United States District Court, E.D. Pennsylvania
April 22, 2004.
ROBERT C. NICHOLSON
BRADLEY GRAPHIC SOLUTIONS, INC
The opinion of the court was delivered by: THOMAS O'NEILL, Senior District Judge
Plaintiff, Robert C. Nicholson, filed a complaint against defendant
Bradley Graphic Solutions, Inc., seeking compensatory damages, punitive
damages and other relief arising from defendant's alleged violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
Presently before me is defendant's motion for summary judgment and
plaintiff's response thereto. For the reasons stated below, I will grant
Plaintiff alleges that his termination of employment with defendant was
based on race discrimination. He also alleges that defendant's
explanation for his termination was a pretext for race discrimination.
Plaintiff was employed with defendant Bradley Graphic Solutions, Inc. as
a bindery operator from April, 2000, until his termination on July 12,
2002. Robert J. Bradley, president of defendant, signed plaintiff's
termination letter, which stated that plaintiff was being fired because
of the "repeated intimidation and harassment of [plaintiff's] co-workers
which is clearly a violation of the Employee Handbook and of the working
environment that [defendant] strives [for in the workplace]." Bradley's affidavit also indicated
that his decision to terminate plaintiff's employment was because of the
"numerous complaints and instances involving verbal intimidation and
harassment by Mr. Nicholson."
During his employment with defendant, plaintiff was involved in several
documented confrontations with his co-workers in which he allegedly
engaged in verbal abuse and physical intimidation. On September 12, 2000,
an incident investigation report was filed against plaintiff for
threatening to file a complaint with OSHA and sue defendant company.
Defendant alleges that plaintiff argued with his supervisor, Robert F.
Weikel, about his unsatisfactory pay raise and threatened to sue if he
fell because of papers being left on the floor from the previous work
shift. During many work assignments the floor would get messy from
cutting, boxing, and shrink wrapping certain jobs. On November 16, 2000,
defendant issued an employee warning notice to plaintiff for an incident
where he engaged in a loud argument with Weikel. The notice warned
plaintiff that another similar action would result in a three day
Plaintiff was involved in another altercation on March 15, 2001. An
incident report was filed and signed by two bindery supervisors, Dave
Smolenski and Weikel, stating that plaintiff and Raymont Dickson, an
African-American co-worker, were arguing with each other. The report
stated that the two men were having a heated discussion and decided to go
"outside" to settle their differences. Smolenski and Weikel intervened
and attempted to solve the argument between the two workers. During their
intervention, plaintiff complained to the supervisor that he could slip
and fall from pieces of paper left on the floor. Plaintiff's words and
actions in that instance were viewed by defendant as an attempt to
threaten and intimidate the supervisors.
On June 11, 2001, Dickson filed an incident investigation report
stating that plaintiff threatened to harm him if he did not keep the floor clean. Dickson also
alleged that he requested plaintiff to stop harassing and threatening him
on a daily basis. When Dickson started to go home that day, plaintiff
allegedly followed him. Smolenski and Weikel stopped both men and
inquired about their argument. Dickson alleged that plaintiff responded
to the supervisors' intervention by threatening to harm him.
On September 5, 2001, defendant issued another warning to plaintiff
because he engaged in a "loud shouting match" with the plant manager. The
warning mentioned that plaintiff was continuously "confrontational with
his supervisor," and the continuance of this problem would "result in
termination of employment." Plaintiff refused to accept and sign the
document when defendant presented it to him.
On November 13, 2001, defendant filed an incident report alleging that
plaintiff and a co-worker, Barbara Russell, had an argument that began
because plaintiff was playing his radio too loudly. An unsigned witness
report from McCrosson, a shipper for defendant, noted that plaintiff and
Russell were arguing and yelling that neither of them "owned the place."
