Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, Eastern District of Pennsylvania

December 3, 1999


The opinion of the court was delivered by: Dalzell, J.


Ismael Rodriguez, acting pro se, has sued*fn1 Polo Pennsylvania LLC*fn2 ("Polo") alleging that his termination from his job as a security guard at a Polo store in Reading, Pennsylvania violated 42 U.S.C. § 2000e (Title VII), 43 P. S. § 955 (the Pennsylvania Human Relations Act), and 42 U.S.C. § 1981. He specifically alleges that he was terminated because he is Latino.

Rodriguez and Polo have each filed cross-motions for summary judgment*fn3 and each has filed a response. For the reasons set forth below, we will grant summary judgment for Polo as to all claims in plaintiff's complaint.

I. Background

A. Facts

In January, 1998, Rodriguez answered a newspaper employment advertisement placed by Advance Security seeking applicants for the job of security guard with Advance Security. Advance Security hired plaintiff on January 12, 1998, and assigned him to work at defendant's Polo Ralph Lauren Factory Store in Reading, Pennsylvania.*fn4 On February 6, 1998, plaintiff's employment with Advance Security was terminated; he was informed of this in a phone call with Rex Francis, Advance Security's site supervisor.

B. Plaintiff's Claims

Rodriguez claims in his complaint and in his response to defendant's motion for summary judgment that he was fired from his job on February 6, 1998, with no cause given, and replaced by white males. He claims that Steven Brader, Polo's Loss Prevention Manager at the Reading store, made negative statements about Rodriguez to other guards, including statements derogatory to Rodriguez's Latino ethnicity, and that Brader harassed Rodriguez by following him around the store. Rodriguez claims that Brader prompted Advance Security to terminate Rodriguez, as well as other minority guards, and had them replaced with white male guards.

II. Rodriguez's Motion for Summary Judgment*fn5

In a one-page handwritten document*fn6, unsupported by any exhibits, Rodriguez argues that he should be granted summary judgment because: 1) there is no dispute over material fact, and 2) Polo had not made any "good faith attempt[s] to settle this case." Pl.'s Req. Mot. for Summ. J. at 1. However, the bare, unsubstantiated assertion that there is no disputed issue of material fact will not suffice to carry the moving party's burden of demonstrating that such is the case, see Matsushita, 475 U.S. at 585 n. 10, and evidence of settlement negotiations may not be considered in deciding the instant motions, see Fed.R.Evid. 408. We will therefore deny Rodriguez's motion for summary judgment.

III. Polo's Motion for Summary Judgment

A. Title VII and PHRA Claims

Title VII of the Civil Rights Act of 1964 states that "[i]t shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The Pennsylvania Human Relations Act states that it is an unlawful discriminatory practice "[f]or any employer because of the race, color . . . [or] national origin . . . of any individual" to discharge that individual from employment. 43 P. S. § 955(a). The Pennsylvania Human Relations Act is applied in accordance with Title VII, see Dici v. Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996).

A threshold legal question in considering liability under Title VII is whether the defendant is plaintiff's employer, and in its motion for summary judgment, Polo claims that it can have no Title VII liability to Rodriguez precisely because Polo was not his "employer" within the meaning of Title VII*fn7 and the PHRA*fn8. In order to determine if an individual is an "employee" for the purposes of Title VII, we look to the "common-law" test the Supreme Court endorsed in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992). In Darden, the Court considered the meaning of "employee" for ERISA purposes, and held that in interpreting the meaning of "employee" in a statute that does not helpfully define it, courts should look to common-law agency doctrine. Id. at 322-23. Although Darden did not consider the Title VII context explicitly, the breadth of the opinion's language has led trial courts to adopt the common-law test for Title VII in lieu of the "hybrid test" our Court of Appeals endorsed in 1983 in EEOC v. Zippo Mfg. Co., 713 F.2d 32, 37 (3d Cir. 1983). See, e.g., Hernandez v. Norris Square Civic Ass'n, No. 94-5925, 1995 WL 365436 (E.D.Pa. June 13, 1995); Powell-Ross v. All Star Radio, Inc., No. 95-1078, 1995 WL 491291 (E.D.Pa. Aug. 16, 1995)*fn9.

