United States District Court, M.D. Pennsylvania
October 12, 2005.
RODNEY ALAN WILSON, Plaintiff,
PRIMUS TECHNOLOGIES, INC., Defendant.
The opinion of the court was delivered by: JAMES McCLURE JR., Senior District Judge
On December 22, 2004, plaintiff, Rodney Alan Wilson, filed a
pro se complaint alleging violations of Title VII of the
Civil Rights Act of 1964, § 701, et seq., as amended,
42 U.S.C. § 2000e et seq., ("Title VII") and the Pennsylvania Human Relations
Act, 43 Pa. C.S.A. § 955 et seq., ("PHRA"), against his employer,
Primus Technologies Inc. Wilson alleged that he was
discriminated against and harassed on a daily basis at work.
Plaintiff's complaint asserts that his supervisors racially
harassed him, and that the harassment culminated in his demotion.*fn1
On July 15, 2005, defendant filed a motion for summary
judgment. Shortly thereafter, defendant filed a brief in support
of its motion for summary judgment. Plaintiff then failed to file
a brief in opposition by the scheduled deadline. We then ordered
plaintiff to file an opposing brief by September 2, 2005, or have
his complaint subject to dismissal for failure to prosecute and
failure to comply with a court order. On September 2, 2005,
plaintiff filed a Response to Defendant's Motion for Summary
Judgment (Rec. Doc. No. 13),*fn2 which the court will
construe as a brief in opposition to defendant's motion for
summary judgment. Defendant did not file a brief in reply, and
the matter is now ripe for our decision. For the following
reasons we will grant defendant's motion for summary judgment,
enter judgment in favor of defendant and against plaintiff, and
direct the Clerk to close the case file.
DISCUSSION: I. LEGAL STANDARD
It is appropriate for a court to grant a motion for summary
judgment "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 a judgment as
a matter of law." Fed.R.Civ.P. 56(c).
"If the nonmoving party has the burden of persuasion at trial,
`the party moving for summary judgment may meet its burden by
showing that the evidentiary materials of record, if reduced to
admissible evidence, would be insufficient to carry the
nonmovant's burden of proof at trial.'" Jalil v. Avdel Corp.,
873 F.2d 701, 706 (3d Cir. 1989) (quoting Chippolini v. Spencer
Gifts, Inc., 814 F.2d 893, 896 (3d. Cir. 1987)); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In evaluating a motion for summary judgment the court will draw
all reasonable inferences from the evidence in the record in
favor of the nonmoving party. Am. Flint Glass Workers Union v.
Beaumont Glass Co., 62 F.3d 574, (3d Cir. 1995). The nonmoving
party, however, cannot defeat a motion for summary judgment by
merely offering general denials, vague allegations, or conclusory
statements; rather the party must point to specific evidence in
the record that creates a genuine issue as to a material fact.
See Celotex, 477 U.S. at 32; Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252
(3d Cir. 1999).
II. FACTUAL BACKGROUND
First, we note that defendant complied with Local Rule 56.1 and
filed a separate and concise statement of uncontested material
facts. (Rec. Doc. No. 10.)
Plaintiff, meanwhile, has not introduced any evidence into the
record that creates a genuine issue of material fact. Instead,
plaintiff, who is pro se, made only additional allegations
when he wrote responses adjacent to various paragraphs in
defendant's motion for summary judgment. (Rec. Doc. No. 13.) In
order for plaintiff to create a genuine issue of material fact he
needed to make citations to evidence in the record; otherwise,
under Local Rule 56.1 the material facts set forth by the moving
party are deemed to be admitted.
Although plaintiff says that he told defendant's counsel
everything that was done to him, the court notes that we only
have before us those portions of plaintiff's deposition that
defendant has provided us. Therefore, what follows is largely
taken from the defendant's statement of material facts.
On or about October 11, 1999, plaintiff began his employment
with the defendant. Plaintiff was initially employed in
defendant's stockroom. Plaintiff had problems with his work
performance in the stockroom. On May 5, 2003, Wilson was transferred from the stockroom to defendant's soldering
department allegedly because of his performance at work. When he
was transferred, plaintiff's terms and conditions remained the
same; including his rate of pay, benefits, and hours of work.
After plaintiff was transferred to the soldering department he
filed a Workers' Compensation claim. While waiting for a
determination on his Workers' Compensation claim, Wilson filed
for disability benefits. Plaintiff was approved for and received
disability benefits for more than a year. Plaintiff testified at
his deposition that he was removed from defendant's employment
roster for a reason unrelated to his race. (Rec. Doc. No. 10, Ex.
