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October 7, 1997


The opinion of the court was delivered by: JOYNER


 October 7, 1997

 This civil action has been brought before the Court on Defendants' Motion for Summary Judgment. Following careful consideration of the record and for the reasons set forth in the following paragraphs, we conclude that summary judgment is appropriately entered in defendants' favor on all of plaintiff's claims.


 In June, 1992 Plaintiff, who is a black man of nigerian national origin, was hired by the Albert Einstein Medical Center as a third year resident in the Department of Obstetrics and Gynecology. (Plaintiff's Amended Complaint, P11; Defendants' Amended Answer, P11). Plaintiff contends that "at least since the Spring of 1993" until he was finally terminated on August 24, 1993, he was subjected to discriminatory treatment and a hostile environment at the defendant medical center and was harassed and excessively and unnecessarily criticized by the medical center staff, including Defendants Levy and Yeh and other resident doctors. (Amended Complaint, Ps 22-25, 28-28).

 Plaintiff also avers that defendants defamed him and that he was treated differently than other residents who were outside the protected race and of different national origin. According to Plaintiff, he received disparate treatment and was eventually terminated because of his race and national origin and because he opposed defendants' unlawful unemployment practices. Plaintiff brought this suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq., 42 U.S.C. § 1981, the Pennsylvania Human Relations Act, 43 P.S. § 951, et. seq., and Pennsylvania common law. (Amended Complaint, Ps 2, 53, 57-65, 71).

 In answer to the Amended Complaint, Defendants deny making any defamatory statements about the plaintiff and submit that Dr. Momah was terminated solely for performance-based reasons, unrelated to his race, national origin or in retaliation for opposition to impermissible employment practices. Upon completion of discovery, defendants filed this motion to dismiss for lack of jurisdiction and for summary judgment on March 22, 1996.

 On June 18, 1996, plaintiff's Title VII claims were remanded to the Equal Employment Opportunity Commission ("EEOC") for investigation and attempted conciliation and the matter was placed in suspense status pending the outcome of the conciliation proceedings or passage of 180 days, whichever was sooner. Thereafter, on February 24, 1997, this case was removed from suspense and defendants' motion for summary judgment was renewed.

 As plaintiff has now apparently exhausted his administrative remedies, that portion of defendants' motion which seeks dismissal on the basis of insufficient jurisdiction shall be denied as moot. See, e.g.: Brown v. General Services Administration, 425 U.S. 820, 832, 96 S. Ct. 1961, 1967, 48 L. Ed. 2d 402 (1975); Schanzer v. Rutgers University, 934 F. Supp. 669, 673 (D.N.J. 1996); Burton v. Great Western Steel Company, 833 F. Supp. 1266, 1269 (N.D. Ill. 1993). This motion shall therefore be treated solely as one for summary judgment.


 The legal standards and principles to be followed by the district courts in resolving motions for summary judgment are clearly set forth in Fed.R.Civ.P. 56. Subsection (c) of that rule states, in pertinent part,

... The judgment sought shall be rendered forthwith 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 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.

 In this way, a motion for summary judgment requires the court to look beyond the bare allegations of the pleadings to determine if they have sufficient factual support to warrant their consideration at trial. Liberty Lobby, Inc. v. Dow Jones & Co., 267 U.S. App. D.C. 337, 838 F.2d 1287 (D.C. Cir. 1988), cert. denied, 488 U.S. 825, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988). See Also: Aries Realty, Inc. v. AGS Columbia Associates, 751 F. Supp. 444 (S.D. N.Y. 1990).

 As a general rule, the party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In considering a summary judgment motion, the court must view the facts in the light most favorable to the party opposing the motion and all reasonable inferences from the facts must be drawn in favor of that party as well. U.S. v. Kensington Hospital, 760 F. Supp. 1120 (E.D. Pa. 1991); Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169 (E.D. Pa. 1990).

 When, however, "a motion for summary judgment is made and supported [by affidavits or otherwise], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response...must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate may be entered against [it]." Fed.R.Civ.P. 56(e).

 A material fact has been defined as one which might affect the outcome of the suit under relevant substantive law. Boykin v. Bloomsburg University of Pennsylvania, 893 F. Supp. 378, 393 (M.D.Pa. 1995) citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id., citing Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.


 In Counts I and II of his amended complaint, Plaintiff contends that Defendants violated Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et. seq. Count III seeks relief under 42 U.S.C. § 1981 and Counts IV through VII allege common law claims for defamation, breach of contract and under the Pennsylvania Human Relations Act, 43 P.S. § 951, et. seq.

 1. Plaintiff's Discrimination Claims under Title VII and the PHRA

 Title VII, 42 U.S.C. § 2000e, renders it an unlawful employment practice for an employer to, among other things, discharge or otherwise discriminate against an individual with respect to his compensation, terms, conditions or privileges of employment or to limit, segregate or classify its employees in any way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect that individual because of his or her race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2(a).

