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Howard L. Harris v. Railroad Constructors

December 7, 2010


The opinion of the court was delivered by: Honorable Joseph E. Irenas


IRENAS, Senior District Judge:

Plaintiff Howard L. Harris ("Plaintiff") initiated this employment discrimination action against Railroad Constructors, Inc. ("Defendant"). Plaintiff alleges that he was the victim of racial and sexual harassment and retaliation.*fn1 Pending before the Court is Defendant's Motion for Summary Judgment.


Defendant is engaged in the business of building, repairing and maintaining railroad tracks for industries, railroads and transit systems.*fn2 (Def's 56.1 Stat. ¶2)*fn3 Plaintiff, an African-American male, applied for a position as a heavy laborer with Defendant in November 2006 and began work at the end of December 2006. (Id. ¶3; Compl. ¶3)

On the first day of work, Plaintiff spent approximately three to four hours reviewing Defendant's policies, including a harassment policy, with Lawrence Wilkins ("Wilkins"), Defendant's acting EEO officer.*fn4 (Def's 56.1 Stat. ¶¶5-7) Plaintiff worked for three weeks in "the yard," Defendant's storage facility. (Id. ¶10) Following his assignment in the yard, Plaintiff worked at a number of different job sites under the supervision of various foremen. (Id.) In March 2007, Plaintiff was assigned to a job site in Philadelphia under the supervision of Larry Dameshek ("Dameshek"). (Id. ¶12)

Plaintiff alleges that on March 13, 2007, Dameshek harassed him, but the exact nature of the incident is in dispute. According to Plaintiff, during a break Dameshek ordered Plaintiff to "come sit on my lap." (Pl's Ctr Stat. ¶11) Plaintiff sat next to him to see what he wanted, but Dameshek again told him to sit on his lap. (Id.) Plaintiff walked away, but Dameshek followed and "kept swinging at my behind," while the other employees laughed. (Id.) Dameshek continued to harass Plaintiff even after he returned to work and allegedly told Plaintiff "I'm going to stick my dick in your ass, you'll like it." (Id.) In addition, Dameshek allegedly made reference to Plaintiff's skin color by telling him that he had "Hershey Kiss ears."*fn5 (Id.; Compl. ¶23)

Dameshek denied that he asked Plaintiff to sit on his lap, and denied that he had directed any sexual or racial remarks to Plaintiff. (Id. ¶ 24) In his deposition testimony, Dameshek offered his version of the alleged harassment:

I believe we were having coffee break [sic]. I mean you got four or five guys standing around, of course, sex is going to come up. We're construction workers. The subject got onto anal sex. One of the guys looked at another guy and said, oh, that's disgusting. One of the guys said, well, only if it's with a man. So, then, it was, you know, another--ewe, icky.

And so, then, of course, I had to turn around and say, well, you know, it really doesn't matter. A person's asshole is a person's asshole. It don't matter what it's connected to, an asshole's an asshole. And then there was laughing and chuckling and stuff like that. Further on--I think I went on to say that it doesn't make you gay or homosexual, because an asshole is an asshole. (Def's 56.1 Stat. ¶25)

Plaintiff called Riggs from the job site to complain. (Id. ¶15) Riggs called Plaintiff later that night to discuss the incident. (Id. ¶16) Riggs told Plaintiff not to return to the Philadelphia job site, but instead report to the yard for a meeting.*fn6 (Id.) Riggs immediately notified Wilkins of the incident. Wilkins instructed Riggs to separate Plaintiff and Dameshek and made sure that Plaintiff would receive the same rate of pay for his work the following day in the yard as he did at the site. (Id. ¶18)

The next day Wilkins met with Plaintiff to discuss the incident and informed Plaintiff that he would speak to Dameshek and the other workers. (Id. ¶19) According to Plaintiff, Wilkins said he would include a memo on sexual talk with employees' paychecks. (Id. ¶20) Wilkins also informed the president of Defendant, James Daloisio ("Daloisio"), about the incident and the need for an investigation. (Id. ¶22)

After interviewing both Plaintiff and Dameshek, Wilkins spoke to the four other workers from the Philadelphia job site. (Id. ¶27) Three of the employees reported that they did not hear any inappropriate comments. (Id.) However, John Davis, Plaintiff's brother-in-law, gave an account that was nearly identical to Plaintiff's. (Id.) After his investigation, Wilkins concluded:

Based on the multiple interviews of individuals present at the Philadelphia work site on 3/13/07 the following has been determined: It is probable that there were statements made that would possibly offend others or that one might not want to be a party to. It is not evident that any comments were directed at any individual. It is not evident that any individual approached anyone and specifically raised objections to the comments. It is not evident that the comments were continued after a request was ...

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