 12:41 PM, Varouh responded back to McManus at
Goldbelt. (Id., ECF p. 30). Varouh advised that: 1) she had counseled
Rodriguez regarding Goldbelt’s concerns the previous week; and 2) Loyal
Source’s HR department had spoken with Rodriguez that morning and would be
following up that afternoon to outline, “the work performance expectations and
need to comply with Loyal Source process for requesting travel.” (Id.).
On May 5, 2021, at 4:59 PM, Alecia Messam from Loyal Source’s HR
department emailed Rodriguez:
Thank you for taking the time to speak with me today. As
you mentioned, you will send me a written statement of the
issues you have been experiencing while working. Please
have your statement completed and back to me by close
of business day Thursday 5/6/21. I will give you a call once
| review to go over any questions | may have.
(Doc. 40-8, Def. Unmarked Exh., ECF, p. 7).
The next day, May 6, 2021, at 9:57 AM, McManus from Goldbeit emailed
Varouh from Loyal Source back: “Mr. Rodriguez is scheduled to travel within the
next week and has yet to make accommodations with hotel, air, etc., from my
understanding? At this point we are going to remove him from the trip and Mr.
Bush will replace.” (Doc. 40-5, Def. Ex. O., ECF p. 29). McManus asked: “Where
does [Loyal Source] stand with this employee? Between the CAC disaster and
performance issues, the team has been very patient, but status quo does not
work.” (Id.)
11

As these emails were being exchanged between Goldbelt and Loyal
Source employees, the plaintiff drafted a sixteen (16) page, single-spaced
memorandum, which was addressed to Varouh and Messam at Loyal Source.
(Id., Def. Ex. P., ECF 2-17). The memorandum references numerous instances
of age and race discrimination allegedly suffered by the plaintiff at the Army

| Depot. (id.) Rodriguez emailed the memcrandum to Varouh and Messam at
Loyal Source on May 6, 2021, at 3:01 PM. (Doc. 40-8, Def. Unmarked Exh.,
ECF, p. 7).
| On May 6, 2021, at 4:25 PM, McManus from Goldbelt advised Varouh at
Loyal Source:
Per our conversation earlier and after further deliberation
with Mr. Bush, we feel it best to move on from Mr.
Rodriguez, and have him removed from the contract for
performance and inability to complete administrative tasks
critical to his job. We will need to retrieve his CAC and any
other government issued items.
(Doc. 40-5, Def. Ex. O., ECF p. 29).
On May 7, 2021, Varouh spoke to Rodriguez during the workday and
instructed him to turn in his equipment and leave the Army Depot premises. (Id.,
Def. Ex. R., ECF p. 61).
Prompted by Rodriguez’s memorandum, Loyal Source ostensibly
investigated and advised the plaintiff, on May 10, 2021, that his allegations of

12

discrimination and retaliation were unfounded and unsubstantiated. (Doc. 40-7,
Def. Ex. W, ECF p. 6).
Rodriguez then contacted the Equal Employment Opportunity Commission
(“EEOC”). (Doc. 42, SOF ¥ 87). On March 4, 2022, Rodriguez signed and filed a
charge of discrimination with the EEOC. (Doc. 40-7, Def. Ex. U, ECF p. 2).
Rodriguez’s charge of discrimination used a termination date of May 13, 2021,
not May 7, 2021. (Id.). In responding to Loyal Source’s statement of facts tn this

case, Rodriguez admitted that “[t]he same false allegation,” i.e., the wrong date
of termination, appeared in his initial complaint in this matter. (Compare Doc. 42,
SOF J 93 with Doc. 44, Pl. Resp. to SOF 93). Rodriguez also admitted that his
May 5-6, 2021 memorandum was the first time that he notified Loyal Source
about any claim of race discrimination. (Compare Doc. 42, SOF ¥ 75 with Doc.
44, Pl. Resp. to SOF J 75).
Based on the above facts, Rodriguez's amended complaint asserts four
claims: Count | - racial discrimination in violation of Title VII; Count [| — national
origin discrimination in violation of Title Vil; Count Ili — age discrimination in
violation of the ADEA; and Count Vi — racial discrimination in violation of Section
1981. Rodriguez’s amended complaint does not contain any claims for
retaliation. After a period of discovery, Loyal Source filed the instant motion for

summary judgment, which brings this case to its present posture.