Wilson knew to take any problems to defendant's Human Resources
Manager, Samuel Shea. Plaintiff had taken work-related problems
to Shea, and was satisfied with the way that Shea had handled
prior work-related problems. Wilson testified that Shea had
handled the issues he raised to him in a prompt and professional
manner. (Rec. Doc. No. 10, Ex. at 17.)
III. WILSON'S TITLE VII & PHRA CLAIMS
At the outset, we note that PHRA claims are interpreted
coextensively with Title VII claims. Douris v. Genaurdi's Family
Markets, Inc., 132 Fed. Appx. 425, 425 n. 1 (3d Cir. 2005)
(citing Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996)); Dennison v. Pennsylvania Dept. Of Corrections,
268 F. Supp. 2d. 387, 405 n. 16 (M.D. Pa. 2003) (Munley, J.). Therefore,
our analysis under Title VII applies with equal force to Wilson's
claims under the PHRA.
Title VII makes it unlawful 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."
42 U.S.C. § 2000e-2(a)(1).
A. Racial Discrimination Based On An Adverse Employment
When a court evaluates a summary judgment motion alleging
racial discrimination it employs the burden shifting analysis set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
First, in order to defeat a summary judgment motion in a race
discrimination case, a plaintiff must adduce sufficient evidence
to establish a prima facie case of discrimination. In order to
establish a prima facie case of racial discrimination a plaintiff
must establish that: (1) that he is a member of a protected
class; (2) that he is qualified for the position; (3) that he was
subject to an adverse employment action; and (4) that employees
not in the protected class were treated more favorably, so as to
give rise to an inference of unlawful discrimination. Josey v.
John R. Hollingsworth Corp., 996 F.2d 632, 638 (3d Cir. 1993);
see also Jones v. School Dist. of Philadelphia,
198 F.3d 403, 410-411 (3d Cir. 1999).
Once the plaintiff has made a prima facie case of racial
discrimination the burden shifts to the defendant to come forward
with admissible evidence that supports a legitimate,
nondiscriminatory reason for the adverse action. McDonnell
Douglas, 411 U.S. at 802. "If the defendant's evidence creates a
genuine issue of fact, then the presumption of discrimination
drops from the case." Stewart v. Rutgers, The State Univ.,
120 F.3d 426, 432 (3d Cir. 1997) (citing Texas Dep't Cmty. Affairs
v. Burdine, 450 U.S. 248, 260 (1981)). The burden then falls on
the plaintiff to show that the "`employer's proffered reason [for
the employment action] was not the true reason for the . . .
decision' but was instead pretextual." Id. (quoting St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 508 (1993)).
The third element of a prima facie case of racial
discrimination is the production of sufficient evidence that
plaintiff has been subject to an adverse employment action. The
United States Supreme Court has defined an adverse employment
A tangible employment action constitutes a
significant change in employment status, such as
hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a
decision causing a significant change in benefits. . . .
A tangible employment action in most cases
inflicts direct economic harm. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
761, 762 (1998).
The Third Circuit has defined an "adverse employment action" as
"an action by an employer that is `serious and tangible enough to
alter an employee's compensation, terms, conditions, or
privileges of employment.'" Storey v. Burns Int'l Sec. Servs.,
390 F.3d 760, 764 (3d Cir. 2004) (quoting Cardenas v. Massey,
269 F.3d 251
, 263 (3d Cir. 2001); and Robinson v. City of
Pittsburgh, 120 F.3d 1286
, 1300 (3d Cir. 1997)).
Defendant contends that in the instant case plaintiff has
failed to "even state a colorable claim that an adverse
employment action of any manner has occurred." (Rec. Doc. No. 11,
at 6.) Plaintiff alleges, however, that he was "demoted" to the
soldering department.*fn3 Defendant asserts that when he was
transferred to that department his rate of pay, benefits, and
hours of work all remained the same and that he had no changes in
the terms or conditions of his employment. The Third Circuit,
however, has held that under certain circumstances a job
transfer, even without a loss of pay or benefits, could
constitute an adverse employment action. See Torre v. Casio, Inc., 42 F.3d 825, 831 n. 7 (3d Cir.
