United States District Court, E.D. Pennsylvania
February 13, 2004.
KATRINA WILLIAMS-McCOY, Plaintiff,
STARZ ENCORE GROUP a/k/a ENCORE MEDIA COMPANY, Defendant
The opinion of the court was delivered by: WILLIAM YOHN, JR., District Judge
Memorandum and Order
Plaintiff Katrina Williams McCoy ("McCoy") brings this Title VII
action against her former employer, Starz Encore Group ("Starz"),
alleging that defendant's decision to terminate her employment was
impermissibly motivated by race-based animus. Presently before this court
is defendant's motion for summary judgment.
I. Factual Background*fn1
In the autumn of 1999, plaintiff Katrina Williams McCoy applied for a
position as District Manager of the East Coast region at Starz, a
national media company. Pl.'s Answer to
Def.'s Statement of Uncontested Facts ("Pl.'s Statement"); see
also McCoy Dep. at 9 and 107. After speaking with Que Spalding, the
president of Starz, and Jillaina Wachendorf, plaintiff was referred to
Robin Feller, the regional vice president of Starz. McCoy Dep. at 107. On
October 21. 1999, plaintiff sent a letter to Feller indicating that she
had experience in the cable industry and was interested in a District
Manager position at Starz. Id. at 306-08. Plaintiff was
interviewed by Starz Director Tracey Sartino, Feller, Miles McNamee, a
regional vice president, and Susan Geiselhart, division vice president.
Pl.'s Statement at ¶¶ 2-3. Upon defendant's decision to hire McCoy,
Feller called plaintiff, offered her the position at a starting annual
salary of $60,000, and plaintiff commenced work as District Manager for
the East Coast region of Starz on December 30, 1999. Id. at
¶¶ 4-8. Plaintiff's salary of $60,000 was $5,000 to $10,000 more than
the salary offered to Colleen Willcom, a Caucasian female who began
employment with Starz as a District Manager shortly after plaintiff.
Id. at ¶ 7.
Although Sartino has hired other African-Americans during her time at
Starz, plaintiff was the first African-American hired by Sartino for a
management position. Sartino Dep. at 221-22. Feller has personally
participated in hiring at least two other African-Americans, both male,
for the positions of trainer and District Manager. Feller Dep. at 33-35.
As District Manager, plaintiff was part of the AT&T system. McCoy
Dep. at 17. This system had two directors, each responsible for one
portion of the country, and several district managers working for each
director. Id. McCoy reported to Tracey Sartino, her director,
who in turn reported to Robin Feller, a regional vice president.
Id. at 17-18. As a district manager, plaintiff was responsible
for product knowledge training within the AT&T cable system, for
implementation of both national and regional movie-based incentives, for
marketing tactics used to grow Starz's subscriber base, and for
creating effective telemarketing systems. Id. at 9-15.
During Plaintiff's employment at Starz, she experienced general
unfriendliness in the workplace, several incidents of perceived
hostility, and a lack of training and support from her supervisors.*fn2
On July 27, 2000, Sartino met with plaintiff to discuss an "Action
Plan" that she had prepared one day earlier. Pl's Statement at ¶ 10.
The 90-day Action Plan, prepared by Sartino due to her perception that
McCoy was not performing at the expected level,*fn3 set forth several
performance objectives for plaintiff, outlined Sartino's expectations,
and established 30, 60, and 90-day deadlines for the completion of each
task. See Def.'s Mot. Summ. J at Ex. D ("Action Plan"). The six
objectives set forth for McCoy by the Action Plan included the following:
increase knowledge of territory; develop and implement marketing plans
for Boston and Pittsburgh; increase sales and product knowledge;
understand the budget; hire two trainers in the
Philadelphia office by September 2000; improve organizational skills.
Id.*fn4 Plaintiff met some of the objectives before the
deadlines, and failed to meet others. Pl.'s Statement at ¶ 11.
On September 28, 2000, plaintiff received a Corrective Discipline
Memorandum which detailed several "performance or behavioral problems,"
defendant's expectations, proposed solutions, and consequences should
Plaintiff's performance or behavior not improve to the expected level.
See Def.'s Mot. Summ. J at Ex. E ("CDM").*fn5
Following the expiration of the 90-day portion of plaintiff's Action
Plan, Sartino and Feller met to discuss Plaintiff's job performance,
determined that she should be terminated, and terminated plaintiff on
November 15, 2000. Def.'s Statement of Uncontested Facts in Support of
Mot. Summ. J. at ¶ 13-17; Pl.'s Statement at ¶ 13-17. Prior to
Plaintiff's termination, Feller had participated in two corrective
discipline actions, one with a minority female who was ultimately
terminated and one with a Caucasian male who was not terminated. Feller
Dep. at 82-84. Sartino had never taken part in a corrective action prior
to issuing the CDM to plaintiff, nor had she been involved in terminating
an employee. Sartino Dep. at 158.
On August 30, 2001, McCoy contacted the Equal Employment Opportunity
Commission, alleging that Starz had discriminated against her by
terminating her employment. McCoy Dep. at 200; see also Ltr.
from McCoy to Daniel McGuire, Aug. 30, 2001 (attached to McCoy Dep. as
Ex. 1). The EEOC then issued a "right to sue" notice to plaintiff on
April 25, 2002. See Compl.
Ex. A. Plaintiff then filed this action, and presently before the court
is defendant's motion for summary judgment.
II. Legal Standards
Summary judgment is proper "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."