13

Jurisdiction
Because Rodriguez asserts claims pursuant to the ADEA, Title VII, and
Section 1981, 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.”).
Standard of Review
Loyal Source has filed a motion for summary judgment. 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 Gorp., 114 F.3d 407, 410 n. 4
(3d Cir. 1997) (quoting Feb. 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
burden is on the moving party to demonstrate that the evidence Is such that a

| 14

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.
Analysis
Loyal Source attacks Rodriguez’s claims from all angles, however, the
defendant's motion can best be addressed focusing on two arguments. First,
Loyal Source contends that Rodriguez’s Title VIl and ADEA claims are time-
barred. Second, Loyal Source argues that the record cannot demonstrate race
discrimination to support Rodriguez’s claims. The court addresses these
arguments in turn.

15

| 1. Whether Rodriguez’s ADEA and Title Vil Claims are Time-Barred
| A major point of contention in this case has been Rodriguez’s actual date of
termination. Loyal Source previously filed a motion for sanctions because
Rodriguez's EEOC charge and complaint in this action used May 13, 2021 as the
plaintiff's date of termination, not May 7, 2021. (Doc. 27). The court ultimately
denied that motion. (Docs. 35-36). Instead, the court permitted Rodriguez to
amend his complaint. (Id.)
| The amended complaint corrects Rodriguez's date of termination to May 7,
| 2021. (Doc. 37, Tf 24, 26). Rodriguez concedes that the deadline to file a
charge of discrimination with the EEOC was Thursday, March 3, 2022, and
admits that the charge was filed on Friday, March 4, 2022. (Id. J] 26, 32).

| Nonetheless, Rodriguez requests that equitable tolling be applied to this matter
| so that his ADEA and Title Vil claims may proceed. (id. 4 37).
Loyal Source argues that the record cannot support the application of
equitable tolling in this case. After review of the evidence provided by Rodriguez
in support of his request, the court agrees with Loyal Source.
Rodriguez has failed to clear up several discrepancies. First, Rodriguez
testified that he lived in Scranton, Pennsylvania when Loyal Source terminated
him and when he pursued his claim with the EEOC. (See Doc. 40-3, Def. Ex. A.,
Pl. Dep. 06/01/2023, 46:10-15, 72:7-10). “Title VI] requires a claimant in

16

Pennsylvania to file a charge with the EEOC within 300 days of an unlawful
employment practice.” Mikula v. Allegheny Cnty. Of PA, 583 F.3d 181, 183 (3d
Cir. 2009) (citing 42 U.S.C. § 2000e—5(e)(1); Watson v. Eastman Kodak Co., 235
F.3d 851, 854-55 (3d Cir. 2000). Like Title VIl, the ADEA contains provisions
| requiring a Pennsylvania claimant to file their charge within 300 days of the
allegedly illegal act. See 29 U.S.C. § 626(d)(1)(B); Seredinski v. Clifton Precision
Prods. Co., 776 F.2d 56, 63 (3d Cir. 1985). Despite his deposition testimony,
Rodriguez listed a Westbury, Virginia home address in his EEOC charge. (Doc.
45-3, Pl. Ex. 8, ECF p. 633). The 300-day limitations period also applies to
citizens of the Commonwealth of Virginia. See Lewis v. Norfolk S. Corp., 271 F.
Supp. 2d 807, 811 &n. 2 (E.D. Va. 2003)\(citing Puryear v. Cnty. of Roanoke, 214
F.3d 514 (4th Cir. 2000)).
Regardless of Rodriguez’s state citizenship, these 300-day filing
requirements are analogous to statutes of limitations. See Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994), overruled on
other grounds by Rotkiske v. Klemm, 890 F.3d 422, 427 (3d Cir. 2018){citing Hart
v. J.T. Baker Chemical Co., 598 F.2d 829, 831 (3d Cir.1979)). Since these
limitations periods were prescribed by Congress, they must be treated seriously.
See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002)
(emphasizing that word “shall” in Section 2000e-5(e)(1) makes the act of filing a