1994); McGrenaghan v. St. Denis Sch., 979 F. Supp. 323, 326
(E.D. Pa. 1997); see also Mondzelewski v. Pathmark Stores,
Inc., 162 F.3d 778, 787-88 (3d Cir. 1998) (transfer to a
different shift that included a loss in free time and which, as
evidenced by affidavit, was considered by workers as a
"punishment shift" was sufficient evidence of an adverse
employment action to state a prima facie case). From plaintiff's
filings it is clear that he is alleging that being transferred
from the stockroom to the soldering department was a punishment
and that he lost privileges associated with his original job
because of his race. (See Rec. Doc. No. 13, at 2, ¶¶ 6-8.)
The McDonnell Douglas prima facie case has never been a
pleading requirement; it is the plaintiff's initial evidentiary
burden. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511
(2002). The plaintiff has the burden of proof by the
preponderance of the evidence at the prima facie stage.
Burdine, 450 U.S. at 253-54. Plaintiff's failure to come
forward with any evidence in support of his allegations that his
demotion to the soldering department impacted the privileges of
his job prevents him from establishing a prima facie case of
discrimination. Plaintiff, in his response, has only indicated
that "witnesses will come forth" to prove that a tangible
employment action was taken based on the plaintiff's race. (Rec.
Doc. No. 13, at 2.) Although the plaintiff's burden of production
to establish a prima facie case is not onerous, Wilson has only provided the
court with vague allegations that his transfer constituted a
tangible employment action. Therefore, we find that plaintiff
cannot state that there was an adverse employment action, and we
now address his claim under a hostile work environment theory.
B. Racial Discrimination Based On A Hostile Work Environment
To the extent plaintiff's claim for employment discrimination
is based on a hostile work environment theory, plaintiff must
show that (1) he suffered intentional discrimination because of
race; (2) the discrimination was pervasive and regular; (3) the
discrimination detrimentally affected the plaintiff; (4) the
discrimination would detrimentally affect a reasonable person of
the same race in that position; and (5) the existence of
respondeat superior liability. Aman v. Cort Furniture Rental
Corp., 85 F.3d 1074, 1081 (3d Cir. 1996); Ocasio v. Lehigh
Family Health Ctr., 368 F. Supp. 2d 370, 376 (E.D. Pa. 2003).
An actionable hostile work environment exists when "the
harassment is so severe and pervasive that it alters the
conditions of the victim's employment and creates an abusive
environment." Weston v. Pennsylvania, 251 F.3d 420, 426 (citing
Meritor Savs. Bank FSB v. Vinson, 477 U.S. 57, 65 (1986)). The
Supreme Court has outlined the substantive contours of behavior
that constitutes a hostile work environment, and has directed the
lower courts to "look at all the circumstances" in determining whether an environment is
sufficiently hostile or abusive. Faragher v. City of Boca
Raton, 524 U.S. 775, 787 (1998) (quoting Harris v. Forklift
Sys. Inc., 510 U.S. 17, 23 (1993)). This multi-factor analysis
includes the courts' looking at the "frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work
performance." Faragher, 524 U.S. at 788 (quoting Harris,
510 U.S. at 23); Ocasio, 368 F. Supp. 2d at 376. The Supreme Court
then noted that, "simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of
employment." Faragher, 524 U.S. at 788 (citations and internal
quotation marks omitted). In order for a claim to be actionable,
"[t]he plaintiff must subjectively perceive the environment to be
hostile or abusive, and conditions must be such that a reasonable
person would have the same perception." Konstantopoulos v.
Westvaco Corp., 112 F.3d 710, 715 (3d Cir. 1997) (citing
Harris, 510 U.S. at 21).
Defendant asserts that, for numerous reasons, Wilson cannot
succeed under a hostile work environment theory. Defendant
asserts that Wilson (1) has failed to demonstrate sufficiently
severe or pervasive behavior, (2) that his claims are
time-barred, and (3) that defendant is entitled to an affirmative
defense because of plaintiff's failure to complain about the harassment when it was
First, we turn to defendant's argument that plaintiff is
time-barred. Defendant asserts that plaintiff is governed by the
180-day filing rule under 42 U.S.C. § 2000e-5(e). This is
erroneous; plaintiff is entitled to the extended 300-day rule,
even though he first filed with the EEOC more than 180 days after
the alleged discrimination. Pennsylvania is a deferral state with
a worksharing agreement between the PHRC and the EEOC. This
agreement entitles civil rights plaintiffs to the extended
300-day filing rule regardless of the state filing. See,
e.g., EEOC v. Commercial Office Prods., 486 U.S. 107, 124
(1988); Bailey v. United Airlines, 279 F.3d 194, 197 (3d Cir.
