Wilson v. Industrial Commercial Cleaning Group, Inc.

SHELBY WILSON v. INDUSTRIAL COMMERCIAL CLEANING GROUP, INC., ET AL.

Civil Action No. 19-2198

United States District Court, E.D. Pennsylvania

July 28, 2021

MEMORANDUM

R BARCLAY SURRICK, J.

Presently before the Court is Industrial Commercial Cleaning Group. Inc.'s, Kim Jordan's, and Ed Jordan's Motion for Summary Judgment. (ECF No. 30.) For the reasons that follow Defendants' Motion will be denied.

I. BACKGROUND

This is an employment discrimination action under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C § 2000e et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Pennsylvania Human Relations Act (“PHRA”), 42 Pa. Stat. § 951, et seq. Plaintiff Shelby Wilson brought multiple claims against Defendant Industrial Commercial Cleaning Group. Inc. (“ICCG”) related to her termination. Plaintiff contends that she was terminated due to harassment and discrimination on the basis of her sex and disability. Plaintiff alleges that Defendants retaliated against her after she complained of the harassment and discrimination and for seeking accommodations for her disability. In addition, Plaintiff claims Kim Jordan and Ed Jordan aided and abetted ICCG's harassment, discrimination, and retaliation in violation of the PHRA. After a review of the summary judgment record, we are satisfied that issues of material fact exist and must be resolved by a jury at trial.

A. Facts

Defendant ICCG is a New Jersey corporation that provides full-service facility support maintenance. (ICCG's Employee Policy Manual, Defs.' Mot., Ex. A.) Defendant Kim Jordan is the President and CEO of ICCG. (Id.) Defendant Ed Jordan is identified as a “consultant” to ICCG who supervises the SEPTA Trash & Debris Cleaning Laborers. (E. Jordan Affidavit, Defs.' Mot., Ex. D.)

1. Plaintiff's Hiring

In July 2017, ICCG was hired to complete a special cleaning project at the College of New Jersey (“College of New Jersey Project”). (Id.) In order to complete the project on time, Ed Jordan authorized Janitorial Supervisor Butch Lewis to hire eight additional cleaners. (Id.) Around the same time, Plaintiff asked Mr. Lewis for a job. (Wilson Dep. 31, Pl.'s Opp'n., Ex. A.) Mr. Lewis offered Plaintiff to work at the College of New Jersey Project and she accepted. (Wilson Dep. 31.) She worked at the College of New Jersey Project for two days. (Id. at 32.) Plaintiff then met with Ed Jordan at ICCG's main office to apply for a permanent position. (Id. at 3.) Ed Jordan hired Plaintiff as a laborer and assigned her to the SEPTA Trash & Debris Cleaning crew. (E. Jordan Affidavit.) Plaintiff testified that neither ICCG nor Ed Jordan identified her direct supervisor, job responsibilities, or working conditions. (Wilson Dep. 34.)

Plaintiff's job title was Trash and Debris Removal. (Id. at 34.) According to Plaintiff, Mr. Lewis was her “district manager” and Kevin Nicholson was her “supervisor.” (Id. at 55.) Although Mr. Nicholson's title was “crew chief, ” Plaintiff and other members of her crew referred to him as “supervisor.” (K. Jordan Dep. 38, Pl.'s Opp'n., Ex B.) Plaintiff's work schedule was Monday through Friday from 7:30 a.m. until 4:00 p.m. (Wilson Dep. 35.)

2. Plaintiff's Disability

Plaintiff testified that she suffers from bronchitis. (Id. at 43.) Plaintiff asserts that her condition “causes her to suffer severe respiratory issues when exposed to high levels of pollen and mold, and/or while working in certain outdoor conditions such as woods and brush.” (Am. Compl., ECF No. 12.) Plaintiff testified that she asked Mr. Lewis, Mr. Nicholson, Kim Jordan, Ed Jordan for protective equipment, such as coveralls, a mask, or a jacket. (Wilson Dep. 48.) When Plaintiff asked Mr. Nicholson about the equipment, he told her that he was “working on it.” (Id.) When Plaintiff asked Mr. Lewis about the equipment, he told her that it had to be approved by Kim Jordan and Ed Jordan because they would have to pay for it. (Id.) When Plaintiff requested protective equipment from Ed Jordan, he told her that she was causing trouble at the company because no one had ever asked for accommodations. (Id. at 58.) Plaintiff testified that despite her requests for protective equipment, she was forced to work in the rain and cold weather. (Id. at 44.) Plaintiff suffered a chest infection that required her to be hospitalized for several days. (Neumann University Hospital Records Pl.'s Opp'n., Ex. C.)

In September 2017, Plaintiff's physician diagnosed her with acute bronchitis. (Id.) In January 2018, Plaintiff was hospitalized again, and she provided medical documentation to Mr. Lewis and Mr. Nicholson. (Wilson Dep. 46.) Plaintiff admits that she did not inform Kim Jordan about her condition, however, she did inform Ed Jordan directly. (Id.)

