make up this exhibit, as submitted, would be inadmissible at trial, and, thus, cannot be considered in support of Plaintiff's argument. See Daley v. St. Agnes Hospital, Inc., 490 F. Supp. 1309, 1315 (E.D. Pa. 1980) (Becker, J.) The conclusory statements in Plaintiff's brief, which rely on the unidentified exhibits, refer to the "relevant geographic area," "workforce pool," "underutilization [of] blacks," and "qualified blacks." Brief, at 10-11. These statements, inadequately supported, are even less helpful.
Finally, even if exhibit 8 were properly presented, we disagree that Plaintiff would have established, on this record, a "pattern or practice" of discrimination, nor do we believe Plaintiff would be entitled to a presumption that Mr. Smith's discharge was based on impermissible considerations. A "pattern or practice" of discrimination simply means a generalized version of disparate treatment. Goodman v. Lukens Steel Co., 580 F. Supp. 1114, 1121 (E.D. Pa. 1984). Even if we assume that Plaintiff had offered admissible statistical evidence, we do not agree that this would serve to shift the burden of proof in an individual disparate treatment case. In this regard, we agree with the reasoning of the Court in Taylor v. Secretary of the Army, 583 F. Supp. 1503 (D.Md. 1984). We believe the Taylor court properly distinguished the case of Franks v. Bowman, 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976) and Teamsters v. United States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977), which Plaintiff also relies on, as involving situations of a class action, in the case of Franks, and of a suit by the Government, in the case of Teamsters. In both cases, the actions challenged a variety of company policies affecting numerous employees. In distinguishing Franks and Teamsters, the court in Taylor noted that the analysis of these cases, allowing for a shifting in the burden of proof, has never been employed in an individual action challenging an allegedly discriminatory discharge. 583 F. Supp. at 1509.
For the above reasons, we do not believe that the statistical evidence presented by Plaintiff is admissible, nor does it create a genuine dispute as to a material fact sufficient to defeat a motion for summary judgment.
C. Instances of Racial Animus
We come to what we believe to be the most difficult issue before us: whether, when a Defendant articulates a legitimate reason for a challenged action, and where the court finds no evidence of disparate treatment between white and black employees with respect to discharges by the employer, evidence of racial animus on the part of the supervisor responsible for the termination in question creates a genuine issue of fact as to pretext sufficient to preclude entry of summary judgment.
In considering this question, we return to the standard in this circuit that a plaintiff must prove that race was a "but for" reason for the challenged action. Lewis v. University of Pittsburgh, 725 F.2d 910, 915 (3d Cir. 1983), cert. denied, 469 U.S. 892, 105 S. Ct. 266, 83 L. Ed. 2d 202 (1984). While the Third Circuit has not dealt explicitly with the question of a "mixed motive" discharge in a Title VII case, we believe that the standard adopted in Lewis mandates the entry of summary judgment. In so holding, we observe that a motion for summary judgment is not defeated because an issue of fact exists; the factual dispute must be material to the resolution of the dispute. EEOC v. Westinghouse Electric Corp., 725 F.2d 211, 218 (3d Cir. 1983), cert. denied, 469 U.S. 820, 105 S. Ct. 92, 83 L. Ed. 2d 38 (1984). A fact is material if its determination can affect the outcome of the case. McCann v. Delaware River Port Auth., 548 F. Supp. 1206, 1211 (E.D. Pa. 1982) (citing Burke v. Leader Dogs for the Blind, 516 F. Supp. 1374, 1375 (E.D. Pa. 1981)).
Plaintiff states that Les Lenhart, plaintiff's supervisor, told a racial joke in front of Melvin Bowe, another black employee, which caused a complaint to be filed with the NAACP and an apology given to Bowe. Plaintiff's Brief in Opposition to Summary Judgment, at 5, (citing Lenhart Deposition, at 81). Plaintiff also states that Lenhart harassed Andrew Brown, another black employee, who, in turn, filed a charge of race discrimination with the EEOC. Id. at 5. While Plaintiff refers to a conciliation agreement between Hall's and the EEOC, such an agreement is not part of the record, and insofar as Mr. Lenhart's deposition states that he heard of an agreement between Hall's and the EEOC, such testimony is clearly hearsay. See Ex. 5-5A to Plaintiff's Brief (Lenhart Deposition, at 79-80). Plaintiff also refers to an instance where Lenhart called Smith a "nigger," but supplies no reference to the record in this case. Mr. Smith testified in his deposition to an altercation which took place between Mr. Lenhart and Mr. Smith at Mr. Smith's unemployment compensation hearing, which was allegedly provoked by Mr. Lenhart calling Mr. Smith a "nigger." See Smith Dep., at 175-76. See also Lenhart Dep., at 97-103.
