The opinion of the court was delivered by: Hon. Jerome B. Simandle
SIMANDLE, District Judge:
This matter is before the Court on Plaintiff Reginald L. Cannon's ("Plaintiff") motion for partial summary judgment. [Docket Item 18.] Defendant Bradbury Burial Vault Co. ("Defendant" or "Bradbury Burial") has filed a cross-motion for summary judgment in opposition to the Plaintiff's motion.*fn1
The Plaintiff argues for partial summary judgment as to Count I of his complaint alleging racial harassment in violation of Title VII, 42 U.S.C. 2000e, et seq. The Plaintiff maintains that the Defendant subjected the Plaintiff to a racially hostile work environment and there are no genuine issues of material fact to dispute Plaintiff's prima facie case. The Defendant argues that the Plaintiff has failed to show that the racial discrimination complained of was pervasive and severe and the Defendant further argues that there is no respondeat superior liability in this case. Therefore, the Defendant cross moves for summary judgment dismissing this count of the Plaintiff's complaint.
For the reasons discussed herein, the Court finds that there are genuine issues of material fact which preclude summary judgment and both motions will be denied.
A. Facts and Procedural History
The Plaintiff initially worked for the Defendant from approximately 1995-1997. (Reply Affidavit of Reginald Cannon ¶ 2.) The Plaintiff then returned to work for the Defendant as a laborer in 2004 and continues to work for the Defendant through the present time. (Pl.'s Ex. 14, Certification of Reginald L. Cannon ("Cannon Cert.") at ¶¶ 46, 47, 57).*fn2 The Defendant is in the business of preparing concrete burial vaults for funeral directors for delivery to cemeteries. (Pl.'s Ex. 1, Deposition of Peter Giannone ("Giannone Dep.") at 11:8-11). The Defendant employs approximately 25 individuals. (Giannone Dep. at 12:2-13:21.)
Mr. Lawrence Kenney is the President and 51% owner of Defendant Bradbury Burial. (Pl.'s Ex. 3, Deposition of Lawrence Kenney ("Lawrence Kenney Dep.") at 79:21-80:3.) Mr. William Kenney is the Vice President and 49% owner of Defendant Bradbury Burial. (Lawrence Kenney Dep. at 80:4-80:11). William Kenney also supervises employees of the Defendant. (Pl.'s Ex. 2, Deposition of William T. Kenney ("William Kenney Dep.") at 8:22-9:23). Mr. Peter Giannone is the Plant Manager for the Defendant and is in charge of the drivers and works with William Kenney to supervise the employees in the plant. (Giannone Dep. 10:24-11:7 and Lawrence Kenney Dep. 85:5-15.) Mr. Gary Mason is the shop steward and also serves as the union representative for the union workers. (Lawrence Kenney Dep. at 86:1-4.) Mr. Mason is not a manager. (Giannone Dep. 16:9-13.)
The only managers and supervisors employed with the Defendant are William Kenney and Peter Giannone. (William Kenney Dep. at 30:25-31:5.) As Plant Manager, Giannone also hired employees, terminated employees and disciplined employees. (Giannone Dep. 11:16-21.) Giannone was responsible for handling complaints of harassment. (William Kenney Dep. 37:8-22.) Giannone was responsible for disciplining employees for using a racial term and investigating any incident when an employee used a racial term. (William Kenney Dep. 37:16-22; 48:6-17.) Giannone's immediate supervisor was William Kenney. (Giannone Dep. 11:25-12:3.)
Plaintiff bases the instant action on numerous events where racial terms were used during his employment from 2004 to 2009. These events primarily involve William Hazel and Amin Vasquez who were co-workers of the Plaintiff and admittedly not managers or supervisors. On two occasions, these incidents escalated to physical assault.
On or about May, 2004, shortly after the Plaintiff began his employment with the Defendant, William Hazel called the Plaintiff: "black bastard," "jigaboo," and "you dumb black people." (Cannon Cert. ¶ 2.) Hazel denies making any of these statements. (Def.'s Ex. H, William Kenney Dep. 9:25-11:12.) The Plaintiff complained to Giannone within a day or so of Hazel using these terms. (Cannon Cert. ¶ 2.) Giannone denies speaking to the Plaintiff about this alleged incident. (Def.'s Ex. C, Giannone Dep. 53:8-54:3.) Hazel was never reprimanded for using any words, racial or otherwise, while employed with the Defendant. (Pl.'s Ex. 5, Deposition of William Hazel ("Hazel Dep.") 9:16-24.)
In April 2006, the Plaintiff heard Amin Vasquez state while at work, "I ain't worried bout nothing but these gringos and 'niggers' here." (Cannon Cert. ¶ 4-5.) The Plaintiff immediately went to Giannone to complain about Vasquez's racial epithet but Giannone allegedly simply laughed. (Cannon Cert. ¶ 6.)