17

charge within the specified time period mandatory), Baldwin County Welcome
Center v. Brown, 466 U.S. 147, 152 (1984) (per curiam) (“Procedural
requirements established by Congress for gaining access to the federal courts

are not to be disregarded by courts out of a vague sympathy for particular
litigants[.]”).
In this case, there is no longer a factual dispute over Rodriguez’s
termination date. The plaintiff agrees tnat Loyal Source terminated his
employment on May 7, 2021, not May 13, 2021. Rodriguez also agrees that the
deadline to file a charge of discrimination was March 3, 2022, or 300 days after
May 7, 2021.5 Consequently, Rodriguez fell short of his statutory obligations.
Absent an applicable saving doctrine, cases with untimely EEOC charges must
be dismissed. See Ruehl v. Viacom, Inc., 500 F.3d 375, 383 (3d Cir. 2007).
Rodriguez advocates for equitable tolling to be applied under the
circumstances. “Equitable tolling stops the statute of limitations from running
when an EEOC charge’s accrual date has already passed.” Id. at 384 (citing
Oshiver, 38 F.3d at 1387). This doctrine, however, is to be used sparingly. See
Nat'lR.R. Passenger Corp., 536 U.S. at 113 (citations omitted).

6 “TA]n adverse employment action occurs, and the statute of limitations therefore begins to
run, at the time the employee receives notice of that action and termination is a delayed but
inevitable result.” Watson v. Eastman Kodak Co., 235 F.3d 851, 852-53 (3d Cir. 2000)(citing
Delaware State College v. Ricks, 449 U.S. 250 (1980)).
18

Equitable tolling may be appropriate in three principal situations: (1) where
the defendant has actively misled the plaintiff respecting the plaintiff's cause of
action; (2) where the plaintiff in some extraordinary way has been prevented from
asserting his or her rights; or (3) where the plaintiff has timely asserted his or her
rights mistakenly in the wrong forum. Oshiver, 38 F.3d at 1387. Rodriguez does
not contend that Loyal Source actively misled him about his termination date or
that he timely filed with the EEOC in the wrong geographic district. Rather, in
opposing summary judgment, Rodriguez advances the second option,
contending that “bureaucratic delay” by the EEOC prevented him from timely
filing the charge of discrimination:
The EEOC drafted the Charge of Discrimination for Mr.
Rodriguez’s signature on the same day it was due to be
filed, March 3, 2022, however, the EEOC had omitted
important information in the initial draft which necessitated
revisions. See Ex. 8, pg. 7. The EEOC made the revisions
and the charge was perfected on March 4th, 2022, one day
after the statutory deadline. See Ex. 8 pg. 8. As the delay
in exhausting his administrative remedies was not his fault,
Mir. Rodriguez is entitled to equitable tolling.
(Doc. 45, Pl. Br. in Opp. at 6-7).
After carefully reviewing the summary judgment record, the EEOC did not
prevent Rodriguez from asserting his rights in any way, let alone some
extraordinary way.

19

For instance, Rodriguez answered interrogatories indicating that he did not
communicate with the EEOC until March 2, 2022, or 299 days following his
termination. (Doc. 40-7, Def. Ex. Y, Pl. Ans. to Interrog. #17a., ECF p. 17). The
record reflects that the EEOC then immediately began processing his claim. On
March 2, 2022, the EEOC rescheduled a phone interview from April 2022 to 2:00
PM that same day. (Doc. 45-3, PI. Ex. 8, ECF p. 630). The EEOC provided a
draft charge of discrimination to the plaintiff on March 3, 2022 at 7:50 AM. □□□□□□
ECF p. 632). Rodriguez contends that changes to the charge of discrimination
then had to be made. In opposing summary judgment, he has not indicated what
those changes were, but it is undisputed that they did not include correcting his
date of termination. Operating from Rodriguez's use of May 13, 2021 as his
termination date, the EEOC had another draft charge ready for the plaintiff on
March 4, 2022. Although the EEOC provided Rodriguez with a charge on actual
Day 301, the EEOC was relying upon a date of termination that Rodriguez
himself had provided. (Id., ECF p. 626). Despite Rodriguez’s attempts to shift
blame onto the EEOC, the agency completed its duties in a timely manner based

on the facts provided by the plaintiff and under the circumstances that Rodriguez
himself created.
In seeking equitable tolling, Rodriguez also emphasizes that he proceeded
before the EEOC pro se. But his deposition testimony indicates that he: 1)

