Reid v. Temple Univ. Hosp. Inc., CIVIL ACTION NO. 17-2197

CORONE REID, et al. v. TEMPLE UNIVERSITY HOSPITAL INC., et al.

CIVIL ACTION NO. 17-2197

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

August 15, 2019

MEMORANDUM

Bartle, J.

Plaintiffs Corone Reid and Donny Odey ("Odey") have sued under 42 U.S.C. § 1981 for racial discrimination in the termination of their employment. Before the court is the motion of defendants Temple University Hospital, Inc. ("TUH") and Yasser Al-Khatib ("Al-Khatib") for summary judgment on Odey's claims under Rule 56 of the Federal Rules of Civil Procedure.

I

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A dispute is genuine if the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). We view the facts and draw all inferences in favor of the nonmoving party. See In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir. 2004).

Summary judgment is granted where there is insufficient record evidence for a reasonable factfinder to find for the nonmovant. See Anderson, 477 U.S. at 252. "The mere existence of a scintilla of evidence in support of the [nonmoving party]'s position will be insufficient; there must be evidence on which the jury could reasonably find for [that party]." Id. In addition, Rule 56(e)(2) provides "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for the purposes of the motion." Fed. R. Civ. P. 56(e)(2).

II

The following facts are undisputed. Odey is a black man who immigrated to the United States from Nigeria in 1989. He was hired by TUH sometime in 1997 or 1998 as a Crisis Response Technician ("CRT") at the main campus. Odey transferred to TUH's Episcopal Campus ("Episcopal") after two or three years, where he worked in the Crisis Response Center ("CRC"), a treatment unit for patients with short-term acute behavioral health issues. Al-Khatib became Odey's supervisor in 2012. Al-Khatib was born in Lebanon and worked as a nurse manager for TUH. Khatib gave Odey good performance ratingsthroughout his time with TUH. In 2012, Odey received a performance rating of 2.12 out of 3.0. In 2013, his performance rating was 2.44 out of 3.0, while in 2014 it was 2.6 out of 3.0.

Sometime in 2014, Odey complained to Al-Khatib about an inappropriate remark made by a white nurse named Bob Hansen ("Hansen"). Hansen had become upset because he believed Odey let a patient into a bathroom where she had been found trying to wash her hair in the sink. Hansen told Odey he was going to write Odey up and send him back to his "African black ass country" and called Odey a "knucklehead." Odey reported this incident to Al-Khatib the next day, and Al-Khatib promised to investigate.

The next day, Al-Khatib called Odey into his office where Hansen was already sitting. According to Odey, Al-Khatib told him "if I don't want to work here no more, there are too many doors there, I can go through any of the doors or he's going to use everything in his power to get rid of me." Al-Khatib warned both men that future misconduct could lead to termination and urged them to work together in a professional manner. Odey does not recall any other problems with Hansen before or after this incident. In October 2014, Al-Khatib terminated Hansen's employment for violating TUH's rules regarding the reporting of arrests.

In January 2015, Odey was involved in an oral confrontation with a fellow CRT named Stephen John ("John"), who Odey describes as being of "East Indian" descent. Odey and John had a dispute regarding patient paperwork, which led to both men raising their voices at each other. Thereafter, Al-Khatib called Odey, John, and their union representative to his office. Al-Khatib did not let Odey explain what had happened and threatened to "get rid" of Odey if he "ever hear[d] anything from [Odey] again or if [Odey] ever [did] anything again." At the conclusion of the meeting, Al-Khatib issued identical "initial discussion" disciplines to both Odey and John, which are the least serious forms of discipline.

On May 28, 2015, an involuntarily committed patient escaped from the CRC by slipping out a door behind the unit secretary at approximately 5:40 p.m. CRTs are required to conduct rounds in the CRC during which they physically observe and record the condition of each patient at 30-minute intervals. Odey was the CRT assigned to conduct the rounds at 6:00 p.m. and 6:30 p.m. Video surveillance of the CRC shows Odey picking up the rounds sheet at approximately 6:10 p.m. and filling out the form for over a minute while standing in an area with no view of patients, and then returning to an internal office with no view of patients until around 7:00 p.m.

At 7:30 p.m., a nurse conducting rounds discovered the patient's absence. He subsequently notified Al-Khatib and the police. Allen Peters ("Peters"), another CRT, had been assigned to conduct the 7:00 p.m. rounds but had failed to do so until after the patient's absence had been discovered during the 7:30 p.m. rounds. Peters subsequently noted a "?" for the missing patient on the 7:00 p.m. rounds sheet.

After reviewing the round sheets and video surveillance of the unit, Al-Khatib called Odey and his union representative to a meeting on June 1, 2015. During that meeting, Odey admitted to falsely certifying that he had conducted the 6:30 p.m. rounds. He further stated that another CRT, Tim Davis ("Davis"), had performed the 6:00 p.m. rounds on behalf of Odey. At the conclusion of the meeting, Al-Khatib terminated Odey's employment for falsification of records.

Al-Khatib separately questioned Davis about the 6:00 p.m. rounds. Davis, who is African-American, provided a written statement that he was discharging a patient and had written "D/C" in the 6:00 p.m. space for that patient and then started initialing the bottom of the column out of habit when Odey had interrupted him. Davis denied completing the entire 6:00 p.m. rounds sheet or otherwise attempting to suggest he had done so. Davis was not disciplined. Peters, who is also African-American, was also considered for termination for hisactions related to the 7:00 p.m. rounds. The union interceded on Peters' behalf to argue that his conduct was less severe than Odey's because he did not intentionally falsify records but merely failed to conduct his rounds. Peters was ultimately issued a written warning.

The union filed a grievance challenging Odey's termination. After the grievance was denied, the union appealed to arbitration. The arbitrator denied Odey's appeal. He found that TUH had just cause to terminate Odey and the fact that Peters and Davis were not terminated was not evidence of disparate treatment. Neither Odey nor the union raised any issues of race discrimination at the grievance or arbitration.

III

Section 1981 provides in relevant part:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

42 U.S.C. § 1981(a). Section 1981 prohibits intentional racial discrimination, which includes discrimination against "identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry orethnic characteristics." Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987). It does not prohibit discrimination solely on the basis of national origin. Id.; see also Bennun v. Rutgers State Univ., 941 F.2d 154, 172 (3d Cir. 1991). Thus, in Al-Khazraji the Supreme Court held that if the plaintiff could "prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or his religion, he will have made out a case under § 1981." 481 U.S. at 613. Here, Odey has alleged repeatedly in the amended complaint that he was discriminated against "because of his race, color, ethnicity and national origin." Such claims of national origin discrimination are improper under § 1981. We therefore will interpret Odey's claims as alleging discrimination on the basis of race, color, and/or ethnicity.

To establish a prima facie case of discrimination under § 1981, a plaintiff must allege: (1) that he is a member of a racial or ethnic minority; (2) that he suffered an adverse employment action; (3) that he was qualified for his position; and (4) that the adverse action occurred under circumstances giving rise to an inference of discrimination. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410-11 (3d Cir. 1999). "If a plaintiff fails to raise a genuine dispute of material fact as to any of the elements of the prima facie case, [he] has not met[his] initial burden, and summary judgment is properly granted for the defendant." Burton v. Teleflex, Inc., 707 F.3d 417, 426 (3d Cir. 2013).

To establish an inference of discrimination, a plaintiff may rely on, among other things, allegations that the employer treated more favorably similarly situated persons not within the protected class or that the employer has discriminated against other persons within the plaintiff's protected class. Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d Cir. 1998). To be considered similarly situated, comparator employees need not be identically situated but must be similarly situated in all...