 "Employer" for Title VII purposes is defined as "a person engaged in an industry affecting commerce who has fifteen or more employees...and any agent of such a person." 42 U.S.C. § 2000e(b). The law in this Circuit is now clear that individual employees cannot be held liable under Title VII. Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077-78 (3rd Cir. 1996); DeJoy v. Comcast Cable Communications, Inc., 941 F. Supp. 468, 474 (D.N.J. 1996). Also see, Dici v. Commonwealth of Pennsylvania, 91 F.3d 542 (3rd Cir. 1996) and Ascolese v. Southeastern Pennsylvania Transportation Auth., 902 F. Supp. 533 (E.D.Pa. 1995). Accordingly, as defendants Levi and Yeh cannot be held liable under Title VII, judgment in their favor shall be entered as a matter of law. *fn1"

  In McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the Supreme Court set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. *fn2" Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employment decision. Id., 411 U.S. at 802, 93 S. Ct. at 1824. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. 411 U.S. at 804, 93 S. Ct. at 1825.

 The Court first clarified the nature of these shifting burdens in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981) and more recently in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). In Burdine, the Supreme Court observed that "when the plaintiff has proved a prima facie case of discrimination, the defendant bears only the burden of explaining clearly the nondiscriminatory reasons for its actions." 450 U.S. at 260, 101 S. Ct. 1097. Throughout, however, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Id., 450 U.S. at 253, 101 S. Ct. at 1093.

 In Hicks, the Supreme Court again revisited the issue of proof in Title VII cases as there was confusion in the Circuits over whether a plaintiff would be entitled to the entry of judgment if a defendant failed to adduce any evidence to rebut a plaintiff's showing that the defendant's proffered reasons for its employment decision were pretextual. In that case, the Court of Appeals for the Eighth Circuit had reasoned that "because all of defendants' proffered reasons were discredited, defendants were in a position of having offered no legitimate reason for their actions...[and] were in no better position than if they had remained silent, offering no rebuttal to an established inference that they had unlawfully discriminated against plaintiff on the basis of his race." Id., 509 U.S. at 509, 113 S. Ct. at 2748, (quoting from Circuit Court opinion at 970 F.2d 487, 492).

 In reversing the Circuit Court's reversal of the district court and its entry of judgment in the plaintiff's favor, the Supreme Court emphasized that under the McDonnell-Douglas scheme, establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee and thereby places upon the defendant the burden of producing an explanation to rebut the prima facie case. It does not shift the ultimate burden of proof to the defendant. 509 U.S. at 506-507, 113 S. Ct. at 2747.

 In short, once the defendant has met its burden of producing a non-discriminatory explanation for the employment action, the presumption created by the prima facie case dissolves and the trier of fact must proceed to decide the ultimate issue in the case: whether plaintiff has proved that defendant intentionally discriminated against him on the basis of his race. In making this determination, the factfinder may disbelieve the reasons put forth by defendant. While this disbelief may permit an award to be made in plaintiff's favor, it does not compel it. See: Id., 509 U.S. at 511, 113 S. Ct. at 2749. ["The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may together with the elements of the prima facie case, suffice to show intentional discrimination."]

 The Hicks decision did not entirely end the inquiry however, as both the courts and litigants continued to struggle with the question of what nature and quantum of evidence was necessary to permit a jury to find that an employer engaged in unlawful employment discrimination and for a plaintiff to surmount a motion for judgment as a matter of law.

 In the intervening years since Hicks was decided, the Third Circuit has wrestled with these questions on a number of occasions. See, Waldron v. SL Industries, supra; Miller v. CIGNA Corp., 47 F.3d 586 (3rd Cir. 1995); Sempier v. Johnson & Higgins, 45 F.3d 724 (3rd Cir. 1995); Fuentes v. Perskie, 32 F.3d 759 (3rd Cir. 1994). Most recently, in reversing the district court's entry of judgment as a matter of law for the defendant-employer in Sheridan v. E.I. Dupont deNemours and Co., 100 F.3d 1061 (3rd Cir. 1996), the Third Circuit observed it was still the jury which must determine whether the inference of discrimination is warranted by assessing the weight of the evidence and the credibility of the witnesses. However, the Court reasoned,

This does not mean that the courts in discrimination cases lose their traditional obligation, when faced with a motion for judgment as a matter of law, to review the adequacy of the showing presented to the factfinder. The district court must determine whether the plaintiff has cast sufficient doubt upon the employer's proffered reasons to permit a reasonable factfinder to conclude that the reasons are incredible....The non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them worthy of credence....(citations omitted) But once the court is satisfied that the evidence meets the threshold ...

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