2002); Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir.
2000); Malone v. Specialty Prods. & Insulation Co.,
85 F. Supp. 2d 503, 505 (E.D. Pa. 2000).
When a plaintiff alleges a hostile work environment, as Wilson
has in this case, acts occurring more than 300 days before the
date plaintiff filed with the EEOC may be considered, so long as
those acts are a part of the same hostile work environment, and
at least one act occurred within the 300 day limit. See Nat.
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116-19 (2002).
In the instant case, plaintiff filed his initial claim with the
EEOC on May 31, 2004. (Rec. Doc. Doc. No. 1, Ex.) Plaintiff
testified that from August 2003, when he went on disability,
through May 31, 2004, the defendant took no discriminatory
actions against him. (Rec. Doc. No. 11, Ex., at 49.)*fn5
Thus, any acts which plaintiff relies on to assert his hostile
work environment claim occurred more than 180 days before he
filed his complaint. However, some of those actions occurred
within 300 days; because some of the acts occurred within 300
days of plaintiff's EEOC filing, the court will also consider
related acts that occurred more than 300 days prior to that
filing. Therefore, defendant's time-bar argument is unconvincing.
We now examine whether plaintiff has alleged acts which are
sufficiently severe or pervasive to create a hostile work
environment. Plaintiff has asserted that he was called
race-related names by various employees and supervisors,
including on at least one occasion "nigger," and another occasion
"Pervasive" incidents "must be more than episodic, they must be
sufficiently continuous and concerted." Faragher,
524 U.S. at 787 n. 1 (citations omitted); see also Harris v. Smithkline Beecham, 27 F. Supp. 2d 569, 578
(E.D. Pa. 1998) (holding "[a] plaintiff cannot rely upon casual,
isolated, or sporadic incidents to support her claim of hostile
work environment harassment"). We find that plaintiff has simply
not come forward with enough specific evidence to demonstrate
that the conditions of his workplace were so unbearable as to
effect the terms and conditions of his employment. See, e.g.,
King v. City of Philadelphia, 66 Fed.Appx. 300, 302, 305 (3d
Cir. Apr. 1, 2003) (finding events "isolated and sporadic" where
plaintiff alleges that he was called "nigger," physically pushed,
and threatened with having his work sabotaged); Singletary v.
Missouri Dep't of Corrections, ___ F.3d ___, 2005 WL 2218039, at
*5 (8th Cir. Sept. 14, 2005) ("Racial epithets are morally
repulsive. But our cases require that a plaintiff show more than
a few occurrences over a course of years. To be actionable, such
conduct must be shown to occur with such frequency that the very
conditions of employment are altered and be viewed by a
reasonable person as hostile."); see also Money v. Provident
Mut. Life Ins. Co., 2005 WL 1417095, at *6 (E.D. Pa. June 15,
2005) (gathering cases where derogatory comments were found not
to be pervasive or regular). Plaintiff has provided scant
evidence of racial insensitivity and harassment and we do not
believe it would have adversely altered the working conditions of
a reasonable employee. We cannot find that reasonable jurors
would disagree. Furthermore, to establish that conduct was sufficiently severe
or pervasive the plaintiff must subjectively perceive the
environment to be hostile or abusive. Konstantopoulos,
112 F.3d at 715 (3d Cir. 1997) (citing Harris, 510 U.S. at 21). Wilson,
by his own testimony, has indicated that he found the name
calling only "little things" and did not bring those incidents to
the immediate attention of his supervisor. (Rec. Doc. No. 11,
Ex., at 44.) And those issues that Wilson did bring to the
attention of his supervisor, those matters he considered "of real
importance," were resolved to his satisfaction. There is no basis
in the record for a reasonable jury to find that Wilson perceived
the harassment to be so severe or pervasive to alter his working
conditions when he characterized the harassment as "little
things" that were not of "real importance" in his deposition
For all of the above reasons, defendant is entitled to a
judgment in its favor on its motion for summary judgment. ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. Plaintiff's motion for summary judgment is
granted. (Rec. Doc. No. 10.)
2. Final judgment is entered in favor of defendant
Primus Technologies Inc. and against plaintiff Rodney
3. The Clerk is directed to close the case file.
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