20

consulted with an attorney within ten (10) days of his termination; 2) “conversed
with several firms’; and 3) was “forewarned by other attorneys” about the time
limitations. (See Doc. 40-4, Def. Ex. G, PI. Dep. 07/20/2023, 149:12-153:23),.
| Rodriguez also testified that he pursued employment discrimination claims
against several past employers, which involved EEOC proceedings. (See Doc.
| 40-3, Def. Ex. C, PI. Dep. 06/01/2023, 6:21-7:17, 22:3-37:3, 79:3-82:11, 108:1-
20, 122:9-123:4).
Under such circumstances, equitable tolling is not warranted. Summary
judgment will thus be granted in favor of Loyal Source on the ADEA and Title VII
claims in this case. His claims for age and national origin discrimination cannot
| move forward.
| 2. Whether Rodriguez Has Demonstrated Race Discrimination
Although Rodriguez's Title VII claims are time barred, Section 1981 allows
for individuals who believe they experienced racial discrimination in the
workplace to file a separate private right of action. See Gooding v. Warner-
Lambert Co., 744 F.2d 354, 359 (3d Cir. 1984)("The avenues of relief available
under Title VII and § 1981 are independent.”). Section 1981 provides that □□□□□
persons within the jurisdiction of the United States shall have the same right in

every State and Territory to make and enforce contracts ... to the full and equal
benefit of all laws ... as is enjoyed by white citizens[.]” 42 U.S.C. § 1981(a). The

21

phrase “make and enforce contracts” is statutorily defined to include: “the
making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship.” 42 U.S.C. § 1981(b).
Rodriguez’s amended complaint may be construed to raise race
discrimination claims relative to his termination and for hostile work environment.
(Doc. 37, Jf 11, 14-22, 77). Section 1981 provides a four-year limitations period
for such claims. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 383 (2004).
And unlike his other time-barred race discrimination claims, “[t]he filing of a Title
charge and resort to Title VII's administrative machinery are not a prerequisite
for maintaining a section 1981 suit.” Gooding, 744 F.2d at 359 (citing Johnson v.
Ry. Express Agency, Inc., 421 U.S. 454, 461 (1975)). The court will address
Rodriguez's wrongful termination claim before turning to his hostile work
environment discrimination claim.

a. Discriminatory Treatment in Rodriguez’s Termination
To prevail in a Section 1981 action, Rodriguez must demonstrate that (1)
he is a member of a racial minority’; (2) intent to discriminate on the basis of race

7 Regarding Section 1981, “Congress intended to protect from discrimination identifiable
classes of persons who are subjected to intentionai discrimination solely because of their
-ancestry or ethnic characteristics. Such discrimination is racial discrimination that Congress
intended § 1981 to forbid, whether or not it would be classified as racial in terms of modern
scientific theory.” Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613, (1987). “[C]ourts have
treated Hispanic as a race for purposes of [Section] 1981 because Hispanic people are often
22

| by the defendant; and (3) discrimination concerning one or more of the activities
enumerated in the statute, which includes the right to make and enforce
contracts. See Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001).
Regarding proof of intentional discrimination, Section 1981 follows the

same analytical framework as Title Vil race discrimination claims. See Qin v.
Vertex, Inc., 100 F.4th 458, 470 (3d Cir. 2024). Rodriguez's case relies upon
circumstantial evidence, inferences, and arguments that Loyal Source’s stated
| reasons for termination are pretextual. Consequently, the McDonnell Douglas
three-part burden-shifting framework applies to his claims. See id. at 472-73
(citing Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04. (1973)).
Under this framework, the plaintiff must first establish a prima facie case of
discrimination by showing that: (1) he is a member of a protected class; (2) he

was qualified for the position he sought fo attain or retain; (3) he suffered an
adverse employment action; and (4) the action occurred under circumstances
that could give rise to an inference of intentional discrimination. Id. at 473
(cleaned up).

perceived as non-white.” Mojica.v. Advance Auto Parts, Inc., 15-C\V-1418, 2016 WL 107844,
at *4 (E.D. Pa. Jan. 11, 2016)(citing Petrone v. City of Reading, 541 F. Supp. 735, 738 (E.D.
Pa. 1982).
23

