STALLINGS v. CELLCO PARTNERSHIP
Filing
25
MEMORANDUM OPINION AND ORDER granting in part and denying in part 14 Motion for Summary Judgment. The Motion for Summary Judgment is GRANTED as to Plaintiffs retaliatory failure-to-hire claim, to the extent that it is based on Plaintiffs participation in the Warrendale incident investigation for failure to exhaust administrative remedies; and In all other respects, the motion for summary judgment is DENIED as premature. Signed by Judge Terrence F. McVerry on 06/24/2011. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LINDA STALLINGS,
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Plaintiff,
v.
CELLCO PARTNERSHIP,
d/b/a VERIZON WIRELESS,
Defendant.
2: 10-cv-01388
MEMORANDUM OPINION AND ORDER OF COURT
Presently pending before the Court is the MOTION FOR SUMMARY JUDGMENT,
with brief in support filed by Defendant Cellco Partnership d/b/a Verizon Wireless (Document
Nos. 14 and 15), the BRIEF IN OPPOSITION filed by Plaintiff, Linda Stallings (Document No.
20), and the REPLY BRIEF filed by Defendant Cellco Partnership, d/b/a Verizon Wireless
(Document No. 22). For the following reasons, the Motion will be granted in part and denied in
part without prejudice.
Background
Plaintiff, Linda Stallings, initiated this action by the filing of a Complaint on July 21,
2010, in the Court of Common Pleas of Allegheny County, Pennsylvania in which she asserts
retaliation claims pursuant to the Pennsylvania Human Relations Act (“PHRA”) against her
former employer, Defendant Cellco Partnership, d/b/a Verizon Wireless (“Verizon Wireless”).
Defendant removed the case to this Court on October 10, 2010.
Plaintiff alleges that Defendant illegally retaliated against her on two separate occasions:
(i) when she was not hired for the position of Consultant – Human Relations (“HR-Consultant
position”) and (ii) when her employment was ultimately terminated in March 2008. Plaintiff
alleges that on both occasions Defendant illegally retaliated against her because of prior charges
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of discrimination which she had filed against Verizon Wireless and because of her participation
in an internal Company investigation which involved an incident she characterizes as a “hate
crime” (hereinafter referred to as the “Warrendale incident”). The Warrendale incident occurred
on October 3, 2007, when an inter-office envelope containing an African-American doll with a
noose around its neck and a note containing a racial epithet was discovered on the desk of one of
Plaintiff’s co-workers. The co-worker’s name was written on the abdomen of the doll and a
racial epithet was written on the doll’s forehead and in the note. Plaintiff was present at the desk
area of the employee to whom the envelope was addressed at the time the envelope was
discovered and opened. The Warrendale incident was the subject of an internal Verizon
Wireless investigation headed by Corporate Security Officer Diane Wilson, who interviewed
approximately thirty (30) Verizon Wireless employees, including Plaintiff. The FBI eventually
became involved in the investigation at which time Verizon Wireless discontinued its internal
investigation.
Defendant has moved for summary judgment on three grounds. First, Defendant argues
that Plaintiff has failed to exhaust her administrative remedies with regard to her failure to hire
claim purportedly based upon her participation in the Company internal investigation of the
Warrendale incident.
Next, Defendant argues that Plaintiff cannot establish the elements of a prima facie
retaliation case on either her failure to hire and/or her termination claims as her participation in a
Company investigation does not alone constitute protected activity. Defendant also argues that
there is no causal connection between Plaintiff’s participation in the internal investigation and
the decisions to deny her the HR-Consultant position and/or to terminate her employment.
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Defendant also contends that the decisionmakers in this case were not aware that Plaintiff had
filed any prior discrimination claims against Verizon Wireless.
Finally, assuming arguendo that Plaintiff could establish a prima facie case, Defendant
argues that it had legitimate, non-retaliatory business reasons for denying her the HR-Consultant
position and for terminating her employment, namely that Plaintiff violated Verizon Wireless’s
Code of Conduct when she improperly accessed information about employees over whom she
had no job responsibilities.
Plaintiff argues that granting summary judgment at this early stage of the litigation would
be premature as she has not had an opportunity to conduct any discovery. With the exception of
Plaintiff’s failure to exhaust administrative remedies, the Court agrees with Plaintiff.
Discussion
A.
Plaintiff Failed to Exhaust Her Administrative Remedies With Regard to Her Failure-toHire Claim Based on Her Participation in the Warrendale Incident
Plaintiff alleges that Verizon Wireless failed to hire her for the HR-Consultant position
for essentially two reasons: (i) she participated in the internal investigation of the Warrendale
incident and (ii) she filed numerous discrimination charges against Verizon Wireless during her
employment.
In order to bring a retaliation claim under the PHRA, a plaintiff must first file an
administrative complaint with the Pennsylvania Human Relations Commission (“PHRC”) within
180 days of the alleged adverse action. 43 P.S. § 959(a); see also Woodson v. Scott Paper Co.,
109 F.3d 913, 925 (3d Cir. 1997).
The undisputed summary judgment record reflects that Plaintiff filed one administrative
complaint, PHRC Charge No. 200703164, related to Defendant’s failure to hire her for the HRConsultant position, as well as Defendant’s denial of other positions for which she had applied.
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In both the original and amended charges, Plaintiff solely alleged that she was denied the
positions in retaliation for the previous PHRC charges she had filed against Verizon Wireless.
Neither the original PHRC Charge No. 200703164 nor the amended charge refer at all to the
Warrendale incident or to Plaintiff’s participation in the Company’s internal investigation of the
Warrendale incident.
