Free Compendium of Unreported Decisions - District Court of Delaware - Delaware

Case 1:05-cv-00046-JJF

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Not Reported in F.Supp. Not Reported in F.Supp., 1992 WL 714968 (D.Del.) (Cite as: Not Reported in F.Supp.) Pagel

Briefs and Other Related Documents Only the Westlaw citation is currently available. United States District Court, D. Delaware. Harold PARK, Plaintiff,
v.

GEORGIA GULF CORPORATION, Alfred Fituossi, and William H. Baker, Defendants. Civ. A. No. 91-569 (RRM). Sept. 14, 1992. David Staats, of Law Office of Lawrence F. Hartnett, Hockessin, DE, for plaintiff. Ralph K. Durstein, III, of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, W. Lyman Dillon and Deborah A. Sudbury, of Jones, Day, Reavis & Pogue, Atlanta, GA, for defendants. MEMORANDUM OPINION McKELVIE, District Judge. *1 The plaintiff in this case, Harold Park, commenced this action against defendants Georgia Gulf Corporation ("Georgia Gulf), Alfred Fituossi ( "Fituossi"), and William Baker ("Baker"). Mr. Fituossi and Mr. Baker are employees of Georgia Gulf. The plaintiff alleges numerous complaints all relating to his discharge from the employ of Georgia Gulf. Most importantly, he alleges that Georgia Gulf fired him notwithstanding an oral contract in which Georgia Gulf promised not to fire the plaintiff in return for plaintiffs information concerning plant morale and safety. Plaintiff also alleges, inter alia, that his discharge was improper under his employment contract, and that his superior, Fituossi, defamed him, ultimately leading to the plaintiffs dismissal. The defendants' motion for summary judgment is now before the court. FACTS

In 1975, Harold Park took a job as a maintenance supervisor with Diamond Shamrock Corporation. In 1978, following a shutdown of the plant where Mr. Park had been employed, Diamond Shamrock transferred Mr. Park to its polyvinyl chloride ("PVC ") plant in Delaware City, Delaware, where Mr. Park became a construction supervisor. In the next year, Mr. Park became a maintenance supervisor at the PVC plant. In 1982, Diamond Shamrock sold the PVC plant to Ethyl Corporation. In 1983, Ethyl Corporation sold the plant to Georgia Pacific Corporation. In late 1984 and early 1985, Georgia Gulf acquired the plant from Georgia Pacific Corporation. On July 29, 1986, Mr. Park and Georgia Gulf entered into an "Employee Confidential Information and Invention Agreement." The agreement opened with the following language: WHEREAS, the Employee desires to be employed by the Corporation, or, if now employed, that such employment shall continue, NOW THEREFORE, in consideration of such employment, the Corporation and the Employee agree as follows.... Docket Item ("D.I. 73"), at A-205a. The balance of the agreement discussed proprietary rights to new inventions, disclosure, etc. Georgia Gulf also promulgated an Operating Policy Manual. The manual, while containing provisions for involuntary terminations, specifically maintained that Georgia Gulf could terminate an employee at any time, regardless of cause. D.I. 64, atA-321. Mr. Park received raises in each year from 1980-1989. At least two of Mr. Park's supervisor's recalled Mr. Park's satisfactory performance on the job. In 1987, Georgia Gulf transferred David DiPiero (" DiPiero") to the Delaware City Plant, where he soon became Plant Manager. Prior to becoming

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Not Reported in F.Supp. Not Reported in F.Supp., 1992 WL 714968 (D.Del.) (Cite as: Not Reported in F.Supp.) Plant Manager, Mr. DiPiero became aware of problems involving Mr. Park. In one instance, Mr. Park had gotten into an altercation with the (then) Plant Manager after Mr. Park asked not to go to an out of town training seminar. After he became Plant Manager, however, Mr. DiPiero had Mr. Park report directly to him. In October of 1988, Mr. DiPiero hired defendant Mr. Fituossi as Maintenance Superintendent. Mr. Fituossi had never worked in a PVC plant. Mr. Park now reported to Mr. Fituossi. From the outset, Mr. Fituossi and Mr. Park did not get along. Mr. Fituossi closely supervised Mr. Park; Mr. Park thought Mr. Fituossi did not respect his ability to do his job. *2 Much of the enmity arose from an incident that occurred soon after Mr. Fituossi's hiring. In that incident, Mr. Fituossi challenged Mr. Park to a contest to see who could find the cheapest motor for a certain part of the plant. Mr. Fituossi found the cheaper motor, but it was not enclosed as required by regulation. Mr. Fituossi thereupon ordered maintenance to modify the motor in order to enclose it. The maintenance staff, supervised by Mr. Park, refused to make such modifications, citing potential safety problems. Mr. Park and Mr. Fituossi argued about the incident. Mr. Fituossi then rescinded his order to install the motor. Mr. Park believes this incident touched-off a vendetta on the part of Mr. Fituossi against Mr. Park. Mr. Park cites several instances of unfair treatment, including: taking authority from Mr. Park's hands; disparaging Mr. Park's competence and intellect in front of Mr. Park's coworkers; misrepresenting his job performance to DiPiero ( e.g., Mr. Baker remarking that Mr. Park was " disruptive, abusive, he spends all his time on the telephone or visiting, playing cards, and I can't work with him." D.I. 72, at A-65); placing Mr. Park in a corner and making him do his book work standing up; and disallowing Mr. Park access to a telephone. Noting his failure to improve Mr. Park's performance (for example, Fituossi took Mr. Park to a seminar course for Maintenance Supervisors), Mr. Fituossi reassigned Mr. Park from Maintenance Supervisor to Construction Supervisor, and further deprived him-according to Mr. manpower needed to do his job.

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Mr. Park complained to Mr. DiPiero, but Mr. DiPiero took no action. Mr. DiPiero told him he needed to improve his job performance and "get with the program." He had received poor evaluations from two supervisors in 1988, a reduced bonus in 1989, and no raise in 1990. Believing he might soon be fired, Mr. Park then acquiesced in his wife's desire to move to her hometown in West Virginia. Mr. Park and his wife then purchased a home and business there. On August 23, 1990, Mr. Park was instructed to drive two Georgia Gulf executives, Adolph Peterson (head of Georgia Gulfs Corporate Engineering Department) and defendant Mr. Baker (Division Manager), to the airport in Philadelphia. At the airport, Mr. Park asked Mr. Baker if he could speak without getting into trouble. Mr. Baker said, "You will not get into trouble." Mr. Park then related that the morale in the plant work force was extremely low and that the safety situation is " beyond belief." When Mr. Baker asked Mr. Park what the problem was, Mr. Park said, "Well, I'll probably get fired for telling you this...." Mr. Baker said, "No, you won't get fired." Mr. Park subsequently told of the difficulties he had been having with Mr. Fituossi, blaming Mr. Fituossi for the morale problems. On August 25, 1990, Mr. Park began a scheduled vacation. During Mr. Park's vacation, Mr. DiPiero spoke to Mr. Baker and informed him that all efforts to abate the disruption Mr. Park had been causing at the plant had failed. On September 4, 1990, Mr. DiPiero fired Mr. Park. Mr. Park avers that Mr. DiPiero told him he was fired for failing to attend a supervising seminar. On submissions to the Delaware Unemployment Commission, Georgia Gulf stated that Mr. Park had been discharged for incompetency. Sometime after the decision to fire Mr. Park had been made and implemented, probably in mid-September, Mr. Baker informed Mr. DiPiero about the conversation at the airport. DISCUSSION