Per Loyal Source, Rodriguez cannot demonstrate any form of racial
discrimination by the defendant in this case. Rodriguez counters by referring to
his testimony about his supervisor's remarks in the workplace. Emails of record
indicate that his supervisor, Tim Bush, communicated with representatives from
Goldbelt, the prime contractor, and Loyal Source, the subcontractor employing
the plaintiff, and that all of these individuals were involved in the termination
decision.® Such evidence is sufficient to demonstrate a prima facie race
discrimination claim.
Once a plaintiff establishes a prima facie case, the burden of production
shifts to the employer to articulate a legitimate, non-discriminatory reason for the
adverse employment action. See Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S.
248, 255 (1981). Loyal Source has produced emails and other documents
regarding Rodriguez’s ongoing performance issues and inability to complete
administrative tasks. (See e.g. Doc. 40-5, Pl. Ex. O., S. McManus Email
05/06/2021, ECF p. 29). Thus, Loyal Source has met its burden at step two.
To defeat summary judgment at the third McDonnell Douglas step, a
plaintiff must demonstrate that the employer's proffered reasons were not the

8 Loyal Source’s asserts that decision-makers from other entities removed Rodriguez from the
Army Depot. After reviewing the record, there are genuine issues of material fact as to Loyal
source’s participation and involvement in the ultimate decision to terminate the plaintiff.
24

| 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
legitinate reasons; or (2) believe that an invidious discriminatory reason was

more likely than not a...determinative cause of the employer's action.’ ” Qin, 100
F.4th at 474-75 (3d Cir. 2024)(quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d
Cir. 1994); see also Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 589
U.S. 327, 336 (2020).
Title VII and Section 1981 discrimination claims differ when it comes to
causation. Pursuant to Section 1981, “a plaintiff bears the burden of showing
that race was a but-for cause of [his] injury.” Comcast Corp., 589 U.S. at 333.
The Supreme Court has rejected applications of Title VI!’s “motivating factor”
causation test in Section 1981 cases. Id. at 336.
Loyal Source argues that Rodriguez has not identified a genuine issue of
material fact regarding evidence of pretext, highlighting Rodriguez's agreement
with components of the defendant's stated reasons for termination. For example,
in responding to Loyal Source’s statement of facts, Rodriguez admitted that he
“testified at his deposition that he was actually slower than other employees, and

25

that it was due to his age.” (Compare Doc. 42, SOF { 46 with Doc. 44, Pl. Resp.
to SOF ¥ 46).
Furthermore, per Rodriguez, a slip-and-fall at work in August 2020 also
impacted his work performance. (Doc. 42, SOF 4 39). During his testimony in
workers’ compensation proceedings, Rodriguez recalled how his supervisors
questioned why he was taking rests and not producing more. (id. □ 40).
Rodriguez also testified that the job required him to lift and carry heavy objects,
stand, and bend and that he “just couldn't do it anymore.” (Id. 7] 39-40).
According to Rodriguez’s workers’ compensation testimony, the work injury
caused him to be terminated:
| got a call from my Human Resources. And they basically
told me that Mr. — the manager who | reported it to had
been telling them that | —| wasn’t up to pay in my work, you
know, | wasn’t able to lift stuff and stand and do the work.
So, he — he couldn't use me at that facility because of that.
(ld. ] 42).
In light of the above, Rodriguez has not challenged evidence reflecting his
belief that some of Loyal Source’s complaints about his performance are true.
Consequently, a reasonable jury would not disbelieve Loyal Source’s explanation
that Rodriguez experienced performance issues which prompted his termination.
That leaves Loyal Source’s other proffered reason for Rodriguez's
termination: the plaintiff's “inability to complete administrative tasks critical to his

