how much he used. (Clark Dep. at 26-27; Clark Aff. P 4.) Underkoffler suspended Clark immediately and subsequently notified Clark by letter that Clark was being terminated for "exercising improper control and judgment" over the petty cash account. (Underkoffler Aff. P. 4; see also Exh. 5 to Mot. Summ. Judg. P 1.)
Clark contends that Hess Trucking intentionally harassed him and unlawfully terminated him because of his race, and he also contends that the reason advanced by Hess Trucking for Clark's termination is merely a pretext for the real reason, which in Clark's view was because of his race.
II. LEGAL STANDARD.
Summary judgment may only be granted if 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 judgment as a matter of law. Fed. R. Civ. Proc. 56(c). In considering a motion for summary judgment, this Court must examine the facts in a light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact, and an issue is "genuine" only 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, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Where the nonmovant will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the nonmovant's burden of proof at trial. Celotex, 477 U.S. at 322.
Title VII prohibits employers from discharging an employee because of that employee's race. 42 U.S.C.A. § 2000e-2(a)(1) (1981). Clark has alleged that Hess Trucking intentionally discriminated against him because of his race when it fired him. Intentional discrimination cases fall within one of two categories: "pretext" and "mixed motives" cases. Griffiths v. Cigna Corp., 988 F.2d 457, 468 (3d Cir. 1993); Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 1992). "Whether a pretext or a mixed-motives case has been presented depends on the kind of circumstantial evidence the employee produces in support of [his] claim of illegal discrimination." Hook v. Ernst & Young, 28 F.3d 366, 374 (3d Cir. 1994). In a pretext case, an employee argues that the employer's facially legitimate reason for the adverse employment decision is false and is merely a pretext disguising its real reason for the adverse decision, i.e., discrimination. A pretext case follows the familiar process set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 252-56, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).
Under the pretext theory, the plaintiff has the initial burden to establish a prima facie case of employment discrimination. Griffiths, 988 F.2d at 469. A plaintiff establishes this prima facie case by demonstrating that he was a member of a protected class, that he was discharged from a position for which he was qualified, and that a person not within the protected class filled the position previously occupied by the plaintiff. See St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, U.S. , 113 S. Ct. 2742, 2747 (1993). Once the prima facie case is established, a presumption of discrimination is established and the burden is then shifted to the defendant to produce evidence establishing a legitimate non-discriminatory reason for the adverse employment action.
Id. If the defendant meets this burden of production, the presumption of discrimination drops from the case; the plaintiff must then satisfy the ultimate burden of proving discrimination by showing that the employer's proffered explanation was not the true reason for the employment decision and that race was. Id.
In a mixed motives case, on the other hand, the plaintiff's theory is based on the premise that the decision to terminate resulted from a mixture of legitimate and illegitimate reasons. Under this theory, the analysis set forth in McDonnell Douglas/Burdine does not apply, and the Court must instead use the analysis erected by the Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228, 246-48, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989). Griffiths, 988 F.2d at 470. Not all evidence that is probative of discrimination entitles an employee to the Price Waterhouse burden shifting framework. Hook, 28 F.2d at 373. Under the mixed motives theory, a plaintiff must present evidence substantially different from that sufficient to establish a prima facie case under a pretext theory. Griffiths, 988 F.2d at 470. To establish a mixed motives case, a plaintiff has the onerous burden of presenting "direct" or "overt" evidence of discrimination, meaning evidence of conduct or statements by persons in the decision-making process that directly reflects the alleged discriminatory attitude. Armbruster v. Unisys Corp., 32 F.3d 768, 778-79 (3d Cir. 1994); Griffiths, 988 F.2d at 470. If a plaintiff satisfies this burden, the defendant must then prove that it would have made the same decision even if the forbidden consideration had played no role in the employment decision.
Id. After reviewing the evidence submitted by the parties, we find that Clark has failed to demonstrate that there is a genuine issue of material fact under either the pretext or mixed motives theory of liability.
