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DAVIS v. SHERATON SOC'Y HILL HOTEL

December 18, 1995

RICHARD DAVIS
v.
SHERATON SOCIETY HILL HOTEL



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 Defendant, Sheraton Society Hill Hotel, seeks a summary judgment on the Complaint against it filed by Plaintiff, Richard Davis. This case is a reverse sex discrimination action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e--2000e-17 (1994), as well as the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. §§ 951-963 (1991) (PHRA).

 This Court will grant a summary judgment in the event that the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). We will determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

 In making this determination, we will view the facts in the light most favorable to the non-moving party and make all reasonable inferences in favor of the non-moving party. Id. at 256. Once the movant has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 111 S. Ct. 1313, 113 L. Ed. 2d 246 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).

 In Title VII sex discrimination cases, *fn1" the Supreme Court has delineated a three-part, burden of production-shifting analysis. The standard we apply to this litigation is slightly different from the typical analysis because this action asserts reverse discrimination, i.e., discrimination against Davis due to his being male. *fn2" Therefore, to make a prima facie case of reverse sex discrimination, he must show:

 
1) background circumstances supporting the suspicion that the defendant is that unusual employer who discriminates against the majority;
 
2) he was qualified for his position;
 
3) despite these qualifications, he was terminated from his position; and
 
4) he was replaced by someone not in his class, or that someone in another class, otherwise similarly situated, was treated more favorably.

 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 & n.13, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Livingston v. Roadway Express, Inc., 802 F.2d 1250, 1252 (10th Cir. 1986). The prima facie case is not intended to be rigidly applied or difficult to show. Metal Serv., 892 F.2d 341, 347.

 Once a prima facie case is made, the burden of production switches to Sheraton to assert legitimate, non-discriminatory reasons for the allegedly discriminatory actions. Id. If Sheraton can make that showing, the burden of production switches back to Davis to rebut Sheraton's proffered legitimate reasons by a preponderance of the evidence. Id. This can be done either by showing that each reason is a recent fabrication or that discrimination is more likely than not a motivating or determining cause of the actions. McDonnell Douglas, 411 U.S. at 804; Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 637-38 (3d Cir. 1993).

 At the summary judgment stage, a plaintiff can produce evidence that either makes us disbelieve the defendant's proffered reasons or show such implausibilities and inconsistencies that the employer's proffered reasons become unbelievable. A plaintiff "need not prove at the summary judgment stage that the employer's purported reason for its actions was false, but the plaintiff must criticize it effectively enough so as to raise a doubt as to whether it was the true reason for the action." Solt v. Alpo Pet Foods, Inc., 837 F. Supp. 681, 684 (E.D. Pa. 1993) (citing Naas v. Westinghouse Elec. Corp., 818 F. Supp. 874, 877 (W.D. Pa. 1993)). However, "an ill-informed decision or an ill-considered decision is not automatically pretextual if the employer gave an honest explanation for termination." Billups v. Methodist Hosp., 922 F.2d 1300, 1304 (7th Cir. 1991).

 The Third Circuit has held that "factors such as the defendant's credibility, the timing of an employee's dismissal, and the employer's treatment of the employee could raise an inference of pretext which would make summary judgment for the employer inappropriate." Josey, 996 F.2d at 638-39 (defendant cited economic considerations to explain African American plaintiff's termination but replaced plaintiff with Caucasian employee at higher wage).

 FACTS

 The following statement of facts is not wholly uncontested. On a motion for summary judgment, however, we take the non-movant's facts as true and so it is Davis's version that follows. Richard Davis was hired by Sheraton in March, 1990 as an On Call Banquet Waiter. In February, 1993, Davis's female manager, Jolette Kellyman, encouraged him to apply for the position of Guest Service Agent (GSA). He was awarded that position and satisfactorily completed his training. In June, 1993, Davis received additional training to become a Night GSA. This position permitted him to work the Graveyard shift on a four days on/three days off schedule. This was a desirable shift because of the three days off. In July, 1993, Davis received an overall "good" rating on his first formal evaluation as a GSA.

 In mid-September, 1993, Davis went on a scheduled week-long vacation to Mexico. On the last day of his trip, Davis slipped on some stairs and injured his back. When he returned, his doctor ordered him to take two weeks off for bed rest and then limited him to light duty work for another two weeks. During the time that Davis was on vacation, on bed rest and doing light duty work in Sheraton's telephone reception office, his Night GSA duties were covered by a female co-worker, Lori Murray.

 When Davis returned to Sheraton for light-duty work on October 5, 1993, Murray told Davis that she had bargained for his job and that Kellyman had given her the Night GSA position permanently. Davis questioned Kellyman about Murray's statement. Kellyman denied it, but told Davis that she was not sure that he would be returned to the Night GSA position. About two weeks later, Kellyman again told Davis that she had reservations about returning him to the Graveyard shift because of problems she believed he had performing the job.

 Davis ultimately resigned on November 2, 1993. On that day, he and several other employees had gathered together to talk and laugh. One of the employees was a man performing his duties in the wrong place. Kellyman called Davis into her office and told him that she could hear him above all the others, that his conduct was unprofessional and that he should stop. In addition, she instructed him to tell his male co-worker to return to his station. Davis left her office, returned to his station and communicated her message to his co-worker, who did not leave. A few minutes later, a female co-worker tried to engage Davis in conversation. He told her that he could not talk to her because ...


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