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Equal Employment Opportunity Commission v. Dart Container Corporation

May 31, 2012


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


The Equal Employment Opportunity Commission brought this action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991 to correct alleged unlawful employment practices that discriminate on the bases of race and national origin, and to provide appropriate relief to Intervenor Ibrahim A. Al-Badawi.*fn1 The Commission also alleged that a class of similarly-situated employees was discriminated against when they were not selected or considered for available supervisory positions. In addition to Mr. Al-Badawi, the Commission identified and is pursuing claims on behalf of two other members of the class, i.e., Adrian Bombin and Ulises Roman, both Hispanic males. The defendant has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, I will grant the motion in its entirety.


The defendant is a producer of polystyrene food service products. Such products principally consist of foam drinking cups, foam plates, plastic eating utensils, and containers used for carry-out food. In Pennsylvania, the defendant employs approximately 1500 employees in facilities located in Leola and Lancaster. It typically manufactures product around the clock, operating three shifts per day. This case primarily concerns operations and employment decisions made with respect to employees in the defendant's "cup" department, that portion of the defendant's production facility that produces foam cups. The cup department is comprised of three separate areas: "North Cup" and "South Cup" are located in the Leola plant, and the third cup production area is located in the Lancaster plant.

A. Ibrahim Al-Badawi

Mr. Al-Badawi was born in Sudan, and in 1995, left Sudan for Senegal. He then emigrated from Senegal to the United States in approximately 1997. Mr. Al-Badawi was hired by the defendant on June 16, 1997, as an inspector/packer, an entry level position at the company. He achieved full-time status on August 25, 1997. As inspector/packer working in the cup department, Mr. Al-Badawi's principal duties were to ensure that manufactured products met quality standards and were correctly boxed for shipment.

On July 12, 1998, Mr. Al-Badawi was promoted to the position of mechanic in the cup department. In that job, his principal duties were to ensure that the cup-producing machines functioned correctly. He reported to various supervisors during his tenure in that position. In addition to inspector/packers and mechanics, each shift supervisor in the cup department also supervised an assistant shift supervisor, print operators, maintenance employees, quality control inspectors, recycle employees and material handlers. The defendant's supervisory structure is that each shift has a supervisor, who is responsible for each shift's safety and productivity. The duties of a supervisor also include scheduling and assignment of employees, evaluating employees working on each shift, conflict resolution between shift employees, and first-level discipline of employees.

In June 2002, Mr. Al-Badawi became what is referred to as a "lead mechanic," the mechanic considered to be the "go-to" mechanic on the shift, but who receives no additional pay. The position has more responsibility than a regular mechanic, in that the lead mechanics begin their shifts earlier to set up and end their shifts later to deal with outstanding issues. For a short period of time in 2003, Mr. Al-Badawi filled in as an Assistant Supervisor in the South Cup area when its supervisor was injured. At other times, Mr. Al-Badawi filled in for supervisors when they were absent, both on a short-term basis and a long-term basis. Lead mechanics are not responsible for employee evaluations and never discipline other employees.

Mr. Al Badawi attended Harrisburg Area Community College while working for the defendant, and obtained an Associate's Degree in Engineering in May 2004.

B. Adrian Bombin

Adrian Bombin emigrated from Cuba to the United States in 2003. He holds a four-year bachelor's degree in diesel mechanics from Martinez de Chile University in Havana, and had had some supervisory experience before coming to this country. In Cuba, Mr. Bombin worked at a company for about a year which manufactured plastic eating utensils where he oversaw quality control for the product, ensured that the machines worked properly, and that the operation ran efficiently. Mr. Bombin also supervised four workers and resolved conflicts among them. Upon leaving the plastic company, Mr. Bombin entered the Cuban army as a rank-and-file soldier. During a service period of two years, Mr. Bombin came to be treated by his commanding officer as an informal "leader" of a sub-unit of five or six other soldiers. Although he did not outrank those men, Mr. Bombin ensured that they performed their jobs.

The defendant hired Mr. Bombin on June 23, 2003 as an inspector/packer on the midnight to eight shift. After about fifteen months, he became a material handler in South Cup, a non-supervisory position which supplies the production-related work stations with the necessary raw materials to produce the end product, and moves the completed product away from the production area and into the warehouse. After several months, Mr. Bombin became a mechanic in the cup operation. During his time as a mechanic, Mr. Bombin filled the lead mechanic role for approximately 11/2 to 2 years in 2007-2008.