On June 23, 2008, after her discharge, Plaintiff filed a separate PHRC charge against
Verizon Wireless, PHRC Charge No. 200705033, in which she alleges that her employment had
been illegally terminated because “within weeks of my challenging the promotions and/or
reassignments of less qualified employees for positions I had applied for and as importantly,
within weeks of my testimony regarding the Black Baby Doll with the noose, I was discharged.”
Document No. 16-15. The PHRC Charge NO. 200705033 is a single count PHRC Charge
entitled “Discharge – Retaliation - Discrimination.” The Charge does not refer at all to the
denial of the HR-Consultant or other positions.
The Court finds that because the failure to hire claim as it relates to a retaliation claim
purported on Plaintiff’s participation in the Warrendale investigation falls outside the scope of
the PHRC Charge No. 200703164, the sole administrative charge filed which relates to
Defendant’s failure to hire Plaintiff for the HR-Consultant position, the Court will dismiss with
prejudice Plaintiff’s PHRA failure-to-hire claim to the extent that it is based on Plaintiff’s
participation in the Warrendale internal investigation for failure to exhaust administrative
remedies.
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B.
Plaintiff Is Entitled To Discovery On Her Remaining Retaliation Claims
Defendant argues that summary judgment should be granted because (i) Plaintiff cannot
state a prima facie case of unlawful retaliation because “the mere fact that [she] was interviewed
does not constitute protected conduct,” (ii) there is no causal connection between Verizon
Wireless’s actions and Plaintiff’s participation in the Warrendale investigation or agency filings
because the decisionmaker had no knowledge of either Plaintiff’s participation in the Warrendale
investigation or of her prior PHRC complaints against Verizon Wireless; (iii) the temporal
proximity between Plaintiff’s participation in the Warrendale investigation and her prior PHRC
charges is too great to establish the necessary causal link between Plaintiff’s actions and her
termination; and (iv) Defendant had legitimate nonretaliatory reasons for its actions. The Court
will address each of Defendant’s arguments seriatim.
First, at this early stage of the litigation the Court is not able to determine whether
Plaintiff’s participation in the Warrendale investigation would not be considered protected
activity under the PHRA. The PHRA provides that:
It shall be an unlawful discrimination practice . . . for any . . .
employer . . . to discriminate in any manner against any individual
because such individual has opposed any practice forbidden by this
act, or because such individually has made a charge, testified or
assisted, in any manner, in any investigation, proceeding or hearing
under this act.
43 Pa.Cons.Stat.Ann § 995(d).
According to Defendant, following Verizon Wireless’s internal investigation, the
recipient of the package filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”). Thus, Plaintiff’s retaliation claim as it relates to the
Warrendale incident, if protected, would fall under the opposition clause. Defendant argues that
Plaintiff does not assert any facts which demonstrate that her participation in the Company’s
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investigation rose to the level of opposition required for a retaliation claim. In Barber v. CSX
Distrib. Serv., 68 F.3de 693, 698 (3d Cir. 1995), the United States Court of Appeals for the Third
Circuit instructed that courts should analyze the “message” conveyed. Defendant argues that
Plaintiff’s vague allegations suggest that Plaintiff “simply answered questions as a fact witness,”
which does not rise to protected activity under the PHRA.
It may well be that discovery will reveal that during her interview Plaintiff simply
answered questions as a fact witness and made no statement(s) which would qualify as
“protected activity” and, thus, did not engage in protected opposition under the PHRA.
However, until such time, the Court finds that Plaintiff may maintain her retaliation claim of
wrongful termination based on her participation in the internal Warrendale incident investigation.
Similarly, as to Defendant’s remaining arguments, the Court finds and rules that an
evidentiary record must be fully developed and therefore summary judgment is premature at this
stage of the proceeding. Defendant has submitted a number of affidavits in support of its various
arguments; however, Plaintiff and her attorney have not been given the opportunity to depose
any of these witnesses. At this early stage of the litigation, the Court finds and rules that a
significant number of important questions remain on which discovery is necessary.
Conclusion
For the hereinabove reasons, the Motion for Summary Judgment will be granted in part
and denied in part. The Motion will be granted as to Plaintiff’s retaliatory failure-to-hire claim
to the extent that it is based on Plaintiff’s participation in the Warrendale incident investigation
for failure to exhaust administrative remedies. In all other respects, the motion for summary
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judgment will be denied without prejudice to Defendant refilling same after the completion of
discovery.
An appropriate Order follows.
McVerry, J.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LINDA STALLINGS,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CELLCO PARTNERSHIP,
d/b/a VERIZON WIRELESS,
Defendant.
2: 10-cv-01388
ORDER OF COURT
AND NOW, this 24th day of June, 2011, in accordance with the foregoing Memorandum
Opinion, it is hereby ORDERED, ADJUDGED AND DECREED that the Motion for
Summary Judgment filed by Defendant is GRANTED IN PART AND DENIED IN PART as
follows:
(1) The Motion for Summary Judgment is GRANTED as to Plaintiff’s retaliatory
failure-to-hire claim, to the extent that it is based on Plaintiff’s participation in the Warrendale
incident investigation for failure to exhaust administrative remedies; and
(2)
In all other respects, the motion for summary judgment is DENIED as premature.
A Case Management Conference shall be held before the undersigned on Thursday,
June 30, 2011 at 9:00 A.M., Courtroom No. 6C, 6th Floor, United States Post Office &
Courthouse, Pittsburgh, PA.
BY THE COURT:
s/ Terrence F. McVerry
United States District Court Judge
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cc:
Jean E. Novak, Esquire
Strassburger, McKenna, Gutnick & Gefsky
Email: jnovak@smgglaw.com
Amy E. Dias, Esquire
Jones Day
Email: aedias@jonesday.com
Amy K. Pohl, Esquire
Jones Day
Email: akpohl@jonesday.com
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