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Not Reported in F.Supp. Not Reported in F.Supp., 1992 WL 714968 (D.Del.) (Cite as: Not Reported in F.Supp.) *3 Summary judgment is appropriate when the evidence offered demonstrates that there is no genuine issue of material fact in dispute and no jury could reasonably find by a preponderance of the evidence that the non-moving party is entitled to judgment in its favor. Anderson v. Liberty Lobby, 477 U.S. 242, 250-52 (1986). The moving party bears the burden of demonstrating a lack of a genuine issue of fact; accordingly, courts must read the record in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). If the nonmoving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). I. Breach of Oral Contract with Mr. Baker Plaintiff claims that he reached an oral agreement with Mr. Baker at the airport, in which Mr. Park agreed to supply information in return for a promise not to be fired for disclosing such information. Consequently, Mr. Park claims his dismissal approximately two weeks later breached that oral agreement. In the alternative, plaintiff argues his dismissal was improper under the doctrine of promissory estoppel. Defendants respond that 1) the parties did not make an oral contract; 2) even if they did, it was too indefinite to be enforced; and 3) because Mr. DiPiero had .already decided to fire Mr. Park at the time he received word from Mr. Baker concerning the conversation at the airport, Georgia Gulf did not breach the oral agreement, or break its promise to Mr. Park. A. Validity of the contract made at the airport In Delaware, as in other jurisdictions, the essential elements of a contract are offer, acceptance, and consideration. Additionally, the essential terms of a contract must be reasonably certain and definite. Gleason v. Ney, No. 78-C-MR-110 (Del.Ch.Ct. Aug. 25, 1991); In re Radiology Assoc., Inc. 1990 WL 67839, *1, 1990 Del.Ch. LEXIS 58, *2

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(Del.Ch.Ct. May 16, 1990); Hindes v. Wilmington Poetry Society, 138 A.2d 501, 503 (Del.Ch.Ct. 1958) ; see also Leeds v. First Allied Connecticut Corp., 521 A.2d 1095, 1097 (Del.Ch.Ct.1986). Finally, the intent of the parties as seen from an objective perspective determines whether a contract exists. Leeds, 521 A.2d at 1097; Norse Petroleum A/S v. LVO International, Inc., 389 A.2d 771, 775 (Del.Super.Ct.1978). Defendants, highlighting statements by Mr. Park that his goal in initiating the conversation with Mr. Baker was to "get away from Mr. Fituossi" rather than obtain a contract guaranteeing his job security, argue that Mr. Baker and Mr. Park never intended to form a contract. Yet, in the instant case, all of the elements of a contract are present. Mr. Park offered to speak freely in exchange for an assurance that he would not be fired for so doing. In reassuring Mr. Park that he would not be fired, Mr. Baker accepted the offer on behalf of Georgia Gulf. Because an objective observer could reasonably conclude that a contract had formed, Mr. Park's after the fact statements concerning his (subjective) intention at the time of the conversation are irrelevant. *4 Defendants additionally argue, however, that even if Mr. Baker accepted Mr. Park's offer, any contract formed thereby was too indefinite to be legally enforceable. In particular, they contend Mr. Baker's statement that plaintiff would not get into trouble and Mr. Park's response that Mr. Fituossi was responsible for low morale at the plant are not definite and material terms. Those statements might indeed have been vague, but the consideration exchanged between the parties was not. A reasonable observer could find that if anything was clear, it was that the parties agreed that Mr. Park would not be fired for providing information, no matter how vague such information might have been. B. Breach Though the plaintiff may be able to show that a contract existed, he is not automatically entitled to recovery. He must also show that the contract was

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Not Reported in F.Supp. Not Reported in F.Supp., 1992 WL 714968 (D.Del.) (Cite as: Not Reported in F.Supp.) in fact breached. Correspondingly, the plaintiff argues that Georgia Gulf fired him as a result of the remarks he made to Mr. Baker at the airport. The defendant responds that because Mr. DiPiero had been determined to fire Mr. Park before he had heard of the incident at the airport, whatever contract was made at the airport was not implicated in Mr. Park's discharge. The plaintiff cannot show that he was fired as a result of his conversation with Mr. Baker. First, there is no direct proof of a causal connection between the decision to fire Mr. Park and the conversation at the airport. Mr. Baker and Mr. DiPiero each denied under oath that they discussed the conversation at the airport prior to Mr. Park's dismissal. For example, Mr. DiPiero testified as follows: The Court: During the period from August 23, 1990 to September 4, 1990 ... the time of the termination of Mr. Park ... did you speak with Mr. Baker about Mr. Park? Mr. DiPiero: Yes, I did. The Court: What was said? Mr. DiPiero: I told Mr. Baker that I made a decision, based upon information from Mr. Fituossi and Mr. Pearce, that during the course of his remedial program that we found out that he was just not going to work out, he was becoming disruptive. A number of people came to me during the week he was on vacation and told me about his disruptive nature. I told Mr. Baker that we had planned to try to work it out with him, but it just wasn't going to work out. We needed to terminate him immediately, because of his disruptive nature. The Court: Up to the time that you made that decision, had Mr. Baker talked to you about the conversation he had with Mr. Park at the Airport? Mr. DiPiero: No, he didn't. Excerpted Transcript of Oral Argument, D.I. 81, at 3; see also Deposition of William Baker, D.I. 64, at A-437-38. Additionally, there are no memoranda recording a conversation between Mr. Baker and Mr. DiPiero on the subject of the conversation at the airport; nor have Mr. Baker or Mr. DiPiero admitted to others that Mr. Baker told Mr. DiPiero of the conversation at the airport any time before Mr. Park's dismissal.