26

job.” (Doc. 40-5, PI. Ex. O., S. McManus Email, 05/06/2021 4:25 PM, ECF p. 29).
Rodriguez admits that he had difficulties completing the e-QIP background
investigation forms. (Doc. 42, SOF J 24). On the other hand, Rodriguez testified
that Bush impeded his efforts to complete the e-QIP paperwork and that such
interference prompted him to send a written complaint about Bush to Loyal
Source by email. (Doc. 40-3, Def. Ex. C, Pl. Dep. 06/01/2023, 231:23-233:7).
That email, dated September 10, 2020, specifically alleges age discrimination
and disability discrimination by Bush. (Doc. 40-7, Def. Ex. E., ECF pp. 3-4). It
does not, however, mention race discrimination. (Id.)
As for completing arrangements to go on a TDY mission, Rodriguez
asserts that Bush discriminated against him by not sending the plaintiff on these
missions. Rodriguez complained directly to Bush by email about this ongoing
issue. (Doc. 40-5, Def. Ex. K, Pl. Email 03/24/2021, ECF p. 4). This email also
does not reference racial discrimination:
| am under the strong opinion, that this constant Age
Discrimination should come to an immediate halt. As |
mentioned to you before, how fast | work at the shop has
absolutely no bearing on TDY, I've done thousands of Field
TDY and lead a team and have won hundreds of awards
for my accomplishments.°
(Id.)

© Rodriguez testified in a similar manner: he believed that Bush’s decision-making regarding
TDY missions stemmed from age discrimination. (Doc. 40-3, Def. Ex. C, Pl. Dep. 217:48-
219:22).
2?

Rodriguez's pretext case thus relies on evidence advancing several
discriminatory causes for his termination, including age, race, national origin,
disability, and work injury. To move forward with his Section 1981 claim,
Rodriguez must demonstrate that race was a but-for cause of his termination.
But-for causation “is established whenever a particular outcome would not have
happened ‘but for’ the purported cause.” Bostock v. Clayton Cnty., Georgia, 590

| U.S. 644, 656 (2020}(citing Gross v. FBL Financial Services, Inc., 557 U.S. 167,
176 (2009)). “In other words, a but-for test directs us to change one thing ata
time and see if the outcome changes. If it does, we have found a but-for cause.”
‘Wd,
Under the law, events can have more than one but-for cause. See id. With
that said, the United States Supreme Court has also emphasized that an
employment discrimination claim requiring but-for causation cannot succeed
unless the employee's protected trait actually played a role in the employer’s
decision-making process and had a determinative influence on the outcome. See
Gross, 557 U.S. at 176 (referencing Hazen Paper Co. v. Biggins, 507 U.S. 604,
610, (1993)).
Rodriguez's age and his physical condition are at the forefront of his
discrimination claims, not race. With this record, a reasonable jury can consider
“ongoing performance issues” and think that Loyal Source’s reasons for

28

Rodriguez's termination are employer-manufactured to hide those
considerations. After all, when Rodriguez first complained about Bush to Loyal
Source in September 2020 and referenced age and disability discrimination,
Bush ostensibly began drafting a document pertaining to the plaintiff's work
performance. (Doc. 40-5, Def. Exs. L-M, ECF pp. 6-24 (listing events beginning
in November 2020)). When Rodriguez complained a second time about age
discrimination directly to Bush in March 2020, Bush denied such discrimination in

a reply email to the plaintiff, but he then also sent that document listing the
plaintiff's performance shortcomings to Shon McManus at Goldbelt. (Id.)
Rodriguez admits that his May 5-6, 2021 memorandum was the first time
that he notified Loyal Source about any claim of race discrimination. (Doc, 42,
SOF ¥ 75). Rodriguez also admits that the week prior to submitting this
document, he was informed about Bush’s complaints concerning his
performance. (id. 73). Thus, with such admissions regarding timing,
Rodriguez's evidence is that, over several months: 1) he accused Bush of age
and disability discrimination; 2) Bush responded to those complaints by sending
a memorandum to Goldbelt about the plaintiff's “performance issues’; 3) Goldbelt
advised Loyal Source of the issues raised by Bush; 4) Loyal Source counseled
plaintiff based on these issues; and then 5) Rodriguez sent a complaint of age
and race discrimination to Loyal Source accusing Bush, Tagliari, and other