Fed.R.Civ.P. 56(c). This court may not resolve disputed factual issues, but
rather should determine whether there are genuine, material factual
issues that require a trial. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). Where "the record taken as a
whole could not lead a rational trier of fact to find for the non-moving
party," however, there is "no genuine issue for trial." Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (quotations omitted). In order to determine whether summary
judgment is appropriate in this particular case, all of the facts
delineated above are stated in the light most favorable to the plaintiff
as the non-moving party. See Saldana v. Kmart Corp.,
260 F.3d 228, 232 (3d Cir. 2001). While this court will draw all reasonable
inferences in Plaintiff's favor, however, plaintiff must do more than
rest upon mere allegations, general denials, or vague statements.
Trap Rock Indus., Inc. v. Local 825, 982 F.2d 884, 890 (3d Cir.
1992). Rather, plaintiff "must present affirmative evidence" in order to
defeat a motion for summary judgment." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 257 (1986).*fn6
Title VII prohibits an employer from discrimination against any
individual on the basis of "race, color, religion, sex, or national
origin." 42 U.S.C. § 2000e-2(a). To prevail on a Title VII claim,
McCoy must present circumstantial evidence of discrimination using the
familiar burden-shifting analysis of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).*fn7 Pursuant to McDonnell
Douglas, a plaintiff must first provide evidence to support a prima
facie case of discrimination by a preponderance of the evidence. See
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). If
plaintiff succeeds in establishing a prima facie case, defendant then
must "articulate some legitimate, nondiscriminatory reason for the
employee's [termination]." McDonnell Douglas, 411 U.S. at 802.
If defendant does so, the burden shifts back to plaintiff to show that
the reasons proffered by defendant were not its true reasons, but rather
a pretext for discrimination. Id. at 804.
A. McCoy's Prima Facie Case
The existence of a prima facie case of race-based employment
discrimination "is a question of law that must be decided by the Court."
Sarullo v. United States Postal Service,
352 F.3d 789, 797 (3d Cir. 2003). In order to make out a prima
facie case of racial discrimination, McCoy must satisfy a four-prong
test: she must establish that (1) she is a member of a protected class,
(2) that she was qualified for her position, (3) that she was subjected
to an adverse employment action despite being qualified, and (4) that
Starz continued to seek out individuals with qualifications similar to
hers to fill the position "under circumstances that raise an inference of
discriminatory action." Id.; see also Hampton v. Borough of Tinton
Falls Police Dept., 98 F.3d 107, 112 (3d Cir. 1996) (describing the
fourth prong as requiring that plaintiff establish that her termination
occurred under circumstances giving rise "to an inference of unlawful
discrimination") (quoting Tex. Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981)); see also Geraci v.
Moody-Tottrup, Intern., Inc., 82 F.3d 578, 580-81 (3d Cir. 1996)
(quoting same); Waldron v. SL Indus., 56 F.3d 491, 494 (3d Cir.
1995) (quoting same).*fn8 The elements of a prima facie case
must be established by a preponderance of the evidence. See St.
Mary's, 509 U.S. at 506.
The parties do not dispute that plaintiff is a member of a protected
class, nor do they dispute that she was terminated from her position at
Starz. Whether or not McCoy has made out a prima facie case, therefore,
turns upon the second and fourth prongs of the prima facie test: whether
she was qualified for the position, and whether the circumstances
termination give rise to an inference of discrimination.*fn9
(1) Job Qualification
McCoy must establish that she was qualified for her position. After
almost seven months on the job, plaintiff was given a "90-Day Action
Plan" by Tracey Sartino, a Starz Director and Plaintiff's direct
supervisor. See Action Plan; see also Def.'s Statement
of Uncontested Facts in Supp. of Mot. Summ. J. at ¶ 10 (attached to
Def.'s Mot. Summ. J. as Ex. A); Pl.'s Answer to Def.'s Statement of
Uncontested Facts at ¶ 10.*fn10 The Action Plan set forth six
improvement objectives for plaintiff, as well as deadlines by which she
was expected to have completed them. See Action Plan at 1-2.
Plaintiff admits that she did not meet each and every goal set forth in
the Action Plan. See Def.'s Statement of Uncontested Facts in
Supp. of Mot. Summ. J. at ¶ 11 (attached to Def.'s Mot. Summ. J. as
Ex. A); Pl.'s Answer to Def.'s Statement of Uncontested Facts at ¶
Two months later, plaintiff was given a Corrective Discipline
Memorandum setting forth Plaintiff's performance and behavioral problems,
as perceived by Sartino, Starz's expectations and proposed solutions to
Plaintiff's problems, and consequences should Plaintiff's behavior and
performance not improve to the expected level. See CDM. While
plaintiff disputes the truth of certain portions of the CDM, she admits
that she had difficulty understanding "SEG products and sales
strategies," the "Effective License Fee model," and "Profitability
Analysis," as stated in the CDM's fourth bullet point. Id.; see
also McCoy Dep. at 256.
Following the expiration of the 90-day Action Plan, Plaintiff's
supervisors met to discuss her job performance. See Def.'s
Statement of Uncontested Facts in Supp. of Mot. Summ. J. at ¶ 13
(attached to Def.'s Mot. Summ. J. as Ex. A); Pl.'s Answer to Def.'s
Statement of Uncontested Facts at ¶ 13. In light of her failure to
satisfy fully the expectations set forth in the Action Plan and CDM,
director Tracey Sartino and Vice President Robin Feller decided to
terminate plaintiff because "she was not meeting the job requirements
that were needed for the position." Sartino Dep. p. 156, 11.22-23.
When evaluating whether a plaintiff is "qualified" for the purposes of
a prima facie case, courts must rely upon "objective" factors.
See Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir.
1995) (citing Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir.
1990)). Subjective qualities, conversely, such as "leadership or
management skill," are "better left to the later stage of the
McDonnell Douglas analysis." Weldon, 896 F.2d at 798.
In Weldon, the Third Circuit considered whether a plaintiff
discrimination against his former employer had been "qualified for
his position," as required to establish a prima facie case.