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*5 Mr. Park relies instead on indirect proof of the aforementioned causal link. He notes: (1) Mr. Baker and Mr. DiPiero had spoken on the telephone after the conversation at the airport but before Mr. Park was fired; and (2) that Mr. Ronald Pearce told Mr. Park that on the Thursday preceding the Tuesday he was fired Mr. DiPiero had a lengthy conversation with Mr. Baker after which he came out of his office yelling, "Where is Harold? I want him out of the plant. I want him up here right now. I want him out of the plant today." Deposition of Harold Park, D.I. 73, at A-139-40. As shown above, Mr. Baker and Mr. DiPiero admit the former allegation. The second allegation is not supported by any facts; nor are there facts from which a jury might reasonably infer the truth of the allegation. Mr. Pearce denies ever having told Mr. Park about an incident win which Mr. DiPiero stormed out of his office screaming about Mr. Park. See Deposition of Ronald P. Pearce, D.I. 87, at 34-35. Additionally, Mr. Pearce denies the incident ever happened. Mr. Pearce testified in his deposition that he did not learn of the conversation between Mr. DiPiero and Mr. Baker until after Mr. Park had been fired, and that he learned of the conversation through second-hand sources: Q: Now, are you aware that Mr. Park talked to Mr. Baker at the Philadelphia Airport sometime prior to his discharge? A: I know that Mr. Park talked with Mr. Baker, but when, I couldn't be sure. Because that would be second, thirdhand knowledge. Mr. Park never told me that he spokeQ: So Mr. Park never told you that he had spoken with Mr. Baker? A: No. Q: Did someone else tell you that Mr. Park had spoken with Mr. Baker? A: Yes, I had heard that Mr. Park and Mr. Baker had had a conversation. Q: Do you recall when you first heard that? A: Not really. Q: Do you recall from whom you heard that? A: I heard it several times, okay. And, you know, it was like from, you know, several different individuals. So, I don't recall who I heard it from first.

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Not Reported in F.Supp. Not Reported in F.Supp., 1992 WL 714968 (D.Del.) (Cite as: Not Reported in F.Supp.) Q: Do you recall if the first time you heard that was before or after Mr. Park was discharged? A: Oh, it was after. Id. at 22-23. Even if Mr. Pearce had told Mr. Park of such an incident, and even if the incident had occurred, there would remain no proof that Mr. Baker told Mr. DiPiero about the conversation at the airport; one would have to infer such a conclusion. In this case, therefore, because there is not a sufficient factual basis from which a jury could reasonably draw the inference, the inference cannot be drawn. The fact that Mr. Baker and Mr. DiPiero spoke after the conversation at the airport but before Mr. Park's termination is not a sufficient factual basis to support an inference that those two events were causally connected. Indeed, the evidence points squarely to a different conclusion, supported by a firm foundation in fact; namely, that the conversation at the airport did not have any impact on the termination of Mr. Park. *6 Additionally, Mr. Park's statements concerning Mr. Pearce's observations are not admissible. Mr. Park does not claim to be an eyewitness of the events described above; rather, he claims that Ron Pearce, an employee relations associate at the time of the events in question, related them to him sometime after his dismissal. Deposition of Harold Park, D.I. 73, at 139. Hearsay evidence is not admissible on a motion for summary judgment. Mauser v. Fox Theaters Management Corp., 845 F.2d 1225, 1230 (3d Cir.1988). As such, Mr. Park's testimony as to what Ron Pearce may have observed is hearsay and does not deserve weight in rebutting the defendants' case for summary judgment. No reasonable jury could conclude that a breach of contract had occurred. As a consequence, as there is no evidence any promise was broken, the plaintiffs claims of promissory estoppel also must fail. II. Employment Contract

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Plaintiff asserts that his dismissal violated not only the oral contract made at the airport, but also his employment contract. While the defendants claim Mr. Park's employment was at-will and could be terminated for any reason, Mr. Park responds that various contractual provisions and actions taken by Georgia Gulf modified the employment relationship, allowing Georgia Gulf to dismiss him only for cause. In Delaware, absent an explicit agreement for a specific duration, employment is considered at-will. Merrill v. Crothall-American, Inc., 1990 WL 251400, 1990 Del.Super. LEXIS 457 (Del.Super.Ct. Dec 12, 1990) modified 606 A.2d 96 (Del. 1992) (affirming Superior Court's judgment as to status of employment contract); Mann v. Cargill Poultry, Inc., 1990 WL 91102, *4, 1990 Del.Super. LEXIS 225, *10 (Del.Super.Ct. June 13, 1990). An employer and employee may modify an at-will employment relationship by subsequent contractual restriction on the right of discharge. Haney v. Laub, 312 A.2d 330, 332 (Del.Super.Ct.1973). Such modification may occur through a course of conduct giving rise to an implied agreement. Mann, 1990 WL 91102, at *4, 1990 Del.Super. LEXIS 225, at *10 (Del.Super. June 13, 1990). Any modification requires, however, clear and explicit language or clearly affirmative conduct on the part of the employer. Id.; Emory v. Nanticoke Homes, Inc., No. 82C-MR-14, Ridgely, J. (Del.Super.Ct. July 19, 1985); Avallone v. Wilmington Medical Center, Inc., 553 F.Supp. 931 (D.Del.1982); see also Heideck v. Kent General Hasp., Inc., 446 A.2d 1095 (Del.Super. 1982). A. Invention and Confidential Information Agreement Mr. Park offers several pieces of evidence to support his argument that his at-will status had been modified. Mr. Park principally relies, however, on language in the Employee Confidential Information and Invention Agreement." The agreement contained, inter alia, the following term: WHEREAS, the Employee desires to be employed by the Corporation, or, if now employed, that such employment shall continue, NOW THEREFORE,

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Not Reported in F.Supp. Not Reported in F.Supp., 1992 WL 714968 (D.Del.) (Cite as: Not Reported in F.Supp.) in consideration of such employment, the Corporation and the Employee agree as follows.... *7 Accordingly, Mr. Park contends that in return for Mr. Park's promise to keep certain information confidential, Georgia Gulf agreed that his employment would continue, thereby modifying the at-will relationship. In support of this argument, Mr. Park cites Haney, supra, in which the Delaware Superior Court determined that an employer modified an at-will employment relationship by promulgating a stock-option agreement which provided that the agreement would terminate upon the death of the employee, or the employee's termination for cause. Mr. Park's argument is without merit. The agreement contains no clear indications that Mr. Park's at-will status had been modified; Mr. Park did receive the consideration of continued employment-however, such employment was to continue at-will. Haney is not authority to the contrary. The stock-option plan in Haney, unlike the Confidential Information and Invention Agreement, contained specific provisions discussing termination for cause. In a similar fashion, courts interpreting Delaware law have held that the promulgation of and agreement to non-compete covenants does not modify at-will status. See Research & Trading Corp. v. Powell, 468 A.2d 1301, 1305 (Del.Ch.Ct.1983), Hammermill Paper Co. v. Palese, No. 83-7128, (Del.Ch.Ct. June 14, 1983). B. Course of Conduct Mr. Park next supports his modification claim with evidence that Georgia Gulf had engaged in a course of conduct modifying the employment relationship; specifically, that Georgia Gulf terminated employees only for cause per the provisions of the Operating Policy Manual. Mr. Park also refers to the following testimony of Mr. DiPiero: A. All employees, to my understanding, are at-will employees. Q. At the PVC plant? A. At Georgia Gulf.