Under the Darden common-law agency test, we consider a long, non-exhaustive list of elements: 1) the hiring party's right to control the manner and means by which the product is accomplished, 2) the skill required, 3) the source of the instrumentalities and tools, 4) the location of the work, 5) the duration of the relationship between the parties, 6) whether the hiring party has the right to assign additional projects to the hired party, 7) the extent of the hired party's discretion over when and how long to work, 8) the method of payment, 9) the hired party's role in hiring and paying assistants, 10) whether the work is part of the regular business of the hiring party, 11) the provision of employee benefits, 12) the tax treatment of the hired party. See Darden, 503 U.S. at 323-24.

On the undisputed facts of this case*fn10, Polo cannot be Rodriguez's employer for purposes of Title VII.

Rodriguez was hired by Advance Security, not Polo, and it was Advance Security that paid him and provided him with health insurance and other benefits. See Decl. of Steven Brader ¶ 6. Rodriguez was reported to the Internal Revenue Service to be an employee of Advance Security, and Advance Security withheld taxes from Rodriguez's pay and he received his paycheck from the Advance Security site supervisor, Rex Francis. See id.; Dep. of Ismael Rodriguez at 57 (Decl. of John P. Quirke Ex. A)*fn11. Advance Security issued him his guard uniform (see id.; Dep. of Ismael Rodriguez at 58-59), and on the job, Rex Francis of Advance Security supervised him, see Dep. of Ismael Rodriguez at 57-60, 62-64 (detailing Francis's involvement in Rodriguez's employment). Polo had no power to assign Rodriguez "additional projects" with respect to his employment as a security guard, and Polo is a clothing retailer, not a security service seller. Simply put, Rodriguez was an employee of Advance Security, not of Polo, and his work for Advance Security at Polo's store was performed pursuant to Advance Security's contract with Polo for the provision of security services.*fn12

We therefore find that Title VII liability does not attach to Polo as plaintiff's employer and will grant summary judgment to Polo on the Title VII claims.

B. 42 U.S.C. § 1981 Claims

42 U.S.C. § 1981(a) states that "All persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens . . . ." Rodriguez claims that his rights under § 1981 were violated when Steven Brader forced Advance Security to fire him because of his Latino ethnicity.

As an initial matter, we note that in employment cases, the analysis of a § 1981 claim is done using the jurisprudential tests developed for Title VII claims, see Lewis v. University of Pittsburgh, 725 F.2d 910, 915 n. 5 (3d Cir. 1983); O'Brien v. City of Philadelphia, 837 F. Supp. 692, 699 (E.D.Pa. 1993). Claims under Title VII fall into two general categories: "mixed motive" cases, which are evaluated under a framework set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) as modified by the Civil Rights Act of 1991*fn13; and "pretext" cases, which are evaluated under a framework initially developed in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). It is not required that a plaintiff "choose" one of these liability theories at the summary judgment stage, but rather the case must go forward if plaintiff's claim would survive under either theory, see Armbruster v. Unisys Corp., 32 F.3d 768, 781 n. 17 (3d Cir. 1994). The "mixed motive" and "pretext" types of cases differ in the way in which the alleged discrimination is manifested: "mixed motive" cases involve evidence of direct intent to discriminate in the employment decision*fn14, while "pretext" cases involve circumstantial evidence that the employment decision was made on improper grounds, and that defendant's proffered reasons for the decisions are pretexts.

Here, plaintiff's pro se claims might sound in either of these liability forms. We will address a "mixed motives" claim first.

A "mixed motives" case requires that the plaintiff show by direct evidence that the decisionmakers placed substantial negative reliance on illegitimate criteria in reaching their decision; that is, the allegedly discriminatory conduct or statements must be associated with the decision made, see Starceski, 54 F.3d at 1096. Here, Rodriguez claims that Polo, in the person of Steven Brader, Polo's Loss Prevention Manager, caused Rodriguez's termination from Advance Security employment because of his Latino ethnicity. In support of its motion for summary judgment, Polo offers the Declaration of Steven Brader, averring that he "played no role whatsoever in the decision to terminate plaintiff." Decl. of Steven Brader ¶ 8. In his opposition to the summary judgment motion, plaintiff disputes this claim, but he offers no proper evidence whatever*fn15 to show that Brader did in fact influence Advance Security's decision to terminate him. Therefore, there remains no disputed issue of material fact as to a potential "mixed motives" claim, and consequently a such a claim cannot survive summary judgment.