Id. The plaintiff in Weldon had received negative
performance evaluations; however, these evaluations relied mainly upon
subjective criteria and thus did not necessarily establish that plaintiff
[His supervisor] found that [plaintiff] lacked `a
sense of priorities,' the `desire to increase
knowledge of company policies and procedures,' and
that he failed to put forth a `concerted effort'
to broaden his skills. [Another supervisor]
indicated that [plaintiff] had difficulty
understanding and preparing the reports that were
required of him, that he lacked initiative, and
that he avoided active involvement in the
day-to-day operations of the department. On the
other hand, [the supervisor's] evaluation that
[plaintiff] failed to meet performance goals in
the areas of productivity, output, and efficiency
is based on objective criteria. In this instance,
however, it is unclear whether the goals
constituted a standard of performance expected of
all assistant supervisors or instead represented a
subjective determination by [the supervisor] of
the performance level [plaintiff] had to achieve
to be deemed a satisfactory assistant supervisor
in that department. . . . We certainly do not
question [defendant's] prerogative to set any
standards it wishes for employee performance nor
do we seek to substitute our view of what
constitutes adequate performance. We simply
decline to treat these subjective assessments as
evidence that [plaintiff] has failed to establish
a prima facie case, thereby collapsing
the entire analysis into a single initial step at
which all issues are resolved. Rather, we will
consider the assessments in the context of
[plaintiff's] charge that the poor evaluations he
received were a pretext for racial discrimination
and unworthy of credence.
Id. at 799 (citations omitted).
In this case, Plaintiff's negative performance evaluations rely upon
both objective and subject factors, thus complicating this court's
ability to determine whether or not plaintiff was "qualified" for her
position. The sole evidence that plaintiff offers in support of her
contention that she was in fact "qualified," however, is the unhelpful
contention that the fact that McCoy was hired in the first place
establishes that she was a qualified candidate. See Pl.'s Memo.
Opposing Def.'s Mot. Summ. J. at 6. Defendant obviously believed that
plaintiff had the requisite qualifications when she was hired, otherwise
it would not have hired her. Were this the standard used to determine an
employee's qualifications, however, no employee could ever
become unqualified, because any employee no matter how
deficient her performance could argue that because she was hired,
she must be qualified. This argument is not persuasive. Plaintiff would
be better served to have put forth evidence of her high-quality
performance on the job, individual successes, testimony from co-workers
as to her qualifications, etc. She provides nothing of the sort, however,
offering instead three short sentences explaining that she was initially
hired because Tracey Sartino and Robin Feller believed she met the job
Nonetheless, I am mindful of the Third Circuit's emphasis that negative
performance evaluations are often subjective and, therefore, will not
always serve to establish that a plaintiff is unqualified. See, e.g.,
Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 330 (3d Cir.
1995) (finding a former employee to have been "qualified," based on
objective factors, where he had twenty-three years of experience and an
overall rating of "competent"); Sempier, 45 F.3d at 729 (relying
upon objective factors only Plaintiff's twenty years of
experience and the official positions held during that time to
conclude that plaintiff was "qualified"). Despite the fact that plaintiff
has made no showing of her qualification, I will assume for the
purposes of her prima facie case that she was qualified
for the job because some of her negative performance evaluations were
based on subjective factors. But see Volk v. Pribonic, No.
94-2165, 1994 WL 230103 (W.D. Pa. Jan. 16, 1994) (finding that an
employment discrimination plaintiff was not qualified where his brief did
not address his qualification and he failed to present any evidence to
establish that he was qualified for his position).
(2) An Inference of Discrimination
Under the fourth prong, in order to present a prima facie case
plaintiff must establish that
defendant's actions while filling the position left vacant
by McCoy's termination raise an inference of discrimination.
"Common circumstances giving rise to an inference of unlawful
discrimination include the hiring of someone not in the protected class
as a replacement or the more favorable treatment of similarly situated
colleagues outside of the relevant class." Bullock v. Children's
Hosp. of Phila., 71 F. Supp.2d 482, 487 (E.D. Pa. 1999). "Although
a plaintiff may make out a prima facie case with such evidence, . . .
neither of these is required." Id. (emphasis in original)
(citing Pivirotto, 191 F.3d at 356-57). Indeed, in
Pivirotto the Third Circuit made clear that the showing required
to satisfy the fourth element of a plaintiff's prima facie case
will vary depending upon the circumstances. Pivirotto, 191 F.3d
at 357 ("we have repeatedly emphasized that the requirements of the prima
facie case are flexible, and in particular that `the fourth element must
be relaxed in certain circumstances'") (quoting Torre v. Casio,
Inc., 42 F.3d 825, 831 (3d Cir. 1994)). Illustrating this point, the
Pivirotto court noted that the fourth prong of a plaintiff's prima facie
case could be satisfied in many different ways: a discharged
age-discrimination plaintiff could meet his prima facie burden
by presenting evidence that a younger employee assumed his
responsibilities despite his employer's earlier decision not to replace
him; a plaintiff could make out a prima facie case "even without
demonstrating that employees outside of the relevant class were treated
more favorably;" or a plaintiff could meet her prima facie
burden by demonstrating any circumstances that would give rise to an
inference of unlawful discrimination. Pivirotto, 191 F.3d at 357
This court's analysis of whether or not an inference of discriminatory
animus has been raised by an employer's actions is governed by the
"central focus" of the prima facie case that
is, whether defendant treated plaintiff less favorably than other
employees because of her race. See Sarulllo, 352 F.3d at 798
(citing Pivirotto, 191 F.3d at 352). In Sarullo the
plaintiff, a Native American, brought an action against his former
employer, the U.S. Postal Service, alleging discrimination on the basis
of national origin and age. Plaintiff had been arrested for dealing drugs
in the workplace, terminated from his position, indicted, tried, and
finally released after the jury could not reach a unanimous verdict.