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Q. Okay. Which includes the PVC plant? A. Which is included in that, that's certainly true, yes. Q. And is it the policy of Georgia Gulf that such employees can be discharged for any reason; a good reason, a bad reason, or no reason? A. I'm really not familiar with the at-will clause. I know at will. Q. What does at will mean? A. At will to me? Q. Yes. A. That's my impression of what at will is. It means that for cause someone can be discharged. Q. I see. And do you know what Georgia Gulfs policy is? A. I'm sorry, I don't understand the question. Q. Do you know what Georgia Gulfs policy is regarding at-will employees? A. I'm not really familiar with the policy. My understanding of at will is just what I've said before, that there is an agreement that and people have an understanding that they are at-will employees. D.I. 73, atA-61a-b. This claim also fails to pass muster under Delaware law. Although the Operating Policy Manual contained provisions describing termination for cause, the Manual clearly provided elsewhere that the employment relationship was to remain at-will. The Manual provides: *8 [I]t is the policy of Georgia Gulf that the employment and compensation of any employee can be terminated with or without cause, at any time, at the option of the employee or at the option of the company. In light of Delaware's requirement that any modification of the at-will relationship must be clear and explicit, the Court finds that as a matter of law Georgia Gulfs actions in dismissing other employees for cause (pursuant to the Manual) do not rise to the level of a contractual modification. See Heideck, supra (unilateral expression of policy in employee handbook does not modify at-will employment status). Moreover, Mr. DiPiero's views as to the meaning of "at-will" are irrelevant. The term has a legal, objectively determinable meaning which no reasonable juror could find to

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Not Reported in F.Supp. Not Reported in F.Supp., 1992 WL 714968 (D.Del.) (Cite as: Not Reported in F.Supp.) have been modified by Georgia Gulfs conduct, especially in light of the Manual provision specifying that any employee could be terminated without cause. C. Airport conversation Finally, Mr. Park asserts that the conversation at the airport, if not a contract concerning an exchange of information in return for freedom from retaliation for providing that information, was instead an agreement to modify the at-will status of Mr. Park. The Court finds that, as the conversation makes no express or implied reference to the term of Mr. Park's employment, this claim must also fail. The conversation and agreement at the airport modified Mr. Park's at-will status only to the extent Georgia Gulf could not discharge Mr. Park in retaliation for any comments made during the conversation. Because Mr. Park was an "at-will" employee and could be terminated without cause, the Court need not address whether Georgia Gulf breached its employment contract with Mr. Park by terminating him without cause. III. Breach of Implied Covenant of Good Faith and Fair Dealing Mr. Park alleges two breaches of the implied covenant of good faith and fair dealing. First, he claims that Georgia Gulf breached the implied covenant of good faith and fair dealing by firing him for bringing to Georgia Gulfs attention the violation of OSHA regulations that would have ensued from the installation of an unshielded motor. He apparently asserts not that Georgia Gulf fired him directly for informing Georgia Gulf of possible safety violations; rather, he complains that by informing Georgia Gulf of the safety problems he facilitated Mr. Fituossi's vendetta against him, which in turn was the direct cause of his termination. Second, he claims that Georgia Gulf breached the covenant by inducing him to provide information on plant morale and subsequently firing him.

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Delaware recognizes that every employment contract includes an implied covenant of good faith and fair dealing. Merrill, 606 A.2d at 101; Manchester v. Narragansett Capital, Inc., 1989 WL 125190, *8, 1989 Del Ch. LEXIS 141, *26; Katz v. Oak Industries Inc., 508 A.2d 873 (Del.Ch.Ct.1986) . Bad faith or malice in termination of the employment relation may constitute a breach of the implied covenant. Narragansett, 1989 WL 125190 at *9, 1989 Del.Ch. LEXIS at *29 (no breach of implied covenant where employee fired in order for others to increase control over assets and activities of corporations and divert proceeds of employee's salary); Fortune v. National Cash Register Co., 364 N.E.2d 1251 (Mass. 1977) (discharge of salesman to avoid paying bonus breaches implied covenant); Monge v. Beebe Rubber Co., 316 A.2d 549 (N.H.I974) (termination for refusal to date foreman breaches implied covenant). *9 The Court cannot accept plaintiffs first theory, which would allow him to bootstrap the indirect cause of his discharge-*', e., the reporting of a potential safety problem and refusal to install an unsafe motor-to the putative direct cause of his discharge-*', e., Mr. Fituossi's vendetta-for the purposes of alleging a discharge in bad faith and violation of public policy. The discharge of an employee pursuant to the complaints of a coworker does not constitute bad faith. To the extent plaintiff does complain FN1 he was directly discharged for reporting the potential safety violation and refusing to install the unsafe motor, plaintiff again fails to state a claim. Plaintiff proffers no evidence that he was fired for that reason. Moreover, no jury could rationally infer Mr. Park was fired because of his complaint from circumstantial evidence. Mr. Park's discharge occurred two years after his complaints concerning the unsafe motor. Mr. Park's second theory, which asserts a breach of the covenant of fair dealing pursuant to Georgia Gulfs failure to honor its promise not to fire Mr. Park for speaking frankly with Georgia Gulf executives, essentially restates the breach of contract and promissory estoppel claims addressed in Part I, supra. This claim is redundant and

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Not Reported in F.Supp. Not Reported in F.Supp., 1992 WL 714968 (D.Del.) (Cite as: Not Reported in F.Supp.) necessitates no further discussion. IV. Mr. Fituossi's Intentional Infliction of Emotional Distress Mr. Park alleges that Mr. Fituossi, in conducting his vendetta against Mr. Park, intentionally inflicted emotional distress upon him. Delaware indeed recognizes the tort of intentional infliction of emotional distress. See, e.g., Mattern v. Hudson, 532 A.2d 85 (Del.Super.Ct. 1987) (citing the Restatement (2d) of Torts § 46(1) (1965). To recover damages for intentional infliction of emotional distress, however, the plaintiff must show some physical injury. See Rizzo v. E.I. duPont de Nemours & Co., No. 86C-JL-88, slip op. at 7-8 (Del.Super.1989); Merganthaler v. Asbestos Corp., 480 A.2d 647, 651 (Del.Super.Ct.1984). Mr. Park has failed to establish that Mr. Fituossi caused any of his physical ailments (these include a nine-year-old high blood pressure condition, headaches probably caused by arthritis, and shoulder pain). The Court need not determine, therefore, whether a jury could find that Mr. Fituossi's behavior was sufficiently outrageous to allow recovery under this cause of action. V. Tortious Interference with Contract (Mr. Fituossi) Mr. Park contends that Mr. Fituossi tortiously interfered with Mr. Park's employment contract with Georgia Gulf. Delaware recognizes a cause of action for tortious interference with contractual relations. Bobson v. Gulfstream Marketing, Ltd., No. 89C-NO11, slip op. at 6-7 (Del.Super.Ct. Mar. 27, 1992) (citing Irwin & Leighton v. W.M. Anderson Co., 532 A.2d 983 (Del.Ch.Ct.1987)). Where the contract ostensibly interfered with is an at-will employment contract, however, the cause of action for tortious interference with contract does not lie. Rizzo, slip op. at 3-5. As determined above, Mr. Park was an at-will employee. Consequently, defendants are entitled to summary judgment as to this claim. VI. Negligent Hiring of Mr. Fituossi