The next day, the Plaintiff was involved in a physical altercation with Vasquez. (Cannon Cert. ¶ 4.) Vasquez stated to the Plaintiff "f*ck you 'nigger.'" (Cannon Cert. ¶ 8.) The Plaintiff then asked Vasquez what he said and in response, Vasquez stated that "you are a 'nigger.'" (Cannon Cert. ¶ 9.) The Plaintiff again asked Vasquez what he was calling him and Vasquez responded by approaching the Plaintiff, pointing his finger repeatedly in the Plaintiff's face and stating "f*ck you 'nigger.'" (Cannon Cert. ¶ 10.) The Plaintiff felt threatened. (Cannon Cert. ¶ 10.) Then the Plaintiff and Vasquez engaged in a physical altercation. (Cannon Cert. ¶ 11.)
Co-workers Matthew Gramkowski, Ayasir Sanabria and Erik Justice broke up the fight. (Pl.'s Ex. 6, Deposition of Matthew Gramkowski ("Gramkowski Dep.") 129:16-130:2.) After this fight, Giannone asked Vasquez and the Plaintiff what happened, and the Plaintiff advised that Vasquez called the Plaintiff a "nigger" four times. (Cannon Cert. ¶ 12.) Mr. Sanabria also told Giannone that Vasquez called the Plaintiff a "nigger." (Pl.'s Ex. 7, Certification of Ayasir Sanabria ("Sanabria Cert.") at ¶ 4.) Vasquez was not disciplined for calling the Plaintiff a "nigger." (Sanabria Cert. at ¶ 6.) After this incident, Mr. Giannone stated to both the Plaintiff and Mr. Vasquez that "I could fire both of you or you can both go back to work." (Cannon Cert. ¶ 14.)
Giannone issued a warning to the Plaintiff for calling Mr. Vasquez a "spic." (Def.'s Ex. J.) While Giannone denied speaking to the Plaintiff about this incident in his deposition, Mr. Giannone issued a write up of the situation on April 21, 2006, stating: "Reggie admitted to me that he called Amin a spick cause Amin called him a Nigger first. When Amin was asked, Amin denied the name calling and didn't pay no attention to Reggie's Remark." (Giannone Dep. 53:21-54:3; Def.'s Ex. J.)
Several days later, during work hours, the Plaintiff asked Vasquez not to use his trowel. (Cannon Cert. ¶ 17.) Vasquez threw the trowel on the ground and said, "I don't need to use no 'nigger' trowel." (Cannon Cert. ¶ 18.) The Plaintiff complained about the incident to Giannone and Giannone again did not discipline Vasquez. (Cannon Cert. ¶ 18.)
In January 2007, Hazel, William Kenney, Sanabria and Plaintiff were in the office. When the Plaintiff left the office, Hazel said to Kenney, "look, the little 'coon' thinks we're talking about him." (Sanabria Cert. at ¶ 8.) Hazel then spoke about the "'spics' at the cemetery." (Sanabria Cert. ¶ .) Kenney did not correct Hazel and only laughed. (Sanabria Cert. ¶
8.) Sanabria then told the Plaintiff Hazel had called him a 'coon' in front of Kenney and Kenney laughed. (Cannon Cert. ¶ 19 and Sanabria Cert. ¶ 8.) Hazel denies using or knowing the word "coon." (Hazel Dep. 8:21-9:12.)
The Plaintiff complained to Gary Mason, the shop steward, and Giannone after learning about Mr. Hazel's 'coon' comment. (Cannon Cert. ¶ 21; Giannone Dep. 54:18-55:23.) The Plaintiff was upset and told Giannone the he never believes the Plaintiff because he did not do anything about Vasquez. (Giannone Dep. 55:2-23.) Giannone spoke to Hazel and Hazel denied using the coon word. Kenney told Giannone he did not remember whether Hazel used the coon word or not. (Giannone Dep. 55:18-19.)
However, Kenney told Gary Mason he did believe he heard Hazel say the term 'coon.' (Certification of Gary Mason at ¶ 4.) Hazel was never reprimanded for using any words, racial or otherwise, while employed with the Defendant. (Hazel Dep. 9:16-24.)
In February 2007, Vasquez again called the Plaintiff a "nigger." (Cannon Cert. ¶ 22.) Within a day, the Plaintiff complained about the incident to Giannone. (Cannon Cert. ¶ 22 and Giannone Dep. 20:9-21:10.) Vasquez was not disciplined. (Cannon Cert. ¶ 23.)
The Plaintiff also complained to Giannone that Vasquez threatened him. (Giannone Cert. 61:3-5.) The Plaintiff told Giannone if Vasquez attacked him, he would hit Vazquez. (Giannone Cert. 61:8-11; 62:14-22.) Giannone asked Vasquez whether he threatened the Plaintiff and Vasquez responded no. (Giannone Cert. 61:3-17.) Giannone did not notify Lawrence Kenny or William Kenney of this incident and did not discipline Vasquez. (Giannone Cert. 62:7-12.) However, Giannone issued a written warning to the Plaintiff for threatening a co-worker. (Giannone Cert. 61:3-62:25.) The Plaintiff grieved the written warning to the union and it was subsequently withdrawn. (Declaration of Lawrence Kenney ¶ 26.)
Following these incidents, a notice was given to all of the Defendant's employees with their pay checks on March 1, 2007. This notice stated that the "Company will not and does not tolerate harassment of employees in the work place or any work related situation!!" (Pl.'s Ex. 10.) The notice advises ...