According to the incident reports submitted by plaintiff and Russell, the
two parties had different interpretations of what actually occurred
during their argument. Russell's incident report stated that she
requested plaintiff to lower his radio volume and he responded to her
request by saying that she could not tell him what to do. Russell also
alleged that, in the later part of the day, plaintiff remarked that she
was a weak woman with an attitude. Russell said that this remark caused
her to have another argument with plaintiff. She alleged that plaintiff
came across the room, reached within three inches from her and began to
point his finger toward her as he screamed and threatened her. In
Russell's account of this argument, she mentioned that plaintiff's
threats caused her to be afraid for her safety at work.
In contrast, plaintiff said that he did have his radio volume on loud,
but that he turned it down once his supervisor asked him to do so. His
account of what happened in the later portion of that day was different
from Russell's. He stated that Russell overheard a conversation he was
having with his supervisor about a particular task. Plaintiff contended
that he and his supervisor were trying to fix a problem with packaging
boxes and he suggested to his supervisor that Russell fill the boxes and
he would close them. He stated that Russell entered this conversation and
argued that she was not a "weakling." Plaintiff contended that Russell's
remarks began another argument. This confrontation ended with Russell
reporting the incident to another supervisor.
On May 23, 2002, defendant conducted plaintiff's performance appraisal.
Plaintiff received high marks in the areas of quality, productivity, job
knowledge, reliability, and adherence to policy in this performance
appraisal. However, he received a low mark, 65 out of 100 points, on
interpersonal relationships, demonstrating that plaintiff needed
improvement in this area.
In July 2002, there were several arguments reported between plaintiff
and co-workers Steven Snyder and Michael Grimshaw. On July 1, 2002,
Snyder filed an incident report regarding two separate incidents where
plaintiff allegedly threatened him. One incident involved plaintiff
allegedly threatening Snyder if he failed to replace a trash can in the
work area. In another incident, plaintiff allegedly threatened Snyder
because he wanted Snyder to do a job assignment in a certain way. Snyder
alleges that other similar incidents where plaintiff would confront him
about "trivial issues" were reported to supervisors. Grimshaw filed an
incident report on July 3, 2002, about another confrontation with plaintiff.
He alleges that plaintiff started an argument over sharing work space.
Grimshaw alleges that plaintiff got close to his face and threatened him
using vulgar words. He reported this incident to a supervisor.
On July 12, 2002, plaintiff was terminated. After plaintiff received
his termination letter from defendant, he filed a complaint with the U.S.
Equal Employment Opportunity Commission. On February 14, 2003, the EEOC
closed its file on plaintiff's charge against defendant because it was
unable to conclude that plaintiff's evidence established any instances of
III. STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that "if the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with affidavits, if any, show that there is no genuine
issue as to any material fact," the moving party is entitled to summary
judgment. Fed.R.Civ.P. 56(c). An issue is genuine if the fact finder
could reasonably hold in the non-movant's favor with respect to that
issue and a fact is material if it influences the outcome under the
governing law. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247-48
(1986). It is my obligation to determine whether all the evidence can
reasonably support a verdict for the non-moving party. See Allstate Ins.
Co. v. Brown, 834 F. Supp. 854, 856 (E.D. Pa. 1993).
In making this determination, I must view the facts in the light most
favorable to the non-moving party. See Anderson, 477 U.S. at 248.
Further, the non-moving party is entitled to all reasonable inferences
drawn from those facts. Id. However, the non-moving party must raise
"more than a mere scintilla of evidence in its favor" in order to
overcome a summary judgment motion and cannot survive by relying on unsupported assertions,
conclusory allegations, or mere suspicions. Williams v. Borough of W.
Chester, 891 F.2d 458. 460 (3d Cir. 1989). Although the moving party
bears the initial burden of demonstrating the absence of genuine issues
of material fact, the non-movant must establish the existence of each
element of its case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323
Defendant alleges that plaintiff has failed to produce evidence that
shows defendant's decision to terminate plaintiff's employment was based
upon plaintiff's race. In establishing an employment discrimination
claim, plaintiff must show a prima facie case of discrimination. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Once this
prima facie showing has been made, the burden then shifts to defendant to
"articulate some legitimate, nondiscriminatory reason for the employee's
rejection." Id. If defendant succeeds with this showing, then plaintiff
must have the opportunity to demonstrate by a preponderance of the
evidence that the reasons offered by defendant are merely pretext for
discrimination. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1980). The ultimate burden of showing defendant's intentional
discrimination against plaintiff is placed upon plaintiff at all times.