Id. at 792-93. Following dismissal of the criminal charges,
plaintiff sought reinstatement to his position with the United States
Postal Service. Id. at 793. Plaintiff's request was denied by
William Brown, a district manager, pursuant to the USPS policy
prohibiting the rehiring of employees previously terminated for cause.
Id. Brown was unaware that plaintiff was Native American and had
no knowledge of plaintiff's age. Id. Nevertheless, plaintiff
brought an action against the Postal Service under Title VII and the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 626 et
seq. ("ADEA"), alleging discrimination.
Concluding that Sarullo could "not establish that USPS's failure to
rehire him raised an inference of discriminatory animus," the Third
Circuit noted as follows:
Sarullo's evidence of race discrimination consists
solely of his own assertion that he was not
rehired because he is Native American. He attempts
to support that allegation using his own
deposition and affidavits suggesting that most of
his coworkers and supervisors knew that he was
Native American and some of them called him
derogatory nicknames referencing his Native
American heritage. However, he has not claimed
that employees who are not Native American have
been rehired after having criminal charges
dismissed. Although he need not establish that
precise kind of disparate treatment to establish a
claim of discrimination, he must establish some
causal nexus between his membership in a protected
class and the decision to not rehire him.
Id. at 798.
Similarly, in Bullock v. Children's Hospital of Philadelphia,
plaintiff brought a Title VII action against her former employer,
alleging race discrimination. 71 F. Supp.2d 482 (E.D. Pa. 1999). Like
McCoy, the plaintiff in Bullock was terminated after receiving
several opportunities to improve her professional performance. Bullock,
employed by defendant as a secretary, did not meet defendant's
expectations in several performance categories and received a
below-average performance rating for 1996. Id. at 483-84. She
was also given an oral warning, a 60-day Personal Improvement Plan
("PIP"), and a 30-day grace period during which to secure employment
elsewhere. Id. at 484. Like McCoy's Action Plan, the PIP set
forth specific areas in which Bullock was expected to improve.
Id. When at the conclusion of the PIP period
Bullock had failed to perform satisfactorily, she was fired. Id.
Following her termination, Bullock's position was filled by an
African-American female. Id.
Noting that "race discrimination claims require that the Court consider
the unique nature of the circumstances and evidence presented to
determine whether there is sufficient evidence to support an inference of
discrimination," the court held that plaintiff failed to establish the
fourth element of her prima facie case of discrimination:
Bullock testified that she believed that [her
supervisor] discriminated against her because of
her race because she could not figure out any
other reason that he would have criticized her job
performance. To make out a prima facie case of
discrimination requires more than such
speculation. Bullock's disagreement with [her
supervisor's] assessment of her job performance is
not sufficient to raise a presumption of
discrimination. Furthermore, Bullock's assertion
that the performance deficiencies noted by [her
supervisor] were due to the fact that the other
secretary, Eldora Hatton (who is also
African-American), was having performance problems
is not evidence that [his] criticisms were
motivated by racial animus. Although Bullock feels
that her termination was unfair and is at a loss
to explain why [her supervisor] faulted her
performance, Bullock has failed to establish by a
preponderance of the evidence the existence of a
prima facie case of discrimination.
Id. at 490-91. Like the Third Circuit, the Bullock
court emphasized that a plaintiff's own assertion of racial animus does
not give rise to an inference of unlawful discrimination. Where a
plaintiff relies upon his own beliefs and testimony as to his own
beliefs from his deposition and fails to present any factual
evidence linking his termination to his membership in a protected class
he has failed to make out a prima facie case of
Like the plaintiffs in Sarullo and Bullock, McCoy has
introduced no evidence other than her unsupported personal
beliefs demonstrating that the circumstances surrounding her
termination give rise to an inference of discrimination. During her
deposition, plaintiff testified concerning several instances of what she
perceived to be "hostility" and mistreatment by her supervisors Tracey
Sartino and Robin Feller.
Viewing the evidence in the light most favorable to plaintiff, her
tenure at Starz included the following incidents: Robin Feller stated to
plaintiff, "in the most hostile way [one] can possibly imagine," that
plaintiff "cannot do this job;"*fn12 to a prospective applicant, Feller
asked "could you work for someone like Katrina? Take a look at her. Could
you work for her?";*fn13 following a meeting with a client in Boston,
Feller said to plaintiff "See, he didn't say anything about you; he said
something about Tracey; he didn't say a nice comment about you;"*fn14
referring to plaintiff, Feller stated to Tracey Sartino in
plaintiff's presence "I bet she does not even know how to take
notes or remember what happened at the meeting; let's see what she can
do;"*fn15 Sartino "didn't want [plaintiff] sitting next to her" at
meals;*fn16 Sartino "showed pictures of her
wedding to everybody and skipped over [plaintiff] and showed
everybody else;"*fn17 every time plaintiff attempted to utilize
additional corporate resources, Sartino "would call [plaintiff] up
screaming, hollering at [her] on the telephone, reprimanding [her],
treating [her] very hostile and cruel every time [she] made efforts to
utilize resources;"*fn18 Sartino was "agitated" and "angry" during a
business trip with plaintiff;*fn19 at regional meetings the white female
district managers "always clicked together and went together as a group"
and plaintiff "was the only one that was not included."*fn20
Even if each of these incidents occurred exactly as described by
plaintiff, plaintiff has presented no evidence to suggest that racial
bias was the motivating factor behind her supervisors' comments. While
plaintiff labels this work environment as racially
discriminatory, she provides no documentary or testimonial evidence
linking racial bias to her supervisors' actions. Plaintiff may have felt
excluded by her coworkers or unsupported by her managers; social
unpleasantries, however, cannot give rise to an inference of unlawful
discrimination where not one single race-based comment is alleged and
there is no logical inference that the comments made were, in fact,
Where plaintiff does specifically mention race, she notes only that
she perceived the unfriendly treatment to have been racially
motivated. For example, plaintiff asserts that defendant's decision not
to hire Todd Goldman as a trainer in the Philadelphia office was a
racially-motivated attempt to sabotage plaintiff's career:
Q. Do you believe they were racially motivated
when they decided not to hire Todd?