On January 12, 2018, Plaintiff was working outside when it began to rain. (P000121, Pl.'s Opp'n., Ex. D.) Plaintiff requested to leave because she was afraid that her medical condition would cause her to contract another respiratory infection. (Id.) According to Plaintiff, Mr. Nicholson agreed that she could leave. (Id.) A few days later, Mr. Nicholson reported Plaintiff for “job abandonment, ” claiming that she walked off the job. (P000126, Defs.' Mot., Ex. P.) As a result, Ed Jordan suspended Plaintiff for one week and he authorized Mr. Nicholson to enforce the suspension. (E. Jordan Affidavit.)

3. Hostile Work Environment

Mr. Nicholson harassed Plaintiff with sexual questions and comments. Plaintiff alleged that Mr. Nicholson asked her questions such as:

“Do you shave your p*ssy?”

“Do you like to be licked?”

“How do you and your girlfriend have sex?”

“What positions do you and your girlfriend use?”

“Do you and your girlfriend use toys?”

“Did you ever mess with men before?”

“Do you like big d*cks?”

“Can you take a d*ck?”

“How do you like your p*ssy ate?”

(Wilson Dep. 65.) According to Plaintiff, she endured this harassment daily. (Id.) It occurred at their work site or inside their work truck. (Id.) Plaintiff testified that Mr. Nicholson told her that she was “sexy” every time she smiled. (Id. at 67.) Plaintiff asked Mr. Nicholson not to say things like that to her. (Id. at 68.) Plaintiff claims that other employees overheard Mr. Nicholson's comments. (Id.)

Plaintiff reported Mr. Nicholson's conduct to Mr. Lewis. (Id. at 78.) Mr. Lewis told Mr. Nicholson to stop. (Id. at 81.) Eventually, Mr. Lewis told Plaintiff that she needed to report Mr. Nicholson's behavior to Kim Jordan, President and CEO of ICCG. (Id. at 78.) Plaintiff wrote a letter to Kim Jordan. (Id. at 122.) The two attempted to meet, but no meeting occurred. (Id. at 78.) Plaintiff called Kim Jordan's cellular phone several times and left her voicemails. (Id. at 87.) Plaintiff also called Ed Jordan on his personal cell phone to tell him about the way Mr. Nicholson had been treating her. (Id.) According to Plaintiff, no matter how much she complained, nothing changed, and Mr. Nicholson's vulgar comments continued. (Id. at 70.)

Plaintiff never received a copy of ICCG's sexual harassment policy or protocol and requested one on several occasions. (P000089, Pl.'s Opp'n., Ex. F.) The sexual harassment policy that was in place at the time stated that the individual was to contact her supervisor. (K. Jordan Dep. 30.) The sexual harassment policy did not go into detail regarding what to do if an employee felt that they were being sexually harassed. (Id.) Mr. Nicholson and Mr. Lewis did not receive formal training in discrimination and harassment. (Id. at 42.)

In October 2017, Mr. Nicholson showed up around Plaintiff's home. (Wilson Dep. 74.) Mr. Nicholson asked her to come outside to “chill” with him, stating he wanted her to be his “pretty young thing.” (Id.) Plaintiff rejected Mr. Nicholson's advance. (Id.) She testified that everything changed after that. (Id.) One employee testified that “[she] had it real good and then it just turned real bad out of nowhere. So I don't -- I don't know whatever happened. Something happened after work or something like that. I don't know, but it went real good to real bad.” (Ed Floyd Interview, Pl.'s Opp'n., Ex. N.) Plaintiff testified that she enjoyed working at ICCG until Mr. Nicholson made it uncomfortable. (Wilson Dep. 42.)

4. January 19 Meeting

On January 19, 2018, Plaintiff, Kim Jordan, Ed Jordan, Mr. Lewis, and Mr. Nicholson met. (Id. at 90.) At that meeting, Plaintiff informed Kim Jordan and Ed Jordan that Mr. Nicholson had been sexually harassing her at work. (Id.) Based on Plaintiff's accusations, Kim Jordan determined that ICCG would have to investigate. (Audio Recording, Defs.' Mot., Ex. G.) Kim Jordan and Ed Jordan assigned Plaintiff to a different work crew while ICCG conducted its investigation. (Id.) ICCG claims it was unable to substantiate Plaintiff's allegations against Mr. Nicholson. (K. Jordan Dep. 23.)

5. Plaintiff's Employment After January 19 Meeting

Since their meeting, Plaintiff received several write-ups. ICCG denied Plaintiff opportunities to work overtime. (Wilson Dep. 41.) Mr. Nicholson reported several acts of insubordination to Kim Jordan. (K. Jordan Dep. 89.) As a result, Kim Jordan believed Plaintiff was generally insubordinate. (Id.)

In April 2018, ICCG claims that Plaintiff's performance appeared to be intentionally egregious. On April 23, 2018, Plaintiff's new supervisor, Robert Mills, issued Plaintiff a warning for driving her personal vehicle while on duty and onto SEPTA locations. (Employee Disciplinary Action Notice, Defs.' Mot., Ex. J.)

Kim Jordan began to believe that Plaintiff's conduct was impacting the overall service ICCG provided. (Robert Mills Interview, Defs.' Mot., Ex. P.) On May 14, 2018, Kim Jordan decided to transfer Plaintiff back to her original...