A. Mixed Motives Theory.
Clark argues that because Harner was a "Vice President of Finance" at Hess Trucking, the racially offensive language Harner used during the September 9 telephone conversation constitutes direct evidence that Hess Trucking discriminated against Clark when they fired him so as to preclude summary judgment under the mixed motives theory of liability. (See Pl. Br. in Resp. to Def. Mot. at 15.) However,
stray remarks in the workplace. . . cannot justify requiring the employer to prove that its hiring or promotion decision were based on legitimate criteria. Nor can statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself, suffice to satisfy the plaintiff's burden in this regard."
Armbruster, 32 F.3d at 778 (quoting Price Waterhouse, 490 U.S. at 277 (O'Connor, J., concurring)). In this case, Clark has failed to present evidence that Harner either made the decision to terminate Clark or that she played a role or exercised any influence whatsoever over that decision. In fact, the record fails to document that Harner had any connection to employment decisions at Hess Trucking at all. Although Harner's title, "Vice President of Finance," suggests that she may have had some type of decisionmaking authority at Hess Trucking, Clark has failed to produce any evidence that the she was connected in any way to the decision to fire Clark. The statements made by Harner during the September 9 telephone call are thus insufficient to create a genuine issue of material fact under the Price Waterhouse mixed motives framework.
B. Pretext Theory.
The Third Circuit Court of Appeals has recently summarized the summary judgment standard for Title VII pretext cases. When the defendant answers plaintiff's prima facie case with legitimate, nondiscriminatory reasons for Its action, a plaintiff may defeat summary judgment in one of two ways: a plaintiff must either (1) present sufficient evidence "to meaningfully throw into question, i.e., to cast substantial doubt upon" the employer's proffered reason for its actions; or (2) produce sufficient evidence from which a factfinder could reasonably conclude that "an illegitimate factor more likely than not was a motivating or determinative cause of the adverse employment decision." Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
To discredit the employer's proffered reasons, a plaintiff must establish "such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence.'" Fuentes, 32 F.3d at 765. To show that an illegitimate factor was more likely than not a motivating cause of the adverse decision, a plaintiff could defeat summary judgment if he produced sufficient evidence showing that, inter alia, the employer in the past had subjected him to unlawful discriminatory treatment, that the employer treated similarly situated persons not of his protected class more favorably, or that the employer had previously discriminated against other members of his protected class. Id. This standard admittedly places a difficult burden on the plaintiff, but it is necessary to accommodate the competing interests between "the goal of discrimination law and our society's commitment to free decisionmaking by the private sector in economic affairs." Id. (citing Ezold, 983 F.2d at 523 (3d Cir. 1992).
The parties do not dispute that Clark has established a prima facie case of race discrimination. Hess Trucking contends that Clark has failed to produce evidence showing that its proffered reason for firing Clark, improper management and control of the petty cash fund, was merely a pretext for some other reason, presumably race discrimination. Clark argues in response that "specified facts exist which overwhelmingly support an inference that Hess Trucking did act for discriminatory reasons," pointing to "Plaintiff's position at Hess Trucking, the approval of his use of the petty cash fund, and his treatment following Mr. [sic] Harner's remarks" as creating a genuine issue of material fact on the pretext issue. (Pl. Br. Resp. to Mot. at 18.) After reviewing all the evidence submitted by the parties, we agree with Hess Trucking Clark has failed to satisfy his burden of producing sufficient evidence from which a reasonable factfinder could find that Hess Trucking's reason was a pretext.
Clark points to his affidavit as evidence that he had authority to use the petty cash for personal reasons and that he followed Underkoffler's instructions in managing the petty cash. Clark's affidavit states in relevant part:
Prior to November 20, 1992, the company had authorized me, through Mr. Underkuffler [sic], to reimburse myself for various personal expenses with money from the petty cash account. . . At no time did I remove money from the petty cash account without specific authorization from my supervisor, Joseph Underkoffler. I have never taken or stolen money from Hess Trucking, and my practices with respect to the petty cash account were authorized by Mr. Underkuffler.