A. I absolutely believe that all of my experiences
with Starz Encore was racially motivated, and
specifically with Todd Goldman. Yes, I do. [sic].
Q. What made you believe that the situation with
Todd Goldman was racially motivated?
A. Because of the culture of the company. They did
not want me there. I felt like because of my race
and my color, they wanted me gone, and they felt
that if I if they put all the burden of
doing all the work on me, that I would disappear.
Q. Is there anything specific that you can point
to that makes you think the decision not to hire
Todd Goldman was racial?
A. The mere fact that it was not justified for
them not to hire him. The only purpose for them
not hiring Todd Goldman is so that I can continue
having a tremendous amount of work load, more than
my white female counterparts, and it was extremely
difficult to continue to take on that burden.
Q. How do you know that was the only reason?
A. How do I know that was the only reason, it was
the only reason. It's the culture of the company.
Q. Is there anything specifically that you can
point to that makes you think that Robin or Tracey
were motivated by your race when they made the
decision not to hire Todd?
A. Just the hostility, the continual hostility
that I experienced, the combative-like
McCoy Dep. at 102, 1.24-105, 1.7. Defendant's counsel offered plaintiff
multiple opportunities to present evidence in the form of
comments by coworkers, remarks made by supervisors, etc. that
defendant's employment decision with respect to applicant Todd Goldman
was racially motivated. Instead, plaintiff offered only her own
perceptions concerning the abstract "culture of the company." Similarly,
when asked why she was skipped over when Tracey Sartino's wedding
pictures were being passed around, plaintiff answered that "[t]hey were
Tracey's pictures. I believe that it was the culture of the company that
the company typically does not do well with black females. It's a culture
thing." McCoy Dep. at 184, 11.18-21. Plaintiff has presented no evidence
of this alleged "culture." Such conclusory allegations which are
wholly subjective cannot establish racial discrimination.*fn21
Plaintiff also argues that because her position was filled by a white
female, her termination gives rise to an inference of discrimination.
When plaintiff was hired, she took over certain accounts from Mary
O'Connor, a white female, who although she stayed with Starz-took
on new responsibilities as a result of internal reorganization at Starz.
McCoy Dep. at 67-70; see also Sartino Dep. at 39. Following
plaintiff's termination in November, 2000 and defendant's subsequent need
to fill the position, Mary O'Connor resumed the responsibilities of
Philadelphia District Manager. Sartino Dep. at 143, 11.5-15.
Evidence that a position left vacant by the termination of a minority
employee was then filled by a non-minority candidate can raise an
inference of discrimination. As the Third Circuit made clear in
Pivirotto, however, this showing is neither stringently required
nor independently sufficient. See 191 F.3d at 357. In this case,
it is entirely logical and consistent with lawful employment practices
for defendant to have turned to Mary O'Connor to assume plaintiff's
responsibilities. O'Connor was familiar with both the Boston and New York
accounts and was already working out of the Philadelphia office.
Furthermore, it was O'Connor who had trained plaintiff in the first
place,*fn22 thus eliminating any need for additional training. And
defendant did not hold plaintiff's position open, actively seek
applicants, and hire a white female. See St. Mary's, 509 U.S. at
506 (fourth element of prima facie case established where "the
position remained open and was ultimately filled by a white man").
Rather, defendant turned to the very same employee who had previously
held responsibility for these tasks. It seems clear to this court that
O'Connor was not asked to take over plaintiff's duties due to O'Connor's
race, but, rather, because of her qualifications and experience.
Defendant's decision to fill the vacancy left by plaintiff by assigning
her responsibilities to O'Connor cannot, therefore, give rise to an
inference of discrimination.*fn23
Plaintiff has therefore failed to establish a. prima facie
case of discrimination. She cannot show that she was terminated in a
manner giving rise to an inference of discrimination. Accordingly, her
claim must fail and summary judgment will be granted for the defendant.
Even if plaintiff had established a. prima facie case of
discrimination, however,*fn24 defendant has articulated a legitimate and
non-discriminatory reason for plaintiff's termination: deficient
performance. As discussed above, see supra § III.A.1, it is
undisputed that plaintiff
failed to meet at least some performance expectations. See Rose
v. Woolworth Corp., 137 F. Supp.2d 604, 608 (E.D. Pa. 2001)
(assuming, without deciding, that an employer's termination of an
employee for repeated performance failures is "legitimate" and
"non-discriminatory"); Gutman v. TICO Ins. Co., 1998 WL 306502,
*4 (E.D. Pa. June 9, 1998) (holding that plaintiff's "unusually poor
performance" provided defendant with a "legitimate, non-discriminatory
reason for the termination). Accordingly, pursuant to the third step in
the McDonnell Douglas burden-shifting scheme, the burden then
returns to plaintiff to prove that this reason is pretextual.
McDonnell Douglas, 411 U.S. at 804 (once defendant has
articulated a legitimate, non-discriminatory reason for termination, the
plaintiff must then come forward with evidence that defendant's stated
reason is a pretext for discrimination).
In order to survive summary judgment at this stage, plaintiff may meet
her burden of establishing pretext in one of two ways. She must point "to
some evidence, direct or circumstantial, from which a factfinder could
reasonably either: (1) disbelieve the employer's articulated legitimate
reasons; or (2) believe that an invidious discriminatory reason was more
likely than not a motivating or determinative cause of the employer's
action" [hereinafter "the Fuentes test"]. Jones v. Sch.