A. Prima Facie Case
Plaintiff has failed to establish a prima facie case of discriminatory
discharge. Plaintiff alleges that his termination was based upon racial
discrimination in violation of Title VII. In order to establish a prima
facie case of discriminatory discharge, plaintiff must show: 1) that he
is a member of a protected class; 2) he was qualified for the position;
3) he was discharged; and 4) others not belonging to the protected class were retained or treated
more favorably. See Riddick-Battle v. Dep't of the Navy, No. 95-7488,
1996 U.S. Dist. LEXIS 12644, at *9 (E.D. Pa. August 29, 1996), citing
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
Plaintiff, who is African-American, was deemed qualified for the
position of bindery operator by defendant. In plaintiff's latest
performance evaluation, defendant reviewed plaintiff's capability to work
as a bindery operator. Defendant assigned high marks to plaintiff's job
performance in the areas of quality, productivity, job knowledge,
reliability, and adherence to policy. These high marks on plaintiff's
performance appraisal demonstrate that he was qualified to work as a
bindery operator. Notwithstanding plaintiff's qualifications, defendant
Although the first three prongs of the test for a prima facie case are
met, plaintiff cannot establish that his white co-workers were able to
retain their jobs or were treated more favorably, while he was not. He
contends that defendant terminated him for his interpersonal conflicts
but did not discharge other white employees for similar misconduct that
could possibly warrant termination. To show such unequal treatment,
plaintiff must "set forth evidence to establish that he was treated
differently from his Caucasian co-workers for similar disciplinary
infractions." Davis v. City of Phila. Water Dep't, No. 00-CV-5671, 2001
U.S. Dist. LEXIS 18163, at *11 (E.D. Pa. November 7, 2001). In
plaintiff's deposition, he mentioned several instances where white
co-workers allegedly acted inappropriately and were not disciplined or
terminated. He argues that these particular incidents demonstrate that
co-workers outside of his protected class were retained or treated more
favorably. A similar situation arose in Davis where plaintiff, Andre Davis,
alleged that his termination was based upon racial discrimination because
his white co-workers allegedly committed similar offenses and were
treated more favorably. Davis, 2001 U.S. Dist. LEXIS 18163, at *6-7. In
support of his claim, Davis submitted notices of suspensions that
defendant gave to his white co-workers, warning of dismissal if a further
offense was committed. Id. Davis argued that he was treated differently
because he was terminated after receiving his notice of suspension while
his similarly situated white co-workers were retained. Id. The court
found that Davis was terminated because he committed another offense
after his first warning and he was unable to show that other white
co-workers who committed a second offense after their first warning were
treated differently. Davis, 2001 U.S. Dist. LEXIS 18163, at *10-11.
Thus, the court held that Davis did not set forth evidence to establish
that he was treated differently from his white co-workers in disciplinary
As in Davis, plaintiff has revealed incidents of alleged misconduct by
his white co-workers, but he has not submitted any documentation to
support this contention.*fn1 There is no evidence outside of his own
deposition to show that other non-minority employees were treated
differently for similar offenses. See Riddick-Battle, 1996 U.S. Dist.
LEXIS 12644, at *11. If the evidence presented in Davis was considered
insufficient, then plaintiff's lack of evidence to support his claim
certainly fails to demonstrate that defendant engaged in differential
treatment. He cannot survive a summary judgment motion by relying on
unsupported assertions, conclusory allegations, or mere suspicions.
Williams, 891 F.2d at 460. Thus, plaintiff has failed to prove that his white co-workers were retained or treated more favorably
than he and he has not met his burden of establishing a prima facie case
of discriminatory discharge.
B. Legitimate, Nondiscriminatory Reason
Even if plaintiff could satisfy the fourth prong of the prima facie
case of discriminatory discharge, defendant has proffered a legitimate,
nondiscriminatory reason for plaintiff's termination. Once plaintiff has
successfully demonstrated his prima facie case, the burden then shifts to
defendant to "articulate some legitimate, nondiscriminatory reason" for
the employment decision. McDonnell Douglas Corp., 411 U.S. at 802.