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*10 Mr. Park claims that Georgia Gulf negligently failed to adequately investigate Mr. Fituossi's background and negligently retained Mr. Fituossi in the position of Maintenance Supervisor. Under Delaware law, a plaintiff can seek a remedy for negligent hiring and retention where the employer knew or had reason to know or in the exercise of reasonable care should have known that an employee has an undue tendency to cause harm. A.R. Anthony & Sons v. All-State Investigation Security Agency, No. 82C-AP-18, slip op. at 3-4 (Del.Super.Ct. Sept. 27, 1983). This tort usually involves serious harm. See, e.g., Hitchens v. Cannon & Cannon, Inc., 1988 WL 130414, N1988 Del.Super., LEXIS 433 (Del.Super.Ct. Nov. 21, 1988) (no negligent hire where crane operator causes severe physical injury to plaintiff); Draper v. Olivere Paving & Construction Co., 181 A.2d 565 (Del. 1962) (no negligent hire where employee slashed plaintiffs face); A.R. Anthony & Sons, supra (issue of fact as to whether employer negligently hired arsonist); Knerr v. Gilpin, 1988 WL 40009, 1988 Del.Super. LEXIS 138 (Del.Super.Ct. Apr. 8, 1988) (issue of fact whether employer negligently hired employee who assaulted plaintiff). Nothing in Mr. Fituossi's employment history indicates he might have caused serious harm as the employee of Georgia Gulf. Consequently, as a matter of law, Georgia Gulf did not negligently hire Mr. Fituossi. The plaintiff has failed to apprise the Court of any authority in support of a cause of action for negligent retention of an employee. This Court leaves to Delaware courts responsibility for determining whether such a cause of action exists. Assuming it does exist, however, the Court assumes its characteristics would resemble those of the cause of action for negligent hiring. Accordingly, the Court finds Georgia Gulf did not negligently retain Mr. Fituossi as an employee. There is no evidence that Mr. Fituossi caused any serious harm (as noted above, Mr. Park did not suffer any physical harm), or that Georgia Gulf knew or should have known that Mr. Fituossi was causing serious-or any-harm.

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Not Reported in F.Supp. Not Reported in F.Supp., 1992 WL 714968 (D.Del.) (Cite as: Not Reported in F.Supp.) VII. Defamation Mr. Park states two causes of action for defamation: one against Mr. Fituossi, the other against Georgia Gulf. A. Mr. Fituossi'statements First, Mr. Park asserts that various comments made by Mr. Fituossi defamed him. Specifically, Mr. Fituossi told Mr. Park's coworkers that Mr. Park " wasn't very intelligent, wasn't very bright, didn't know what he was doing, that he is incompetent; that Mr. Park 'didn't know the job' and 'didn't know nothing.' " (Plaintiffs Brief, D.I. 71, at 36). Mr. Fituossi also told Mr. DiPiero that "Park has a very low intellect, extraordinarily low. Very poor comprehension skills. He is unable to listen. He cannot write well, he cannot read, he cannot follow instructions." Id. at 37. Defendants contend that the alleged statements were privileged and/or opinions. In Delaware, four categories of libel are actionable per se, without any proof of special damages; those categories include statements which: 1) malign one in one's trade, business, or profession; 2) impute a crime; 3) imply that one has a loathsome disease; or 4) impute unchastity to a woman. Battista v. Chrysler Corp., 454 A.2d 286, 290 (Del.Super.Ct.1982); Spence v. Funk, 396 A.2d 967 (Del. 1978). In this case, the allegedly defamatory statements fall into the first category. *11 A conditional or qualified privilege can extend to statements actionable per se if made between persons sharing a common interest for the protection of which those statements were made. Battista, 454 A.2d at 291; Pierce v. Burns, 185 A.2d 477 (Del. 1982); Restatement (2d) of Torts § 593 (1965). This privilege reaches coemployees when the statements relate to the plaintiffs ability to perform his job. See Battista, 454 A.2d at 291 (employer-employee relationship covered by privilege where defamatory remarks relate to job performance); Pierce, supra; Burr v. Atlantic Aviation Corp., 348 A.2d 179 (Del.1975). Because all of the allegedly defamatory statements

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relate to Mr. Park's ability to perform his job, all of the allegedly defamatory statements fall within the privilege. The privilege is subject to forfeit, however, if it is abused 1) by excessive or improper publication; 2) by the use of the occasion for a purpose not embraced within the privilege; or 3) by making a statement which the speaker knows to be false. Battista, 454 A.2d at 291; Pierce, supra. The privilege must be exercised in good faith and without malice. Battista, 454 A.2d at 291; Short v. News-Journal Co., 205 A.2d 6, 8 (Del.Super.Ct.1965). Consequently, a finding that the privilege applies negates the presumption of malice and shifts to the plaintiff the burden of showing actual malice; absent a finding of express malice, the privilege remains applicable to defeat the action. Battista, 454 A.2d at 291. The question whether the privilege has been abused through actual malice is ordinarily one of fact. Id. Mr. Park argues that Mr. Fituossi forfeits the privilege under any of the three foregoing rationales. First, he argues that Mr. Fituossi's constant repetition of the allegedly defamatory statements amounts to excessive publication. The Court rejects this argument. In Battista, the Delaware Superior Court held that no excessive or improper publication occurred where the defendant confined his comments to the attention of the defendant's employees. In this case, all of the allegedly defamatory statements were communicated to coworkers; hence, Mr. Fituossi's comments were not excessive or improper. Second, Mr. Park argues that because Mr. Fituossi's comments were designed to serve a personal vendetta and not to advance Georgia Gulfs business, the statements were used for a purpose falling outside the scope of the privilege. This argument also fails. Mr. Park admits that the vendetta was caused by an incident at work. All of the comments were made in work place and related to Mr. Park's ability to work effectively. Consequently, even if Mr. Fituossi's vendetta had taken on personal overtones, no reasonable juror could find that Mr. Fituossi's purposes in making the allegedly defamatory remarks were not