29

unnamed individuals of making various remarks, undermining or sabotaging his
work, and attempting to provoke physical confrontations. (Doc. 40-6, Def. Ex. P.
Pl. Memo to Loyal Source, May 5-6, 2021).
That 16-page memorandum concludes: “Il realize and know no company
will admit wrong doing, and already once before it occurred, all | can say is that if
lam hit with a hammer, | will hit back with a sledge hammer because my life is at
stake and that of my beloved family.” (Id., ECF p. 9). This evidence does not
indicate that Loyal Source’s legitimate reason was pretext for race discrimination.
Consequently, a reasonable jury couid not determine that race discrimination

was a but-for cause of Rodriguez's termination or that race had a determinative
influence on the plaintiff's employment outcome. Summary judgment is thus
warranted in favor of Loyal Source’s Section 1981 claim as it relates to
discriminatory treatment and wrongful termination.
b. Hostile Work Environment Discrimination
Loyal Source also moves for summary judgment on Rodriguez's race-
based hostile work environment claim. That claim also follows the Title Vil
analytical framework. Qin, 100 F.4th at 470. To succeed on such a claim under
Section 1981, Rodriguez must demonstrate that: 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

detrimentally affect a reasonable person in like circumstances, and 5) the
existence of respondeat superior liability, meaning the employer is responsible.
Castleberry v. STI Grp., 863 F.3d 259, 263 (3d Cir. 2017)(citing Mandel v. M & Q
Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013)(cleaned up)).
For the reasons discussed above, the intentional discrimination component
of Rodriguez’s hostile work environment claim falls short due to the plaintiff's
failure to demonstrate but-for causation. Additionally, Rodriguez's allegations
about race-based discrimination in the workplace are not severe or pervasive
enough to support a hostile work environment claim against Loyal Source. As
with the above, where Rodriguez offers instances of objectively severe conduct,
such conduct is associated with age discrimination.
When determining whether an environment is sufficiently hostile or abusive,
courts are directed to look at all the circumstances, “including the ‘frequency of
the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee's work performance.’ ” Faragher v. City of Boca Raton, 524
U.S. 775, 787-78 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)). “[T]he resolution of that question is context-specific,” Castleberry, 863
F.3d at 264, with consideration of the overall scenario, see Qin, 100 F.4th at 477.

31

In assessing whether discriminatory conduct is “severe or pervasive,” the
court must also consider the frequency of the conduct in the context of the case
and whether the alleged discrimination was physically threatening, humiliating, or
unreasonably interfered with Rodriguez’s work performance. See id. (citing_Nitkin
v. Main Line Health, 67 F.4th 565, 577 (3d Cir. 2023): Harris, 510 U.S. at 23).
In his deposition, Rodriguez focused on remarks involving his food choices
during workplace lunch breaks:

e His coworker, Tagliari, made two comments about the “terrible” smell
and appearance of Rodriguez's lamb stew and used the word “Spanish”
in his insults about it. (Doc. 40-3, Def. Ex. A., Pl. Dep. 06/01/2023,
169:11-18, 176:23-182:11). Bush also joined in with remarks from
Rodriguez’s co-workers about his homemade lunches, calling it
“Spanish food.” (Id. 179:21-180:13, 193:6-197:5).
e occasion, another unnamed coworker tried Rodriguez’s paella
and told the plaintiff it tasted “like feces.” (Id. 200:15-—201:15).
e On one occasion, Tagliari and another unnamed technician made a
sexual reference to the price of a Cuban sandwich, “how come it's so
expensive, you know, what's it do, cause an erection or something?” (Id.
169:11-172:10, 182:17-20, 183:11-184:8)
e On another occasion, Tagliari and the other unnamed worker referenced
adding mayonnaise to Rodriguez's food and said, “that’s what we think
of Spanish food.” (id. 172:11-173:12, 184:9-187:7). Bush was also
involved and remarked: “That's how us Anglo-Saxons deal with Spanish
food.” (Id. 193:6-12)
e In one instance, Bush told the plaintiff to eat his lunch in another area:
“take that stinking food out of here, makes me sick, go eat in the back of
the warehouse.” (Id. 179:21-180:13, 193:6-197:5).