Defendant contends that plaintiff was not discriminated against on the
basis of his race, but that plaintiff was fired because he engaged in
"repeated intimidation and harassment of [plaintiff's] co-workers." In
offering a legitimate, nondiscriminatory reason for its employment
decision, defendant "must clearly set forth, through the introduction of
admissible evidence, reasons for its actions, which, if believed by the
trier of fact, would support a finding that unlawful discrimination was
not the cause of the employment action." Dorsey v. Pittsburgh Assoc.,
No. 03-1882, 2004 U.S. App. LEXIS 2249, at *8-9 (3d Cir. February 10,
2004), quoting St. Mary's Honor Ctr., 509 U.S. at 507.
Defendant has offered various documents as evidence that the reason
defendant offered in plaintiff's termination letter was a legitimate,
nondiscriminatory reason for plaintiff's discharge. Plaintiff's
deposition, copies of incident investigation reports and statements from
a number of co-workers and supervisors regarding plaintiff's
interpersonal conflicts in the workplace show that during plaintiff's two
years of employment with defendant he was involved in several arguments
with his co-workers and was repeatedly warned about the potential
consequences of his misconduct by defendant. Plaintiff does not deny
these incidents occurred, but contends that other employees who allegedly had similar misconduct problems were not
treated equally because their jobs were not terminated. In order for
defendant's reason to be considered legitimate and nondiscriminatory, it
is enough to present evidence that "raises a genuine issue of fact as to
whether it discriminated against the plaintiff." Texas Dep't of Cmty.
Affairs, 450 U.S. at 254. Such evidence permits the "trier of fact
rationally to conclude that the employment decision had not been
motivated by discriminatory animus." Id. at 255. Defendant's explanation
that plaintiff's termination was based on defendant's inability to
tolerate his continued intimidation and harassment of its workers is a
rational employment decision that is motivated not by any discriminatory
animus, but by legitimate concerns of maintaining a hosfile-free work
environment. Therefore, defendant has produced evidence showing that it
had a legitimate, nondiscriminatory reason for discharging plaintiff from
Because defendant has established a legitimate, non-discriminatory
reason, plaintiff must have the opportunity to demonstrate by a
preponderance of the evidence that the reasons offered by defendant are
merely pretext for discrimination. Id. at 253. In establishing pretext,
plaintiff must present evidence that either: "(1) casts doubt upon each of
the reasons offered by defendant for the employment action so that a
fact-finder could reasonably conclude that each was a fabrication; or (2)
allows the fact-finder to infer that discrimination was more likely than
not the cause for the employment action." Dorsey, 2004 U.S. App. LEXIS
2249, at *11, citing Fuentes v. Perskie, 32 F.3d 759, 761 (3d Cir.
In order to meet the first prong of Fuentes, plaintiff must show "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." Jones v. Sch. Dist. of
Phila., 198 F.3d 403, 413 (3d Cir. 1999), quoting Keller v. Orix Credit
Alliance. Inc., 130 F.3d 1101, 1108-1109 (3d Cir. 1997). This standard
can be satisfied if plaintiff demonstrates "through admissible evidence,
that the employer's articulated reason was not merely wrong, but that it
was `so plainly wrong that it cannot have been the employer's real
reason.'" Id., quoting Keller, 130 F.3d at 1109.
Plaintiff has not presented any reliable, factual evidence from which a
factfinder could reasonably infer that defendant's reason is false. He
has not been persuasive in discrediting defendant's legitimate,
nondiscriminatory reason for termination, that is, plaintiff's alleged
intimidation and harassment of defendant's employees. It was reasonable
for defendant to terminate plaintiff's employment to maintain the
stability of its work environment. Though defendant considered plaintiff
a qualified bindery operator, it determined that plaintiff's repeated
interpersonal conflicts with his co-workers interfered with the company's
goal of achieving a hosfile-free workplace. Thus, defendant had
legitimate concerns that retaining plaintiff would create a tense
environment that could negatively impact the company.