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Not Reported in F.Supp. Not Reported in F.Supp., 1992 WL 714968 (D.Del.) (Cite as: Not Reported in F.Supp.) sufficiently related to the working environment to fall within the privilege. Finally, Mr. Park argues that Mr. Fituossi knew he made false statements. As in Battista, however, Mr. Park has not alleged any facts that indicate Mr. Fituossi knew he was making false statements. Essentially, Mr. Park cannot show that these statements are false because they are not statements that are independently verifiable; the statements are, as the Court makes clear below, opinions. *12 Statements of opinion, as opposed to fact, are protected by the First Amendment and are not actionable as defamatory. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). The distinction between fact and opinion is a question of law. Riley v. Moyed, 529 A.2d 248, 251 (Del. 1987). In order to determine whether a statement is fact or opinion, courts must examine the statements from the perspective of the ordinary reader or listener. See id. Delaware has adopted a four-part test, first expounded in Oilman v. Evans, 750 F.2d 970, 979-85 (D.C.Cir.1984) (en bane ), to facilitate the aforementioned objective test: First, the Court should analyze the common usage or meaning of the challenged language. Second, the Court should determine whether the statement can be objectively verified as true or false. Third, the Court should consider the full context of the statement. Finally, the Court should consider the broader social context into which the statement fits. Id. at 251-52 (citations omitted). Applying the four-part test, the Court finds that the allegedly defamatory statements are opinions. As noted above, few, if any, of the statements are objectively verifiable. The statements that may be objectively verifiable, such as those concerning Mr. Park's intelligence and ability to read and write, taken in context, were part of, and amounted to, a broad assertion that Mr. Park was generally incompetent. Statements regarding one's competence are not ordinarily considered factual, are only subjectively verifiable in most cases, and taken in their full and social contexts, are opinions. Cf. Slawik v. News-Journal Co., 428 A.2d 15 (Del. 1981) (publisher's statement that a former

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county officer had abused his office is opinion). B. Georgia Gulfs statements In Mr. Park's second defamation complaint, he alleges that Georgia Gulf defamed him by certifying to the Unemployment Commission that Mr. Park had been discharged for incompetence. This claim also lacks merit. Any report submitted at the request of an agency, court or official is privileged. See Segars v. Alexander, No. 85C-My-138 (Del.Super.Ct. Apr. 2, 1986) affd 516 A.2d 483 (Del. 1986). Employer communications to state unemployment commissions fall within this privilege. See Russell v. Keyes Fibre Co., Ill F.Supp. 951 (N.D.Ind.1991) (employer's statement to unemployment agency conditionally privileged); Adler v. American Standard Corp., 538 F.Supp. 572 (D.Md.1982); Sugarman v. RCA Corp., 639 F.Supp. 780 (M.D.Pa.1985). Correspondingly, Georgia Gulfs statement to the Unemployment Commission was plainly privileged. VIII. ERISA Claims Plaintiff claims Georgia Gulf denied him of benefits he was entitled to under the Salaried Employee Retirement Plan (SERF) and the Savings and Capital Growth Plan (401(k) plan). These claims are governed by the Employee Retirement Security Income Act (ERISA). 29 U.S.C. §§ 1001-1381 (1988). In order to state a claim under ERISA, the plaintiff must exhaust his administrative remedies. Wolf v. National Shopmen Pension Fund, 728 F.2d 182, 185 (3d Cir.1984). The plaintiff need not exhaust his administrative remedies, however, if such remedies would be futile or if the plaintiff has been denied meaningful access to administrative procedures. Vogel v. Independence Federal Savings Bank, 728 F.Supp. 1210, 1223 (D.Md.1990). Lieske v. Morlock, 570 F.Supp. 1426, 1429 (N.D.I11.1983). *13 The plaintiff complains that neither Georgia Gulf nor any plan administrator apprised Mr. Park of his rights under either plan, and that Georgia Gulf failed to comply with requests for plan

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Not Reported in F.Supp. Not Reported in F.Supp., 1992 WL 714968 (D.Del.) (Cite as: Not Reported in F.Supp.) documents for the retirement plans. Even if true, these facts are not sufficient to allow the Court to excuse Mr. Park from the exhaustion requirement. First, it is not clear that any party to this suit has failed to uphold its duties under ERISA. Second, such facts do not indicate that exhaustion of administrative remedies has been meaning fully denied or would be futile. IX. Negligent Discharge Plaintiff claims that Delaware law allows an action for negligent discharge of at-will employees. Plaintiff relies on language from Merrill: Nothing [in this opinion] is to be construed as limiting an employer's freedom to terminate an at-will employment contract for its own legitimate business, or even highly subjective, reasons. Such a contract is still terminable for any reason not motivated by bad faith. Merrill, 606 A.2d at 103. Consequently, Mr. Park argues that even at-will employees must be terminated for some reason-even if highly subjective-and may not be terminated for reasons of bad faith. As this Court reads the above language and Delaware law, at-will employees may be discharged for any reason-or lack of reason-so long as the discharge does not violate public policy. In other words, terminations motivated by bad-faith include only those breaches that also violate the covenant of good-faith and fair dealing. Any other reading would essentially force employers to recognize in every employment contract an implied contractual pledge to provide cause for every discharge, thus obscuring, if not mutilating, the concept of at-will employment. Consequently, because the Court has held that Mr. Park's claim for breach of the covenant of good-faith and fair dealing lacks merit, this claim also must fail. X. Vacation Pay Mr. Park claims Georgia Gulf breached its employment contract with him by compensating ) 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

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him for eleven rather than 29 days of accrued vacation time. This claim depends upon the terms of the Georgia Gulf Operating Policy Manual. According to the Manual, Mr. Park was entitled (as an employee with more than 10 but less than eighteen years of service) to two days of vacation for every month worked in the calendar year, up to a maximum of twenty. D.I. 64 at A-333. Such vacation time became "earned" on December 31 of each calendar year. Id. Only regular, full-time employees were entitled to receive vacation time. Id. Furthermore, the Manual provided that any vacation time accrued must be taken during the calendar year to which the vacation time applied; otherwise the employee forfeited that time. D.I. 64, atA-332. At the time of Mr. Park's termination in August 1990, he had accrued sixteen days vacation for that calendar year. Since he was terminated before December 31, 1990, Mr. Park did not "earn" any vacation time for 1990. Consequently, Mr. Park's employment contract entitled him to compensation for vacation time remaining from the previous year, 1989. Mr. Park had 11 days of uncompensated vacation time remaining from 1989. D.I. 64 at A-465. Because Mr. Park received compensation for these 11 days, he is not entitled to further vacation time. FN1. It is not clear from plaintiffs brief whether plaintiff wishes to pursue this line of reasoning. D.Del.,1992. Park v. Georgia Gulf Corp. Not Reported in F.Supp., 1992 WL 714968 (D.Del.) Briefs and Other Related Documents (Back to top) · 1:91CV00569 (Docket) (Oct. 15, 1991) END OF DOCUMENT