32

“[C]onduct must be extreme to amount to a change in the terms and
conditions of employment[.]” Faragher, 524 U.S. at 788. “Simple
teasing...offhand comments, and isolated incidents (unless extremely serious)
will not amount to discriminatory changes[.]” Id. (cleaned up).
Assuming Rodriguez's testimony to be true, he experienced rude remarks
about what he brought to the workplace for his lunch breaks and heard some

crass commentary about food that he enjoyed. Of the above events, only □□□□□□
directive to eat elsewhere implicates some change that resulted from those
remarks. Even then, in context, Bush’s remarks did not impact the plaintiff's work
performance. Rodriguez was not working when taking his lunch break.
Further assuming that comments about the plaintiff's lunch implicate the
terms and conditions of his employment contract, Rodriguez testified that Bush
did not direct the plaintiff to eat elsewhere other than that one day. (Doc. 40-3,
Def. Ex. C., Pl. Dep. 06/01/2023, 193:6-197:5). Rather, Rodriguez admitted that
he made the choice to eat away from his coworkers moving forward. (ld.) Thus,
although inappropriate, these various remarks about Rodriguez’s food do not
demonstrate a hostile work environment. They were not so extreme as to impact
his working conditions.

33

Rodriguez also referenced other workplace remarks that did not involve
food:

e Bush said, “another Puerto Rican” on Rodriguez’s first day of work at the
Army Depot after observing flags displayed on the plaintiff's car.
(190:15-193:6).
e On another occasion, after overhearing a voicemail from Rodriguez’s
phone spoken in Spanish, Bush allegedly said, “that’s Spanish, we don’t
speak Spanish here in this place,” (see id. at 197:6-14), or “[s]hut that
Spanish trash up!” (Doc. 40-6, Def. Ex. P. Pl. Memo to Loyal Source,
May 5-6, 2021 at ECF p. 9).
| e Bush, after hearing Rodriguez speaking Spanish to a government
| employee from Puerto Rico, told the plaintiff: “we speak English here,
| not Spanish.” (id. p. 10).
| Similarly, these comments, if true, are discourteous and show contempt
toward millions of Americans. But federal anti-discrimination laws do not create a
“general civility code[.]” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
81 (1998). They only forbid behavior “so objectively offensive to alter the
conditions of the victim’s employment.” Id. (internal quotations omitted). These
remarks are not so severe as to demonsirate a hostile work environment.
Moreover, even when considering the cumulative nature of these remarks,
as is required, Rodriguez provides no other evidence that any race-based
| remarks altered his working conditions or were otherwise associated with the
| various criticisms Bush offered about the plaintiff's production in the workplace or
| why Bush did not permit Rodriguez to participate in TDY missions. Rather,
34

Rodriguez's case runs into the same issues described above because the
plaintiff attributes numerous workplace events to his time-barred age
discrimination claims. (Doc. 45-2, Pl. Br. in Opp. at 12 (Further, Mr. Bush
discriminated against Plaintiff on regular daily basis on the basis of his age by

| verbal assaults, including telling him that he was too slow, assisting his co-
| workers while ignoring Plaintiff, subjecting Plaintiff to strict scrutiny while allowing
| his co-workers to engage in the same activities without threatening to or
| disciplining them and by physically threatening Plaintiff [sic].”)).
| And like the lengthy memorandum he submitted to Loyal Source just before
his termination, Rodriguez previously documented his complaints about Bush
playing favorites, making angry comments, and blaming the plaintiff for things he
had no contro! over in March 2021. (Doc. 40-7, Def. Ex. K, Pl. Email 03/24/2021).
| Rodriguez sent that email directly to Bush and Bush alone. (Id.) None of the
| above remarks are mentioned. (/d.) Plaintiff's race is not referenced. (Id.)
| Rather, Rodriguez wrapped up his complaint as follows:
| In conclusion, | have noticed since | started working here
that | am the sole outcast to you do to my age, [sic] | am
the only "slow" one when | do up to 10-14 items a day, and
have the lowest error rate of all I've been told by QC staff.
Let me have the proper tools to work with, the proper
training, the corrected manuals, and most importantly, the
proper and correct respect | deserve.
(Id.)

35

Consequently, Rodriguez cannot demonstrate "severe or pervasive
conduct” on the basis of race. Summary judgment will also be granted in favor of
Loyal Source on Rodriguez's Section 1981 hostile work environment claim.
Conclusion
For the reasons set forth above, Loyal Source’s motion for summary
judgment (Doc, 40) will be granted and the Clerk of Court will be directed to close
case. An appropriate order follows.

| A } ( □
2/4, £07 □□ ee
fy JUDGE JULIA K. MUNLEY\
| ner States District Courk
| □ poy
|

36

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10828111. Public record. Not legal advice.