Dist. of Phila., 198 F.3d 403, 413 (3d Cir. 1999) (quoting
Fuentes v. Perslde, 32 F.3d 759, 764 (3d Cir. 1994) and
Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061,
1067 (3d Cir. 1996) (en banc)).
To establish pretext under the first approach, the plaintiff "must
demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's proffered legitimate
reasons for its actions that a reasonable factfinder could rationally
find them unworthy of credence." Id. (citing Keller v. Orix Credit
Alliance, Inc., 130 F.3d 1101, 1108-09
(3d Cir. 1997) (en banc)). It is insufficient to show simply that
defendant's employment decision was wrong or mistaken, "since the factual
dispute at issue is whether discriminatory animus motivated the employer,
not whether the employer is wise, shrewd, prudent or competent."
Id. Plaintiff may, however, establish pretext by introducing
evidence that an employer's proffered reason was "not merely wrong, but
that it was `so plainly wrong that it cannot have been the employer's
real reason." Id. (citing Keller, 130 F.3d at 1109).
Pursuant to the second approach to proving pretext under the
Fuentes test, a plaintiff may prove pretext by showing that
discrimination was "more likely than not" the motivation behind
defendant's actions. See id. at 413. In addition to such direct
evidence, the Third Circuit has held that a plaintiff may, by way of
indirect evidence, "show that the employer has previously discriminated
against [the plaintiff], that the employer has previously discriminated
against other persons within the plaintiff's protected class, or that the
employer has treated more favorably similarly situated persons not within
the protected class." Id. (citing Simpson v. Kay Jewelers,
Inc., 142 F.3d 639, 645 (3d Cir. 1998)).
(1) The Keller Case
In Keller, plaintiff was terminated for failure to meet
performance goals. Keller, 130 F.3d at 1107. As executive vice
president, chief financial officer, and chief credit officer of defendant
company Orix Credit Alliance, Keller was responsible for obtaining $1.5
billion in credit facilities beginning in 1989. Id. at 1103-04.
Despite his thirteen years of experience with Orix, however, Keller
failed to secure any increase in bank lines, did not come close to
meeting the financing goal, and failed to pursue raising funds by
asset-backed securitization, as suggested by his directors. Id.
at 1104. Orix relieved Keller of his responsibilities as chief credit
that he could focus on funding, he was reminded continually by
Orix's senior officers and directors of the importance of raising funds,
and yet by the autumn of 1992 defendant's total available
bank lines had dropped. Id. at 1104-05. Keller was terminated in
April, 1993, and within one year his replacement who is
approximately five years younger than Keller had raised well over
$1.5 billion in new credit facilities. Id. at 1106-07. Following
his termination, Keller brought an action against Orix alleging age
discrimination. An en banc panel of the Third Circuit, reviewing the
district court's grant of summary judgment, considered at length whether
Keller had established pretext as required by McDonnell Douglas.
Assuming arguendo that steps one and two of the McDonnell
Douglas scheme had been satisfied, the panel evaluated Keller's
attempt to show pretext under the two-part Fuentes test.
Id. at 1108. In an attempt to demonstrate that Orix did not have
a legitimate reason for terminating him, under the first prong of
Fuentes, Keller argued that his inability to meet the funding
goals was "due to factors beyond his control." Id. at
1109.*fn25 The panel noted, however, that Keller's evidence tending to
show that his performance was hampered by external factors amounts to
little more than a claim that he "did as well as he could" under the
circumstances. Id. The relevant question, however, was "not
whether Keller could [or could not] have done better; instead, the
relevant question is whether the evidence shows that it was so clear that
not have done better that Orix Credit Alliance could not have
believed otherwise." Id. Noting that defendant went on to obtain
substantial amounts of funding through the very channels that Keller had
failed to pursue in addition to the fact that Keller's
replacement met the $1.5 billion goal within two years the Third
Circuit held that "Keller has not shown that it was so plain that he
could not have done substantially better under the circumstances that
Orix Credit Alliance could not have truly believed otherwise."
Id. at 1110.*fn26
Under the second prong of the Fuentes test, Keller offered
evidence intended to demonstrate that discrimination was more likely than
not a determinative cause of his termination. This evidence consisted
primarily of a comment made to Keller, by Orix president Daniel Ryan,
that if Keller was "getting too old for the job, maybe [he] should hire
one or two young bankers." Id. at 1111. Despite the fact that
these "alleged words certainly constitute evidence from which a
reasonable factfinder could draw an inference of age-based animus," the
Third Circuit held that this comment alone could not "reasonably be
viewed as sufficient to prove by a preponderance of the evidence that age
was a determinative cause of Keller's subsequent termination."
Id. at 1112.*fn27 Moreover, the panel emphasized that Orix had
a "powerful, legitimate reason for discharging Keller." Id. at
1113. Noting that Keller was replaced by a man
fewer than five years his junior, that Keller had failed to "meet
or even approach the critical $1.5 billion goal," and that a reasonable
factfinder could have concluded that Orix "was more likely to be
concerned about Keller's [business] failure" than about replacing him
with a slightly younger man, the panel held that Keller did not introduce
evidence sufficient to allow a reasonable factfinder to conclude, by a
preponderance of the evidence, that age was a determinative factor in his
(2) Plaintiff's Case
It is obvious from the record in this case that plaintiff has failed to
establish pretext via either of the methods set forth in the
Fuentes test. She admits to her own deficient performance in
certain areas, thus undermining any argument that defendant's decision to
terminate her was "so plainly wrong that it cannot have been [its] real
reason." At most, plaintiff disputes the bases for her Action Plan, CDM,
and ultimate termination, contending that she could not have reasonably
accomplished these objectives without additional support from Starz. More
specifically, plaintiff believes that it was "humanly impossible" for her
to have completed the goals set forth in the Action Plan because she was
"working alone." McCoy Dep. at 247; see also id. at 256-57
("Yes, I did [work hard], but I'm only one person, and I could not
realistically it's inhuman to try and achieve those along with my
other responsibilities without any support"). This line of reasoning,
however, is insufficient to defeat summary judgment.