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\\festlavv.
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resident during a Ken-Crest social function. Briefs and Other Related Documents Only the Westlaw citation is currently available. United States District Court,E.D. Pennsylvania. Beatrice ROSARIO Plaintiff, v. KEN-CREST SERVICES Defendant No. 04-CV-4737. June 6, 2005. John J. Robinson, Robinson Pall and Pall, Upper Darby, PA, for Plaintiff. Christine D. Steere, Salmon Ricchezza Singer & Turchi LLP, Philadelphia, PA, for Defendant. MEMORANDUM AND ORDER JOYNER, J. *1 This employment discrimination case is now before the Court for resolution of the Defendant's Motion for Summary Judgment. For the reasons which follow, the Motion is Granted. Factual Background By this lawsuit, Plaintiff Beatrice Rosario alleges that she was terminated from her position as a Community Home Supervisor with Ken-Crest Services because of her race (black) and national origin (Liberian). Up until Plaintiff was terminated on September 15, 2003, she had been employed with Ken-Crest for approximately eleven and one-half years and had been promoted from Direct Caregiver to Community Home Supervisor. For its part, Defendant disputes that Plaintiff was terminated because of her race and/or national origin, arguing instead that she was terminated because she abused a resident. Defendant asserts that Plaintiff was terminated after an internal investigation confirmed that Plaintiff struck a Standards Governing Summary Judgment Motions In deciding a motion for summary judgment under Fed.R.Civ.P. 56(c), a court must determine " whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law." Medical Protective Co. v. Watkins, 198 F.3d 100, 103 (3d Cir.1999) (internal citation omitted). Indeed, Rule 56(c) provides that summary judgment is properly rendered: [I]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. Stated more succiently, summary judgment is appropriate only when it is demonstrated that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-32, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In deciding a motion for summary judgment, all facts must be viewed and all reasonable inferences must be drawn in favor of the non-moving party. Troy Chemical Corp. v. Teamsters Union Local No. 408, 37 F.3d 123, 125-26 (3d Cir.1994); Oritani Savings & Loan Assn. v. Fidelity & Deposit Co. of Md., 989 F.2d 635, 638 (3d Cir.1993). An issue of material fact is said to be genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

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Slip Copy Slip Copy, 2005 WL 1377843 (E.DJPa.) (Cite as: Slip Copy) In Celotex Corp. v. Catrett, supra, the Supreme Court articulated the allocation of burdens between a moving and nonmoving party in a motion for summary judgment. Specifically, the Court in that case held that the movant had the initial burden of showing the court the absence of a genuine issue of material fact, but that this did not require the movant to support the motion with affidavits or other materials that negated the opponent's claim. Celotex, 477 U.S. at 323. The Court also held that Rule 56(e) requires the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial." ' Id. at 324 (quoting Fed.R.Civ.P. 56(e)). This does not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Obviously, Rule 56 does not require the nonmoving party to depose its own witnesses. Rather, Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves, and it is from this list that one would normally expect the nonmoving party to make the required showing that a genuine issue of material fact exists. Id. See also Morgan v. Havir Mfg. Co., 887 F.Supp. 759 (E.D.Pa.1994); McGrath v. City of Phila., 864 F.Supp. 466, 472-73 (E.D.Pa.1994). Discussion A. The McDonnell Douglas Framework *2 Discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981(a), are analyzed under the framework set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this burden-shifting framework, a plaintiff must first establish a prima facie case of discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Once a prima facie case is

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established, the burden shifts to the defendant to produce a legitimate non-discriminatory reason for the plaintiffs discharge. Reeves, 530 U.S. at 143. Once a legitimate non-discriminatory reason is offered, the plaintiff must produce sufficient evidence for a reasonable fact-finder to conclude by a preponderance of the evidence that the non-discriminatory reason offered by the employer was merely a "pretext" for unlawful discrimination. Id. Absent direct evidence of discrimination, a plaintiff alleging" wrongful termination based on race or national origin discrimination under Title VII and 42 U.S.C. § 1981 TM} must establish that: (1) she is a member of a protected class, (2) she is qualified for the position in question, (3) she suffered an adverse employment action, and (4) either non-members of the protected class were treated more favorably than the plaintiff, or the circumstances of the plaintiffs termination give rise to an inference of racial discrimination. McDonnell Douglas, 411 U.S. at 802; Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 318-19 (3d Cir.2000); Pivirotto v. Innovative Sys., Inc., 191 F.3d344, 356 (3d Cir. 1999). FN1. The McDonnell Douglas standard is used to analyze employment discrimination claims under both Title VII and 42 U.S.C. § 1981. Pamintuan v. Nanticoke Memorial Hasp., 192 F.3d 378, 385 (3d Cir. 1999); Stewart v. Rutgers, The State Univ., 120 F.3d 426, 432 (3d Cir. 1997). Accordingly, the proof required for a plaintiff to previal under 42 U.S.C. § 1981 is identical to that required in a Title VII case. See Harris v. SmithKline Beechman, 27 F.Supp.2d 569, 576 (E.D.Pa.1998) (applying the same analysis to race discrimination claims under Title VII and 42 U .S.C. § 1981); Lewis v. Univ. of Pitt., 725 F.2d 910, 915 n. 5 (3d Cir. 1983) (explaining that a 42 U.S.C. § 1981 claim "requires the same elements of proof as a Title VII action"). B. Plaintiff Has Failed to Establish a Prima Facie

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Slip Copy Slip Copy, 2005 WL 1377843 (E.D.Pa.) (Cite as: Slip Copy) Case Plaintiff in this action fails to establish a prima facie case of discrimination. Although Plaintiff has shown that, as an African-American Liberian, she is a member of a protected class; that she is presumptively qualified for the position in question, given that she had held it for nearly twelve years; and that she suffered an adverse employment action by having been terminated; Plaintiff does not satisfy the fourth prong of the McDonnell Douglas standard. Specifically, she fails to demonstrate that either non-members of the protected class were treated more favorably, or that the circumstances of her termination raise an inference of discrimination. The events leading to Plaintiffs discharge began when Answad Hopewell, a black Case Manager, levied a complaint against Plaintiff for abusing a Ken-Crest resident. (Rosario Depo. p. 71-72). In response to the allegation, Pauline Baker, a black Ken-Crest employee, conducted an investigation. Id. at 78. After Sandra Brown, a black Community Home Supervisor, confirmed the abuse allegation, Plaintiff was discharged. Id. at 53, 111. Following her termination, Plaintiff appealed but her termination was upheld by Harry Peck, a black Director of Residential Services. Id. at 147-48. Accordingly, Plaintiffs own recollection of the events leading to her termination is not sufficient to raise an inference of discrimination. *3 Plaintiff attempts to substantiate her discrimination claim by alleging that she was " harassed" by two coworkers, both black females, who aked Plaintiff about her financial status. Id. at 114-15. However, Plaintiff provides no evidence to support her belief that her coworkers asked these questions due to her race and/or national origin. Id. at 119. Furthermore, Plaintiff failed to allege either coworker's "harassment" in the EEOC Charge of Discrimination, and thus any claims arising out of those actions are waived. Similarly, Plaintiff alleges that a coworker told her that Answad Hopewell, an African-American case manager, referred to another case manager as "the guy down there who employes all the Africans." Id. at 106. However, Plaintiff incorrectly relies

