Walker v. E.I. Dupont De Nemours & Co.

199 F.Supp.3d 883

Robert E. WALKER, Jr., Plaintiff,

v.E.I. DUPONT DE NEMOURS AND CO., Defendant.

Civ. No. 14-1500-SLR

United States District Court, D. Delaware.

Signed August 11, 2016

Robert E. Walker, Jr., Newark, Delaware. Pro se plaintiff.

Kathleen Furey McDonough, Esquire, and Stephanie E. O'Byrne, Esquire, Potter Anderson & Corroon, LLP, Wilmington, Delaware. Counsel for defendant.

MEMORANDUM OPINION

ROBINSON, District Judge

I. INTRODUCTION

Plaintiff Robert E. Walker, Jr. ("plaintiff") filed this lawsuit alleging employment discrimination pursuant to 29 U.S.C. §§ 621, et seq., and 42 U.S.C. §§ 12101, et seq. He proceeds pro se. Before the court is defendant E.I. du Pont de Nemours and Company's ("defendant") motion for summary judgment and plaintiff's opposition thereto. (D.I. 24, 25, 26, 28, 29) The court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons discussed, the motion will be granted in part and denied in part.

II. BACKGROUND

Plaintiff alleges that he was sexually harassed and that defendant discriminated against him by reason of age and disability. (D.I. 1) Plaintiff's employment was terminated on March 29, 2012. (Id. ) He was 59 at the time. (D.I. 26, ex. A at 32)

Defendant hired plaintiff in December 1989. (Id. at 7) Plaintiff was called to active duty during the first Gulf War and served approximately eight months. (Id. at 12) Prior to his termination, plaintiff was a records management specialist in defendant's corporate records information management ("CRIM")/microfilm group, having held the position since 2004. (Id. at 10-11)

Plaintiff testified that he was diagnosed with post traumatic stress disorder ("PTSD") in 2005. (D.I. 26, ex. A at 19) The diagnosis was the result of events that occurred during his military service during the 1991 Gulf War, coupled with the 2004 suicide of his son. (Id. at 20) His symptoms include anger issues, flashbacks and nightmares, hypervigilance, guilt, and difficulty leaving the house. (D.I. 28, ex.) Plaintiff testified that his PTSD did not affect his ability to perform his job. (D.I. 26, ex. A at 22)

Brown, who supervised plaintiff, has worked in plaintiff's group since 2007. (D.I. 26, ex. A at 11; Ex. B at FRW4) She experienced plaintiff's behavior issues and also heard about them from different members of the group. (D.I. 26, ex. B at FRW4) She described outbursts where plaintiff could not control himself. (Id. ) Plaintiff told his co-workers about his condition in an effort to educate them, and they knew he attended therapy sessions and counseling. (Id. at 55, 69)

Plaintiff testified that he was bullied by three of his co-workers. (Id. at 61) None of these individuals were involved in hiring or firing decisions, but had some input. (Id. at 66) His co-workers called him names such as "the Unabomber" and "Dietrich"¹ to his face. (Id. at 54-56, 78)

Plaintiff testified he was called "the Unabomber" because "they were afraid I would go postal and harm them in some way because they didn't like the expression on my face" and because of his moods. (Id. at 57-58) According to the co-worker, plaintiff looked like the Unabomber because of a coat he wore with the hood up during the winter. (Id. at 79-80) Plaintiff also testified that his co-workers told him that he was "being miserable looking." (Id. at 57, 79) Plaintiff testified that certain co-workers made comments about being in the military (even though they were not) or wanting to join the military (even though they had not). (Id. at 81) Plaintiff found these commends offensive and likened them to stolen valor. (Id. )

Plaintiff also testified that he was sexually harassed by one co-worker who texted him several pornographic images over a two-year time-frame. Plaintiff asked the co-worker to stop sending the images on three occasions and, after the third request, told him that he was going to HR. (Id. at 96-97) Although plaintiff never informed Brown about the pornographic pictures, the texting stopped with the threat of going to HR in February or March 2012. (Id. at 18, 94-95, 97 98)

Because of his PTSD, plaintiff asked Brown to move him from the pod containing four work stations that he shared with three co-workers. (Id. at 70-72, 75) Plaintiff testified he told Brown that he was making the request based upon his PTSD and to be away from the environment in the pod that was affecting him, but he also testified that he could not be specific as to what he actually said. (Id. at 76) Plaintiff mentioned the attitude of the people, comments (including references to suicide) that were being made, the negativity, and that, with the move, he could work better. (Id. at 76-77) Plaintiff did not mention the name-calling because it had not taken place at that point. (Id. ) Plaintiff asked to be moved to a separate designated work area, an area he had been allowed to work in during a specific work assignment. (Id. at 72-74) The requested move was from inside the pod to an outside pod, but it was denied as too expensive because of turning on an internet port and a telephone line. (Id. at 75)

