The opinion of the court was delivered by: JACOB HART, Magistrate Judge
In this action, James Beverly ("Beverly"), originally alleged that the
Desmond Hotel and Conference Center, (the "Desmond"), was liable to him
under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.,
for racial and religious discrimination, and under the ADEA,
29 U.S.C. § 621 et seq., for discrimination on the basis of age. The
Honorable Stewart Dalzell, to whom this case was originally assigned,
classified Beverly's claims as follows: (a) for hostile work environment
on the basis of race religion and age; (b) for failure to promote on the
basis of race, religion and age; (c) for discriminatory discharge on the
basis of race, religion and age; and (d) for retaliatory discharge.
Order, of July 2, 2003, at ftn. 1.
However, in two orders entered on the Desmond's motion for summary
judgment, dated July 2, 2003, and September 25, 2003, Judge Dalzell
dismissed all of Beverly's claims except for the claim of failure to
promote on the basis of age, in violation of the ADEA. This case was
subsequently transferred here by consent of the parties, and in
accordance with 28 U.S.C. § 636(c).
Trial in this case was scheduled for the afternoon of Tuesday, January
20, 2004, with the jury to be chosen that morning. On Friday, January 16,
2004, however, I informed the parties in a telephone conference that I
would hear argument on the morning of January 20, before jury selection,
as to whether summary judgment should be entered in favor of the Desmond
because of Beverly's inability to prove damages.
On the morning of January 20, 2004, I heard oral argument on this
issue. After this, I stated on the record my intention to grant summary
judgment in favor of the Desmond. Transcript of January 20, 2004, Hearing
at 15-18. I issued a written order to that effect on the same day. Order
of January 20, 2004, Docketed as Document No. 42. I specified in court,
and in my written order, however, that I would issue an opinion fully
explaining my holding. I now set forth that opinion.
Beverly worked at the Desmond between July 1999 and April, 2000.
Pretrial Stipulation at 1-2 ¶¶ 1, 10. He claimed that he expressed to
the Desmond his interest in a job as a busboy in the dining room, and was
told that he would be trained for this position. Pretrial Stipulation at
2-3, ¶¶ 5-6, 9. However, he was never trained or selected as a
busboy. Beverly claimed that, in a conversation which took place shortly
after he left the Desmond, General Manger Michael Chain told him that he
had never been made a busboy because he was too old. Judge Dalzell's
Order of July 2, 2003, at 4, ¶ (m), citing Beverly Deposition at
The parties agreed that the salary for a busboy was actually lower than
the salary for a kitchen worker. Pretrial stipulation at 1, ¶¶ 3-4.
Nevertheless, Beverly maintains that he viewed the job change as a
promotion because it offered more prestige, better working conditions,
was a stepping stone to a waiter position which would have been
well-paid. Pretrial Stipulation at 2-3, ¶¶ 7-8.
Summary judgment is warranted where the pleadings and discovery, as
well as any affidavits, 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.Pr. 56. A court may grant summary judgment sua
sponte to a non-moving party in appropriate circumstances. Gibson v. City
of Wilmington, No. 02-3952, 2004 WL 36059 at * 4 (3d Cir. Jan. 8, 2004);
Chambers Development Company v. Passaic County Utilities Authority,
62 F.3d 582, 584 n. 3 (3d Cir. 1995).
In Gibson, the Court of Appeals for the Third Circuit pointed to a
quote from an earlier Third Circuit case which held that a sua sponte
grant of summary judgment was inappropriate where the party against which
it was granted was not afforded the ten days notice required by
Fed.R.Civ.Pr. 56(c). 2004 WL 36059 at *5, quoting Otis Elevator Company
v. George Washington Hotel Corporation, 27 F.3d 903, 910 (3d Cir. 1994).
The Gibson court held, however, that sua sponte summary judgment could
also be granted immediately before trial, even without ten-days notice,
where (a) the point at issue is purely legal; (b) the record is fully
developed and (c) the failure to give notice does not prejudice ...