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March 31, 1997

MARVIN L. WILLIAMS, Plaintiff, -v.- SHENANGO, INC., Defendant.

The opinion of the court was delivered by: AMBROSE

 Plaintiff Marvin L. Williams ("Williams") filed a three count Complaint seeking compensation under the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"), and the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981. Williams contends that his former employer, Defendant Shenango, Inc. ("Shenango") interfered with his attempt to take leave under the FMLA; retaliated against him for having taken leave pursuant to the FMLA; and discriminated against him because of his race. Williams is an African-American.

 Currently pending is Shenango's Motion for Summary Judgment (Docket No. 9). Shenango claims that Williams' § 1981 claim is deficient because: (1) white employees who committed similar infractions were similarly treated; (2) Shenango's reasons for disciplining and discharging Williams were legitimate; and (3) Williams cannot show that Shenango's reasons for its actions were pretextual. Shenango similarly attacks Williams' FMLA claims as deficient because: (1) Williams was not needed to care for a family member with a serious health condition and therefore is not protected by the FMLA; (2) Williams received the leave to which he was entitled; (3) Williams was not disciplined as a result of taking FMLA leave; and (4) Williams cannot show that Shenango's reasons for disciplining and discharging him were pretextual.

 After careful consideration, and for the reasons set forth below, Shenango's Motion for Summary Judgment is granted in part and denied in part. Specifically, Shenango's Motion for Summary Judgment is denied with respect to Counts I and II, and granted with respect to Count III.


 Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Rule 56 mandates the entry of summary judgment, after adequate time for discovery, and upon motion, against the party who fails to make, a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 In considering a motion for summary judgment, the 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. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987), cert. denied, 483 U.S. 1052, 97 L. Ed. 2d 815, 108 S. Ct. 26 (1987). The dispute is 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, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (3d Cir. 1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the nonmoving party 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. Once the moving party satisfies this burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.

 Summary judgment must therefore be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988), quoting, Celotex, 477 U.S. at 322.


 Prior to his discharge, Williams had worked for Shenango, most recently as a loader helper, for approximately 22 years. In July of 1994, Williams' wife was hospitalized for abdominal surgery and required a period of hospitalization and lengthy recovery period at home. Sometime prior to her surgery, Williams informed his supervisor that he would need time off in the near future as a result of the surgery.

 At or about the time of the surgery, Williams requested a week's absence. Williams' request was denied and he was offered the option of taking a different week off. Williams refused the option and instead called off for the week of July 21, 1994. Although Shenango initially treated Williams' absences as unauthorized, it later dropped these charges after learning that they were authorized under the FMLA.

 On August 25, 1994, Williams received a four day suspension stemming from excessive absenteeism and leaving without relief. *fn1" Williams does not contest the fact that he left before his relief arrived. Nevertheless, he claims that these early departures were necessitated by his wife's surgery, and that Shenango was aware of this fact. *fn2"

 Williams then received a five-day suspension subject to discharge in September 1994. The suspension was predicated upon Williams having again left without relief, this time on September 23, 1994. Williams concedes that he left without relief, but again characterizes his actions as necessitated by his wife's surgery.

 After receipt of the five-day suspension, Williams and Shenango executed a Last Chance Agreement. Shenango explained that a Last Chance Agreement is a disciplinary technique used in lieu of discharge. An Agreement of this nature typically allows an employee who could otherwise be discharged for one or more infractions to keep his job on the condition that he will not violate other rules within a certain period of time. Williams' Agreement gave Shenango the unilateral right to terminate his employment for any additional infractions.

 On January 4, 1995, Williams failed to call off and failed to report at work as scheduled. At a disciplinary hearing on January 6, 1995, Williams told the then-assistant superintendent of coke operations that his mother had had a heart attack and been hospitalized. Although Cumer informed Williams that he would seek to verify the story, Williams did not recant. After learning that Cumer had unsuccessfully attempted to verify the story, Williams promised he would obtain a doctor's excuse. When Williams had not provided an excuse by January 12, 1995, he was issued a five-day suspension subject to discharge. At the January 16, 1995 hearing, Williams admitted that he had lied, and that he had simply overslept on the day in question. Shenango then converted the suspension to a discharge because the "no report/no show" on January 4th without adequate excuse violated the Last Chance Agreement.



 In Count III of his Complaint, Williams avers that similarly situated white employees at Shenango were treated more favorably than he, an African American. Specifically, Williams alleges that such employees were not suspended and/or terminated for conduct similar to or identical to the conduct for which he was suspended and ultimately discharged. Section 1981 provides, in relevant part:

 42 U.S.C. § 1981(a). The phrase "making and enforcing contracts" is defined to include "the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b).

 To survive a motion for summary judgment, a plaintiff must show that there is a material issue of fact from which an inference of disparate treatment based on race may be drawn. A plaintiff may accomplish this "by direct evidence of a racially discriminatory animus on the part of the employer, or if he is a member of a protected class, by the indirect burden shifting scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)...." Miller v. Yellow Freight Systems, Inc., 758 F. Supp. 1074, 1077 (W.D. Pa. 1991), aff'd, 941 F.2d 1202 (3d Cir. 1991).

 Here, Shenango alleges that the record is devoid of any direct evidence of racial animus, and that Williams must therefore prove his case through the burden shifting scheme. (Docket No. 10, p. 11). Under the McDonnell Douglas standard, Williams must show: (1) that he belongs to a protected class; (2) that he was qualified for his former job; (3) that he was discharged; and (4) that other persons not in a protected class who were guilty of the same work infractions were not discharged. Miller, 758 F. Supp. at 1077. Once Williams has established his prima facie case, the burden of production then shifts to Shenango to articulate a legitimate nondiscriminatory reason for the discharge. Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1065-67 (3d Cir. 1996). If Shenango is able to articulate such reasons, the burden of production then shifts to Williams, who must "cast sufficient doubt upon the employer's proffered reasons to permit a reasonable factfinder to conclude that the reasons are incredible...." Sheridan, 100 F.3d at 1072. Although the burden of production shifts throughout the analysis, the ultimate burden of persuasion always remains with Williams.

 Shenango challenges Williams' ability to prove a prima facie case only with respect to the fourth element - establishing a disparity of treatment. In the alternative, Shenango offers various reasons, which it characterizes as legitimate and nondiscriminatory, for disciplining Williams, and contends that the record is devoid of any evidence that such reasons are pretext.

 (A). Disparate Treatment

 According to Shenango, "there is no evidence in this case that any employee with a disciplinary history as rich as Williams' was not similarly disciplined through the progressive stages." (Docket No. 10, p. 14). Williams counters that the very documents upon which Shenango relies to prove Williams' infractions establish disparity of treatment. Specifically, Williams looks to three types of infractions by employees: (1) early departure; (2) excessive absenteeism; and (3) insubordination. Williams also claims that, unlike African American employees, white employees are not required to work double shifts.

 (1). Early departure.

 Williams submitted a chart in support of his contention that white employees who leave before the arrival of their replacements are not disciplined, as are similarly situated African American employees. *fn3" The chart identifies the following white employees as having left work, on a total of ten occasions, prior to the arrival of their replacement: Arthur Smith; Donald Prevendowski; Vierheller and J. Fikicz. Williams' counsel affirms in his affidavit that a review of the employee records for these individuals did not reveal any discipline for these ...

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