Furthermore, plaintiff's attempts to satisfy the second prong of
Fuentes by presenting evidence that she was treated hosfilely
cannot permit a reasonable factfinder to conclude by a
preponderance of the evidence that race was a determinative
factor in plaintiff's termination.
a.) The First Prong of Fuentes
Like Keller, McCoy has attempted to satisfy the first prong of the
Fuentes test by demonstrating that despite her deficient
performance, such deficiency was not her fault. In essence, she claims
that she could not have performed any better due to the lack of support
provided to her at Starz. As the Third Circuit panel in Keller
made clear, however, whether or not McCoy "could have done better" has
little to do with this court's inquiry; rather, "the relevant question is
whether the evidence shows that it was so clear that Keller could not
have done better that Orix Credit Alliance could not have believed
otherwise." Id. at 1109. Despite the fact that plaintiff had
fewer support staff*fn28 and less training,*fn29 she nevertheless
failed to complete the goals set for her by her supervisors. While
defendant takes issue with defendant's basis for her Action Plan, CDM,
and ultimate termination, her argument rests on the assertion that she
could not have performed any better under the circumstances. According to
the Third Circuit in Keller,
however, this line of reasoning is insufficient to establish
pretext. Even if plaintiff's performance deficiencies were fully
attributable to circumstances beyond her control, the fact remains that
she did not respond successfully to either of the two attempts made by
her employer to set objectives for her, point out her weak spots, and
encourage her to make progress in the right direction. Defendant's
decision to terminate her, therefore, cannot be said to be "so plainly
wrong that it cannot have been the employer's real reason," as required
to establish pretext.*fn30 Keller, 130 F.3d at 1109.
b.) The Second Prong of Fuentes
Under the second prong of the Fuentes test, plaintiff may
establish pretext through evidence that race-based discrimination was
"more likely than not" the motivating factor behind defendant's decision
to terminate her. Id. at 1111. In order to satisfy her burden of
McCoy "must point to evidence that proves [race] discrimination in the
same way that critical facts are generally proved based solely on
the natural probative force of the evidence." Id. Alternatively,
she may rely upon indirect evidence. After a thorough consideration of
all the evidence cited by plaintiff, this court can find nothing that
would enable a reasonable factfinder to find that racial discrimination
was a motivating cause of her termination.
(i) Direct Evidence of Pretext
Where Keller pointed to a specifically age-related comment, which
notably was nonetheless insufficient to establish
pretext, McCoy can point to nothing of the sort. In her opposition brief,
she argues as follows:
As early as January, 2000, Plaintiff believes
Defendant showed its racial animus when Plaintiff
was scheduled to go to Boston with Sartino to meet
the client, and Sartino failed to show up. McCoy
did not have a rental car and was expected to take
the client to lunch. Sartino failed to even call
McCoy. McCoy called Sartino who never provided a
reason for her failure to show. Sartino did not
provide an apology to McCoy nor an explanation.
Rather than cancel the meeting, Sartino left McCoy
to handle it herself . . . Boston is a key account
for Starz. McCoy had no information with her;
Sartino had it.
Pl.'s Memo. Opposing Def.'s Mot. Summ. J. at 14-15 (citations omitted).
Despite plaintiff's contention that the January 2000 incident constituted
evidence of racial animus, her account of the meeting includes not one
reference to race. Not only does this narrative contain no reference to
race and no probative force with respect to whether or not racial
discrimination motivated defendant's decision to terminate plaintiff, it
does not even raise an inference of discrimination. This is simply not
the type of probative evidence that can establish discrimination, let
alone with the conclusiveness required to undermine defendant's proffered
Similarly, plaintiff argues with respect to defendant's
decision not to hire Todd
Goldman as plaintiff's trainer that "[p]laintiff believes
this decision by her management team to not hire Goldman was racially
motivated inasmuch as she was drowning in work, and doing more work than
her white counterparts." Id. at 12. Other than plaintiff's
mention of race, however, there is no evidence that defendant's
decision-making process concerning the hiring of trainers and support
staff had anything to do with plaintiff's race.*fn31
Plaintiff follows up these narratives with similar accounts of
perceived hostility in the workplace. See id. at 15. Not one of
these arguments, however, includes anything but plaintiff'3s
uncorroborated assertions that race was a factor in her termination. If
true that is, even if her co-workers were unfriendly, her
supervisors unsupportive, and her training incomplete this
evidence establishes nothing with respect to race. To establish that an
employer's adverse employment decision was likely motivated by race
requires some affirmative evidence, of which plaintiff offers none.
Instead, she offers her own unsupported and vague assertions about the
"culture of the company," which this court finds unpersuasive. Again,
even accepting as true for purposes of this motion that plaintiff
perceived an anti-black culture to be prevalent at Starz, plaintiff's
perceptions, without more, cannot establish that race was the motivating
factor behind her termination. See Billet v. CIGNA Corp.,
940 F.2d 812, 816 (3d Cir. 1991) overruled in part
on other grounds by St. Mary's, 509 U.S. at 503 (holding
that plaintiff's unsupported allegation that defendant's employment
decision was motivation by discrimination "does not make it so").