All three instances are offered as evidence of racial animus on the part of Mr. Lenhart. The last example occurred subsequent to Mr. Smith's discharge, and was the only example involving Mr. Smith.
Taking all inferences in Plaintiff's favor, we will assume that these instances establish that Mr. Lenhart was racially biased.
In Behring Int'l, Inc. v. NLRB, 675 F.2d 83 (3d Cir. 1982), the Court of Appeals considered the situation of a "mixed motive" discharge, challenged under the National Labor Relations Act, ("NLRA"), 29 U.S.C. § 158(a)(3). Specifically, the Court considered whether the National Labor Relations Board ("the Board") acted properly in shifting the burden of persuasion to the employer to demonstrate that the same action would have been taken in the absence of the protected conduct. The Court, relying on cases construing Title VII, held that this procedural scheme violated the "but for" standard set forth for such cases in Wright Line, a Division of Wright Line, Inc., 251 N.L.R.B. 1083 (1980). 675 F.2d at 87-90.
In Behring, the Court stated,
We recognize that there is a distinction between "pretext" and "dual motive" cases. In Lippincott Industries, Inc. v. NLRB, 661 F.2d 112, 114 (9th Cir. 1981), however, the court observed that "in terms of the proper legal standard to be applied, the difference between these two types of cases is of little importance." It explained: "In either instance, the employer has asserted justifiable, legitimate business reasons for the discharge. The difference is that in a pretext case the employer's reasons are discredited or otherwise rejected, leaving only the impermissible reason, while in a mixed motive case, the relative causative force of the employer's reasons is compared against the impermissible reason to determine whether the latter is the moving cause behind the discharge." Id.
675 F.2d at 86 n.3.
In so holding, the Court observed that the Board must determine that the employee would not have been discharged but for the protected union activity. "No violation exists if the employer would have made the same decision to discharge the employee in any event, absent the shielded conduct." Id. at 87. The Court noted, "'if it is found that the employee would have been disciplined for proper cause notwithstanding the employer's attitude toward the union, the discipline must be held to be nondiscriminatory, because in that case the causal relationship between the anti-union bias and the discipline would be insufficient to support a conclusion that the discipline was administered "because of" the protected activity. . . . '" Id. at 87-88 (quoting Gould, Inc. v. NLRB, 612 F.2d 728, 734 (3d Cir. 1979), cert. denied, 449 U.S. 890, 101 S. Ct. 247, 66 L. Ed. 2d 115 (1980)).
We believe that the Third Circuit, consistent with Lewis v. University of Pittsburgh, supra and Behring, would adopt the same "but for" test in the case of a mixed motive discharge under Title VII. But see Bibbs v. Block, 749 F.2d 508, 512 (8th Cir. 1984), reh'g en banc granted March 8, 1985, (in mixed motive case, Plaintiff need only show racial reasons "more likely than not" influenced employment decision to satisfy "but for" requirement of McDonnell Douglas).
Applying this reasoning, we find that where Plaintiff had an accident, failed to report it, was discharged for failure to report the accident, and the evidence does not show any comparable instances where the Company did not discharge white drivers who failed to report accidents, instances of racial animus on the part of Mr. Lenhart do not raise a genuine issue as to pretext.
For the reasons stated above, we will grant Defendant Hall's Motion for Summary Judgment. Since Plaintiff took the position in its Pretrial statement that it did not find any discriminatory conduct on the part of the union, and since we do not believe that any such facts are alleged, we will also enter judgment in favor of the union in this case.
AND NOW, to-wit, this 29th day of May, 1985, for the reasons stated the foregoing opinion, it is hereby ORDERED, ADJUDGED and DECREED that the Motion for Summary Judgment of Defendant Hall's Motor Transit Company be and hereby is GRANTED.
It is FURTHER ORDERED that judgment also be and hereby is entered in favor of Defendant General Teamsters, Chauffeurs, Warehousemen and Helpers Local Union 261.
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