According to plaintiff, every month prior to his termination, Brown asked him when he was going to retire. (Id. at 32) She asked approximately six times. (Id. at 33) Plaintiff told Brown that, when he reached 62, he would take a look at it and, based upon the economy, make a decision whether to stay or continue his career. (Id. ) Plaintiff testified that defendant treated younger people more favorably. (Id. at 36, 38-39)

The week of February 12, 2012, Brown and plaintiff discussed his performance rating for 2011. (D.I. 26, ex. B at FRW4) Thereafter, plaintiff spoke to Mary Ann Bradley ("Bradley") in HR about everything that was going on, including the incidents and comments. (D.I. 26, ex. A at 99) Plaintiff did not recall telling Bradley that he thought he was being targeted because of his PTSD, but has testified that defendant's decision to terminate his employment was based upon his PTSD condition. (Id. at 39, 100) He testified that following his dismissal, defendant held meetings regarding the treatment of people with disabilities. (Id. at 42-44) Plaintiff believes the meetings were directly related to his dismissal, but he did not talk to anyone about what transpired during the meetings. (Id. at 44-45)

Defendant conducted an investigation into plaintiff's involvement in two incidents in March 2012. (D.I. 26, ex. B) Its investigation found that, on March 9, 2012, plaintiff made a comment about a co-worker's Eagle's jersey; she responded, and called plaintiff a "grouch." (D.I. 26, ex. B at FRW1) In turn, plaintiff yelled that he was "tired of working with you fucking children." (Id. ) He then left the building for approximately 30 minutes. (Id. ) Plaintiff received a verbal warning as a result of this incident. (Id. at FRW4)

The investigation found that on March 14, 2012, Brown and plaintiff had a "great" discussion and set goals for plaintiff, focusing on his strengths and things he needed to work on. (Id. ) Brown stated it was a very positive interaction. (Id. ) At the end of the day, however, plaintiff had a verbal altercation in the site parking lot with a co-worker. (Id. at FRW2) According to the co-worker's version of the facts, plaintiff called him a "fucking backstabber" multiple times and asked "do you want me to blow my head off?," then plaintiff followed him back into the office building where he reported the incident to Brown. (Id. at FRW4-5) During the subsequent meeting, Brown told plaintiff that he could not yell and curse in the office. (Id. ) Plaintiff responded, "there is nothing I can do about it," and Brown responded, "yes there is." (Id. at 2) Brown told plaintiff to go home and she would contact HR. (Id. ) Plaintiff said he missed his son and left the office crying. (Id. ) Brown feels plaintiff used his son as an excuse for his anger/behavior with others in the office. (Id. at FRW5)

Plaintiff was interviewed during the investigation and admitted saying "fuck" only once on March 14, 2012. (Id. at FRW3) HR also interviewed witnesses to both incidents and substantiated the complaints that plaintiff yelled and cursed at co-workers. (Id. at 3-5) The investigation found that plaintiff's co-workers were fearful for their personal safety when plaintiff was in a dark or bad mood. (Id. ) Some team members admitted that plaintiff could be a pleasure to work with on some days, but most days they walked on eggshells. (Id. at FRW3)

Plaintiff never saw the investigation report and was not given an opportunity to rebut the report. (D.I. 26, ex. A at 100-101) During the investigation, plaintiff was told to stay away, not to worry about anything, and that he would not be fired or terminated. (Id.) ) Meetings with plaintiff's supervisors and co-workers were scheduled on March 16, 2012 and May 11, 2012.² (D.I. 26, ex. D)

Plaintiff's understanding is that he was terminated based upon comments people made during the investigation, partially because of Brown, and something to do with defendant's belief that he directed profanities at co-workers. (Id. at 100, 102-03) During his deposition, when asked about the parking lot incident, plaintiff did not deny using profane language in the hallway coming back from the parking lot. (Id. at 103) With regard to the Eagle's jersey incident, plaintiff recalled that it was his co-worker, not him, who went on a rant. (Id. )

On March 29, 2012, plaintiff received a separation letter that his employment was terminated effective that day. (D.I. 26, ex. C) Plaintiff, who was 59, had worked twenty years with defendant and, as a result, certain retirement benefits would have kicked in at age 60 had he remained employed. (D.I. 26, ex. A at 106) Plaintiff filed a charge of discrimination in November 2012, and received a notice of suit rights dated September 22, 2014. (D.I. 1, exs.) He commenced this action on December 22, 2014.

III. STANDARD OF REVIEW

"The court shall grant summary judgment if the movant shows that...