Moreover, this court is mindful of the fact that defendant, like the
defendant in Keller, had a legitimate reason for terminating
plaintiff's employment. A reasonable factfinder would be unable,
therefore, to find that race of which there is no evidence
rather than deficient performance of which there is
substantial evidence motivated defendant's decision.
(ii) Circumstantial Evidence of Pretext
Furthermore, plaintiff has not shown through indirect evidence
that she was discriminated against by defendant on previous
occasions, that other African-American females were discriminated
against, or that similarly-situated Starz employees not within
the protected class were treated more favorably. See Jones, 198
F.3d at 413 (citing Simpson, 142 F.3d at 645). Although
plaintiff alleges that she was mistreated prior to her termination, her
evidence in support of this contention that her supervisors were
cruel and hostile is unavailing to show pretext for the same
reasons that such evidence does not give rise to an inference of
discrimination. See supra § III.A.2.
Nor can plaintiff show that defendant discriminated against other
African-American females. Despite her testimony that Starz "typically
does not do well with black females. It's a culture thing," plaintiff
offers no evidence that any African-American female was terminated,
demoted, or otherwise mistreated because of race. With respect to Susan
Lewis, an African-American Regional Vice-President who plaintiff alleges
was terminated, plaintiff can provide no facts in support of her claim
regarding Starz's "culture":
Q. If [Susan Lewis] was terminated, do you know
A. Because of her race. I would say that Susan was
terminated because of her race.
Q. Do you have any firsthand knowledge of the
circumstances of her leaving the company?
A. I don't have any-1 was not employed at the
company upon Susan Lewis's termination. I believe
Susan Lewis was terminated one or two months after
Q. How do you know that?
A. That's one of the things that I was told.
Q. Has anyone ever told you the circumstances of
her leaving, specifically?
Q. Do you know of any problems that she had at the
time she left, problems with the company or that
the company had with her?
Q. In fact, while you were there, Susan was a
director in the Philadelphia office and then was
promoted to vice president?
A. That's correct.
Q. Why do you think they would promote her to an
officer position if they were biased against her
because of her race?
A. . . . I think out of desperation of needing to
fill the position . . .
Q. Yes. I'm wondering why you think they were
desperate to fill the position, so desperate that
they promoted an African-American?
A. She was the director. She worked directly with
Miles McNamee. I believe that it would be a racial
decision not to promote her, if they did not
promote her to that position.
Q. But they did, right?
A. And they terminated her, as well. She was there
for a short period of time, which is the culture
of the company to keep blacks in the company for a
short period of time and then terminate them. So
they were consistent.
McCoy Dep. at 110, 1.15-113, 1.6. Plaintiff's own testimony makes clear
that she has no foundation whatsoever no personal knowledge, no
detailed facts, and no additional witnesses for her claim that
Susan Lewis was terminated. Her suggestion that such termination was
motivated is mere speculation. Because summary judgment must be
based upon admissible evidence, see Fed.R.Civ.P. 56(e), I
will not rely upon such speculation.
More to the point, Susan Lewis testified that she was not, in fact,
terminated from Starz at all, but that her departure from Starz was a
decision she made mutually, with Starz. Lewis Dep. at 12 (attached to
Pl.'s Mem. as Ex. E); see also id. at 16 (Q: So, in fact, if
someone had said that you were involuntarily terminated by Starz, that
would be incorrect? A: Yes"). Lewis stated that as the size of her client
grew, "the needs of the division didn't match my career direction, as
well as it wasn't really playing to my performance strength."
Id. at 12. In February 2001, therefore, she left Starz.
Id. at 9. When asked specifically whether or not she "believe[d]
that Katrina McCoy was treated badly on the basis of her race," Lewis
responded "[n]o." Id. at 36.
Similarly, plaintiff's claim that Dee Filey Davis and Lee Gashmaxey,
two African-American women employed by Starz, experienced race-based
discrimination is not supported by any evidence. Plaintiff has not
presented this court with the deposition testimony of either of these
women. Moreover, this claim is undermined altogether by plaintiff's
testimony that "by the way, I don't know either one of those ladies."
Id. at 296, 11.22-23.*fn32 And finally, plaintiff's
testimony as to the beliefs and perceptions of two other women is
hearsay and therefore would be inadmissible at trial. See Fed.
R. Evid. 802. Because summary judgment must be based upon admissible
evidence, see Fed.R.Civ.P. 56(e), I cannot consider these
statements. Accordingly, plaintiff has not shown that defendant
discriminated against other African-American females.
Finally, as discussed above, plaintiff cannot demonstrate that
similarly situated employees were treated more favorably because
plaintiff acknowledges that no such similarly situated employees exist.
See supra note 19.
Plaintiff has failed to produce evidence that plaintiff's decision to
terminate her was "so plainly wrong" that it was necessarily a pretext
for discriminatory animus. She has also failed to prove, through either
circumstantial or direct evidence, that racial discrimination was "more
likely than not" the motivating factor behind her discharge.
Consequently, a reasonable factfinder could not find, by a preponderance
of the evidence, that plaintiff has established pretext.
Plaintiff has failed to make out a prima facie case of
discrimination because she cannot demonstrate that the circumstances
surrounding her termination give rise to an inference of unlawful
discrimination. Even if plaintiff had made out a prima facie
case, however, she cannot survive summary judgment because she has failed
to establish pretext pursuant to the Fuentes
test. Accordingly, summary judgment will be entered for the
defendant. An appropriate order follows.
And now, on this ____ day of February 2004, upon consideration of
defendant's motion for summary judgment, (Doc. #16), plaintiff's
opposition thereto and memorandum of law in support thereof, and
defendant's reply, it is hereby ORDERED that defendant's motion for
summary judgment is GRANTED and judgment is entered in favor of Defendant
Starz Encore Group, a/k/a Encore Media Company, and against plaintiff