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exclusively on this hearsay evidence as proof that Hopewell was "personally biased" against her. Id. Furthermore, even if this Court viewed Hopewell's comment as displaying bias against Africans, hearsay evidence cannot be considered to defeat a summary judgment motion. See Blackburn v. United Parcel Serv., 179 F.3d 81, 95 (3d Cir.1999) (explaining that hearsay evidence usually should not be considered on a summary judgment motion). Plaintiff likewise fails to show that non-members of the protected class were treated more favorably. Although Plaintiff alleges that on two occasions during the course of her employment she was denied promotions, Plaintiff admits that she never applied for either position. Id. at 17, 23. Moreover, Ken-Crest hired a black female to fill the Program Director position that Plaintiff felt she deserved. Id. at 17. C. Plaintiff Has Failed to Offer Sufficient Evidence for a Reasonable Fact-Finder to Conclude that Defendant's Reason for Plaintiffs Discharge Was Pretextual Even if Plaintiffs evidence was sufficient to establish a prima facie case of discrimination, Defendant has articulated a legitimate non-discriminatory reason for Plaintiffs discharge. Defendant asserts that Plaintiffs termination resulted from abuse of a mentally disabled resident. (Ans., | 14). Hopewell's report of Plaintiffs abusive action was confimed by a Ken-Crest employee who witnessed the incident. (Brown Depo. p. 16). Moreover, an internal investigation confirmed Plaintiffs abusive action, and upper-level officials upheld Plaintiffs termination. (Rosario Depo. p. 78, 147-48). Because Ken-Crest articulates a legitimate reason for Plaintiffs termination, any presumption of discrimination from Plaintiffs prima facie case disappears. Accordingly, Plaintiff must "cast sufficient doubt upon the employer's proffered reasons to permit a reasonable fact-finder to conclude that the reasons are incredible." Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1072 (3d Cir.1996). Plaintiff in this action fails to present evidence to

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Slip Copy Slip Copy, 2005 WL 1377843 (E.D.Pa.) (Cite as: Slip Copy) refute Ken-Crest's legitimate reason for her termination. See Jalil v. Avdel Corp., 873 F.2d 701, 707 (3d Cir.1989) (finding that a defendant is entitled to summary judgment in a Title VII and 42 U.S.C. § 1981 action if the plaintiff cannot produce sufficient evidence of pretext to rebut the asserted nondiscriminatory reasons for the employment decision). As this Court found Plaintiff unable to establish a prima facie case, Plaintiff clearly lacks any ability to prove that she was wrongfully discharged as a result of racial discrimination. See Reeves, 530 U.S. at 133 (noting that employer would be entitled to summary judgment if the record conclusively revealed some other nondiscriminatory reason or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue). D. Conclusion *4 Plaintiff in this action fails to establish a prima facie case of discrimination based on her race and/or national origin. Even if Plaintiffs evidence was sufficient to establish a prima facie case, Plaintiff does not offer adequate evidence from which a reasonable fact-finder could conclude that Defendant's reason for Plaintiffs discharge was pretextual. Accordingly, this Court concludes that Defendant's Motion for Summary Judgment is properly granted on all Counts of Plainitiffs Complaint. An order follows. ORDER AND NOW, this 6th day of June, 2005, upon consideration of Defendant Ken-Crest Services's Motion for Summary Judgment (Document No. 7), and Plaintiffs response thereto (Document No. 9), it is hereby ORDERED that the Motion is GRANTED and Judgment as a matter of law is hereby entered in favor of the Defendant and against the Plaintiff in no amount. E.D.Pa.,2005. Rosario v. Ken-Crest Services 12005 Thomson/West. No Claim to Orig. U.S. Govt. Works. Slip Copy, 2005 WL 1377843 (E.D.Pa.)

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Briefs and Other Related Documents (Back to top) · 2:04cv04737 (Docket) (Oct. 08, 2004) · 2004 WL 2880166 (Trial Pleading) Complaint and Jury Demand (Jan. 01, 2004) END OF DOCUMENT

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Westiaw.
Not Reported in A.2d Not Reported in A.2d, 1996 WL 769344 (Del.Super.) (Cite as: Not Reported in A.2d) Pagel

Only the Westlaw citation is currently available. UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING. Superior Court of Delaware, Sussex County. Joseph T. SCREPESI, Plaintiff, v. DRAPER-KING COLE, INC. & Frankie L. Daniels, Defendants. Civil Action No. 95C-05-029. Submitted Sept. 30, 1996. Decided Dec. 27, 1996. Edward G. Gill, Georgetown, for plaintiff, Joseph T. Screpesi. Mark L. Reardon and Christopher T. Logullo, Wilmington, for defendant, Draper-King Cole, Inc. Richard W. Pell, Wilmington, for defendant, Frankie L. Daniels. MEMORANDUM OPINION GRAVES, Judge. *1 This is a personal injury action which plaintiff Joseph T. Screpesi ("plaintiff) has brought against defendants Frankie L. Daniels ("Daniels") and Draper-King Cole, Inc. ("employer") as a result of a physical altercation between plaintiff and Daniels whereby plaintiff allegedly suffered injuries. Employer has filed a motion for summary judgment arguing that the facts show there is no basis for its liability. This is the Court's decision on the pending motion. FACTS 1 FN1. Employer has submitted an affidavit which states that with regard to the events of March 27, 1995, Daniels was acting on his own accord, was beyond the scope of

his employment, and was not acting as an agent, servant or employee of employer. These conclusory statements provide no facts which the Court can use in considering this summary judgment motion. The facts are hotly contested. For summary judgment purposes only, this Court will view these disputed facts in plaintiffs favor as he is the non-moving party. Alabi v. DHL Airways, Inc., Del.Super., 583 A.2d 1358, 1361 (1990). Daniels is a truck driver for employer. On March 27, 1995, his job involved driving employer's truck from employer's premises in Milton, Delaware to New York in order to deliver the load in the truck. While at employer's premises, but before taking the truck, Daniels realized that he had forgotten his money and cigarettes at his house in Georgetown, Delaware. He decided to go by his home to pick up his money and cigarettes. He did not return home before picking up the truck because he knew the additional time involved in driving to Georgetown from Milton and back to Milton would have made him late for his appointment in New York. The route he took was off the most direct path to New York from Milton. Defendant later was written up for being off route. However, there is no testimony from employer that .it directed Daniels on his routes. Furthermore, this Court recognizes that the deviation was minor in light of the distance of the trip. While driving employer's truck to his home on Route 5 southbound, Daniels was passed by plaintiff, who was driving a rental car. Plaintiff and Daniels became agitated with each other's driving. Ultimately, plaintiff pulled over to find out what the problem was. Daniels testified he pulled over because he could not go past plaintiff since plaintiff was stopped in the middle of the southbound lane and there was a no-passing line at

i 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

http://print.westlaw.comydelivery.html?dest=atp&format=HTMLE&dataid=A005580000...

12/28/2005

Case 1:05-cv-00046-JJF

Document 42

Filed 12/29/2005

Page 20 of Page 3 of 5 32

Not Reported in A.2d Not Reported in A.2d, 1996 WL 769344 (Del.Super.) (Cite as: Not Reported in A.2d) that spot. Daniels further testified he pulled over and got out of the truck to see what was plaintiffs problem regarding the driving. Upon exiting their respective vehicles, plaintiff and Daniels confronted one another concerning their driving. Ultimately, Daniels hit plaintiff in the head, thereby allegedly injuring him. I assume, again for summary judgment purposes onl