In Jones, a teacher, Charles Jones, quit his job after he was informed
by school district personnel that he would be terminated unless he
voluntarily resigned from the position. Jones, 198 F.3d at 406. Prior to
his resignation, Jones was involuntarily transferred to two schools
because of his hosfile and threatening behavior toward parents and
students. Id. at 406-408. In both instances, he was transferred after
several warnings were issued. After his second transfer, Jones was
involved in a physical altercation with a student that led to his forced
resignation. Id. at 408-409. Jones brought suit alleging racial
discrimination by the school district. Id. at 406. The court held that Jones' proven prima facie case was rebutted by
defendant's legitimate, non-discriminatory reason. Id. at 412.
In determining whether Jones established that defendant's reason was
pretextual, the court found that many of the allegations made in his
affidavit were not supported with anything more than his own beliefs.
Id. As a result, the court held that Jones had insufficient evidence to
support his claim of pretext because of his lack of actual knowledge.
Id. at 414. Like Jones, plaintiff has failed to support his claim of
pretext. Though plaintiff believes that defendant's proffered reason for
his termination was false, he has provided no evidence to demonstrate
that it is pretext for discrimination. Thus, plaintiff has been unable to
cast any credible doubt upon the reason offered by defendant.
If plaintiff fails to prove the first prong of the pretext analysis, he
still has an opportunity to argue pretext under the second prong of
Fuentes. In order to sustain a claim under the second prong, plaintiff
must show that "discrimination was more likely than not a motivating or
determinative cause of the adverse employment action." This test can be
satisfied if plaintiff can demonstrate that the employer has previously
discriminated against him, that the employer has previously discriminated
against other persons in plaintiff's protected class, or that the
employer treated other similarly situated employees not within the
protected class more favorably. Id. at 413, quoting Simpson v. Kay
Jewelers, 142 F.3d 639, 645 (3d Cir. 1998).
Although plaintiff contends that defendant treated him less favorably
than his white co-workers, he has not produced any corroborating evidence
that this was the case. For example, plaintiff alleges that a white
employee, Rick, got into a physical altercation with Weikel where there
was pushing and shoving. Plaintiff believes that defendant did not
discipline Rick because he returned to work the next day. Plaintiff also alleges that another
incident occurred between another white employee, Joe Warner and
Bradley. He alleges that Warner came to work intoxicated and threatened
Bradley with a hammer. Plaintiff argues that defendant took no real
disciplinary action except for sending Warner home that day. He contends
that these incidents prove that his white co-workers were treated more
favorably. Plaintiff has not presented any corroborating evidence such as
incident reports and depositions of witnesses to support this claim. Even
if plaintiff presented such evidence, these alleged incidents do not rise
to the same level as plaintiff's alleged misconduct. He has been cited
for numerous interpersonal conflicts in the workplace whereas his
allegations of his co-workers' hosfile behavior happened with each
individual once. Plaintiff has not been persuasive in showing that racial
discrimination was the motivating factor behind his termination.
Therefore, he has failed to show that defendant's otherwise legitimate,
nondiscriminatory reason is pretextual.
Plaintiff has failed to prove a prima facie case of discriminatory
discharge. Even if a prima facie case were proved, plaintiff has not
shown that defendant's otherwise legitimate, nondiscriminatory reason is
pretextual. Taking all of the evidence in the light most favorable to
plaintiff there is no genuine issue of material fact and it is clear that
defendant's legitimate, nondiscriminatory reason for terminating
plaintiff from employment was not a fabrication. Therefore, I will grant
defendant's motion for summary judgment.
An appropriate order follows. ORDER
AND NOW, this 22 day of April 2004, after considering defendant's
motion for summary judgment and plaintiff's response thereto, and for
reasons set forth in the accompanying memorandum, defendant's motion is
GRANTED. Judgment is entered in favor of defendant, Bradley Graphic
Solutions, Inc., and against plaintiff, Robert C. Nicholson.