Rodriguez also claims that the discrimination against him is demonstrated by the fact that he was replaced by three white workers after his termination. This amounts to an "indirect" or "pretext" claim of discrimination. In a "pretext" case, the plaintiff is required to make an initial showing of a prima facie case of discrimination comprising three elements: 1) that plaintiff is a member of a protected class, 2) that plaintiff was qualified for the position, and 3) that plaintiff was discharged under circumstances that give rise to an inference of unlawful discrimination, see Waldron v. SL Indus., Inc., 56 F.3d 491, 494 (3d Cir. 1995). In moving for summary judgment, Polo claims that the three white males who plaintiff alleges were hired to replace him were actually working for Advance Security*fn16 at the time Rodriguez was hired, and that therefore the claim the he was replaced by such men is clearly wrong*fn17. In support of this argument, Polo offers an Advance Security*fn18 work schedule labeled "Jan 1998" and including the days thirteen through nineteen; as noted above, Rodriguez was hired on January 12, 1998. Included on this schedule are the names of the three men who allegedly replaced plaintiff, but not the name of plaintiff, thus apparently supporting the claim that the individuals were working for Advance Security before plaintiff's hiring.

However, this schedule does not in fact serve to prove Polo's argument. In support of his opposition to summary judgment, Rodriguez submits several other work schedules, one of which is from "Jan 1998" and including the days sixteen through twenty-two. These include plaintiff's name. This produces a conundrum, since this schedule overlaps with the schedule Polo proffered (Rodriguez proffered the same schedule), raising a question as to which is the "real" schedule for that period. Fortunately, the schedules are also labeled with days of the week corresponding to the numbered days, and this labeling reveals*fn19 that the schedule Polo provided, with the names of the three white workers, is actually a work schedule for February 13-19, 1998, though it is mislabeled as being from "Jan 1998". Because Rodriguez was terminated on February 6, 1998, this schedule would provide evidence that he was replaced by the white workers. Thus, taking all inferences in favor of plaintiff, and in the absence of other arguments from defendant, Rodriguez may be said to have stated a prima facie case under the McDonnell-Douglas framework.

Since he has arguably made a prima facie case, the burden of production shifts to the defendant, who is required to articulate a legitimate, nondiscriminatory reason for the challenged employment action, see Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). Once such a legitimate, nondiscriminatory reason is proffered, the plaintiff must point to evidence that discredits the claimed nondiscriminatory reason or that shows beyond a preponderance of the evidence that the employer's action had a discriminatory motivating cause, see Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1067 (3d Cir. 1996) (citing Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).

Polo proffers as the legitimate reason for termination that Rodriguez had a poor work record, and includes as evidence several Advance Security "Daily Log" forms documenting Rodriguez's poor work performance.*fn20 Notably, Rodriguez fails to offer any evidence to show that his performance on the job was other than Polo's depiction of it. Nor has Rodriguez provided "specific facts" that would show that his poor performance was merely a pretext for his termination. He thus has failed to discredit the proffered reason for termination, and has failed to demonstrate, in the face of Polo's proffered reason, that a preponderance of the evidence shows that his termination had a discriminatory motivating cause.

Even if styled as a "pretextual" claim, then, Rodriguez's claim does not survive summary judgment, and we find, therefore, that summary judgment will be granted to defendant Polo as to plaintiff's 42 U.S.C. § 1981 claims, and, with them, as to his PHRA claims.*fn21


AND NOW, this 3rd day of December, 1999, upon consideration of plaintiff's motion for summary judgment, defendant's reponse thereto, defendant's motion to dismiss the complaint or, in the alternative, for summary judgment, plaintiff's reponse thereto, and defendant's reply brief, and for the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:

1. Defendant's motion for summary judgment is GRANTED; and

2. JUDGMENT IS ENTERED in favor of defendant and against plaintiff as to all Counts.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.