Opinion
Civil Action No. 03-5129.
October 13, 2004
ORDER
AND NOW, this 13th day of October, 2004, upon consideration of Defendants' Motion for Summary Judgment (Doc. No. 17), and the Response thereto, it is hereby ORDERED that Defendants' Motion is DENIED IN PART and GRANTED IN PART. Specifically:
1. as to Defendants' Motion for Summary Judgment regarding Count I of the Amended Complaint (Retaliation under Title VII), Defendants' Motion is DENIED.
2. as to Defendants' Motion for Summary Judgment regarding Count II of the Amended Complaint (Failure to Maintain Records under Title VII), Defendants' Motion is GRANTED.
Establishing a prima facie case of discriminatory retaliation under Title VII requires three elements. Specifically:
to advance a prima facie case of retaliation, a plaintiff must show that: (1) the employee engaged in a protected employee activity; (2) the employer took an adverse employment action after or contemporaneous with the employee's protected activity; and (3) a causal link exists between the employee's protected activity and the employer's adverse action.Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000). Here, the Defendants readily agree that the Plaintiff has satisfied the first element. Additionally, this Court finds that a material issue of fact exists as to the second element. While Defendants state that the Plaintiff resigned from his position during a December 22, 2001 phone call, in his deposition, the Plaintiff states that at no point during that phone call did he resign and that he was in fact fired on December 23, 2001 after he showed up to work. Finally, this Court finds that there is a material issue of fact outstanding regarding the third and final element of a retaliation claim. In this case, there is a period of approximately six months, from the time the Plaintiff initially engaged in the protected activity and the ultimate adverse employment action. Even though there is this length of time between the protected activity and the ultimate adverse employment action, the Plaintiff can still establish a causal link between his protected behavior and the subsequent adverse employment action if the employer engaged in a pattern of antagonism during the intervening period. Id. at 281. The Defendants assert that "[t]here is no testimony to suggest that the plaintiff was harassed or otherwise disturbed in his job activities during the time frame from June to the time of his separation in December of 2001." (Mem. Law in Supp. Defs.' Mot. for Summ. J. at 12). However, the Plaintiff states that "[t]he management at Timothy's threatened to fire Plaintiff if he did not cease `making problems.'" (Mem. Law Supp. Resp. of Pl. to Mot. for Summ. J. of Def. at 4). The inference being that the "problems" were Plaintiff's continued complaints regarding the racial slurs. Since the Plaintiff in this case is proceeding pro se, this Court will consider the information set forth in Plaintiff's response to be in the nature of an affidavit. See Giffler v. Abel, No. 94-5348, 1995 WL 273652, at *1 n. 1 (E.D. Pa. May 5, 1995). Because the instant Motion before this Court is one for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986) (citations omitted). Thus, this Court finds that there remains a material issue of fact as to the third element. Therefore, Defendants' Motion for Summary Judgment as to Plaintiff's Title VII retaliation claim must be denied.
The Defendants assert that "there has been no claim made that the records of the plaintiff were tampered with, or could provide proof of retaliatory behavior." (Mem. in Supp. of Defs.' Mot. for Summ. J. at 15). Plaintiff's Response Brief is void of any allegation or mention of this claim. Indeed, Plaintiff's entire Response Brief relates only to Count I. The Third Circuit has noted, "[t]o defeat summary judgment [a plaintiff] `cannot rest simply on the allegations in the pleadings,' but `must rely on affidavits, depositions, answers to interrogatories, or admissions on file.'" GFL Advantage Fund, Ltd. v. Colkitt, 272 F.3d 189, 199 (3d Cir. 2001) (quoting Bhatla v. U.S. Capital Corp., 990 F.2d 780, 787 (3d Cir. 1993)). Here, even though the Plaintiff is pro se, he still must come forward with some evidence to avoid summary judgment. See Lewis v. Kinko's of Ohio, No. 99-3028, 2004 WL 764382, at *6 (E.D. Pa. March 31, 2004). The Plaintiff has failed to do so as it relates to Count II, and therefore summary judgment in favor of the Defendants is proper on this Count.
Finally, the Defendants have not moved for summary judgment on Count III, Plaintiff's Pennsylvania Wage Payment and Collection Law claim. Rather, the Defendants assert that this claim should be remanded to the state court, reduced to arbitration or transferred to Delaware. In light of Defendants' failure to move for summary judgment on Count III, and because Count I remains a viable claim, Count III also must remain in this case.