C. Ulises Roman

The EEOC sent a solicitation letter to Ulises Roman, and ultimately identified him as a claimant. Mr. Roman, a Hispanic male, was initially hired in 1997 as a maintenance mechanic, and left in 2001 for a position as a non-supervisory maintenance/preventative mechanic for Wilton Armetele, a tableware manufacturer. After eight months, Mr. Roman switched to a different company to work as a site manager for Investment Real Estate Management, LLC, d/b/a Move-In Self Storage, a company which manages storage facilities. As a site manager, Mr. Roman was in charge of the leasing and maintenance operations for the facility, and generated reports using Excel and Lotus. Six months later, Mr. Roman was promoted to Delinquent Tenant Manager, and placed in charge of nine properties in Virginia, Maryland, and Pennsylvania. He traveled to various locations, reviewing delinquency lists, setting up auctions for the liquidation of delinquent tenants' personal items, performing inventories of delinquent storage units, adjusting prices based on vacancy rates, and training newly-hired site managers in the self-storage business. The position required him to travel to different sites every day, which resulted in his spending a significant amount of time in his car, driving between locations. Mr. Roman stayed in that position for approximately one year, working approximately seventy hours a week. He returned to employment with the defendant in October 2003 as a mechanic. After he was rehired, Mr. Roman became a lead mechanic at the North Cup area, and worked in the West Side. He ran that area, collecting numbers, production totals, and reporting them back to the supervisor on the other side of the plant. He floated between rooms to aid the other mechanics. Mr. Roman became part of the Mechanic Mentoring Program, training new mechanics and employees to re-take the mechanic's aptitude test which they had previously failed.


A court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(a). A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.

A party seeking summary judgment always bears the initial responsibility for informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers or other materials. FED.R.CIV.P. 56(c)(1)(A). That is, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322. Under Rule 56, the court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. The court must decide not whether the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Id. at 252. If the non-moving party has exceeded the mere scintilla of evidence threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).


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, color, religion, sex, or national origin." See 42 U.S.C. § 2000e-2(a)(1). In the absence of direct evidence of discrimination, the McDonnell Douglas burden-shifting framework applies to claims brought under Title VII and the PHRA. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); Jones v. Sch. Dist., 198 F.3d 403, 410 (3d Cir. 1999) (applying the same framework to both types of claims).

For failure to promote claims, the initial burden is on the employee to show that (1) he is a member of a protected class, (2) he sought and was qualified for the promotion, (3) he was rejected for the promotion, and (4) a non-member of the protected class was treated more favorably." Young v. Pennsauken Twp. Sch. Dist., 47 F. App'x 160, 161 (3d Cir. 2002) (citing Stewart v. Rutgers, 120 F.3d 426, 432 (3d Cir. 1997)).

Here, for the purposes of this motion, the defendant concedes that the three employees have established prima facie cases. Accordingly, they are entitled to an inference of discrimination. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-254 (1981). The burden then shifts to the defendant to produce a legitimate, non-discriminatory reason for each employee's rejection, id. at 253, by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)). If the defendant produces a legitimate reason, the burden shifts back to the employee, who must show that the reasons offered by the defendant are mere pretexts for discrimination. Young, 47 F. App'x at 161 (citing Burdine, 450 U.S. at 252-253; Jones, 198 F.3d at 410).

To show pretext and survive a motion for summary judgment, an employee 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. Fuentes, 32 F.3d at 764. The Third Circuit has "characterized this final aspect of the McDonnell Douglas analysis as comprised of two alternatives" as articulated by Fuentes and Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996). See Jones, 198 F.3d at 413 (citing Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997)). A plaintiff is required to "demonstrate such weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate reasons for its actions" that the employer's proffered reasons are "unworthy of credence," see Jones, 198 F.3d at 413 (citing Keller, 130 F.3d at 1108); or, in the alternative, "that discrimination was more likely than not a motivating or determinative cause of the adverse employment action," see Jones, 198 F.3d at 413 (citing Fuentes, 32 F.3d at 764). See also Valdes v. Union City Bd. of Educ., 186 Fed. App'x. 319, 322-323 (3d Cir. 2006) (quoting Fuentes, 32 F.3d at 765).

In other words, because the factfinder could potentially conclude that the employer unlawfully discriminated against the plaintiff and was merely trying to conceal its illegal act with the articulated reasons, see Hicks, 509 U.S. at 511, a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action. Fuentes, 32 F.3d at 764. Thus, if the plaintiff has pointed to evidence to discredit sufficiently the defendant's proffered reasons, to survive summary judgment the plaintiff need not also come forward with additional evidence of discrimination beyond his or her prima facie case. Id. Discrediting an employer's proffered reason requires a demonstration of such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions that a reasonable fact-finder could rationally find them unworthy of credence. Id. at 765 (quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992)).

A. Mr. Al-Badawi

1. Application for Relief Shift Supervisor -- October 31, 2003

On October 31, 2003, Mr. Al-Badawi applied for the posted position of Relief Shift Supervisor, but was not selected. This application is outside of the 300-day limitations period and is not part of his claim of discrimination here.

2. Application for Relief Shift Supervisor -- September 2004

Mr. Al-Badawi claims that he was discriminated against by the defendant when it denied him a promotion in September 2004 to the position of Relief Shift Supervisor for the 4:00 to 12:00 shift working in the South Cup area. Three employees applied for the position: Mr. Al-Badawi; Wesley Collins, a white male; and Karastina Ruhl, a white female. The posted requirements for this position were: (a) knowledge and ability to function as a cup mechanic, material handler, print operator, inspector packer, and quality assurance; (b) general supervisory experience or skills desirable; (c) ability to communicate (verbally and written) in English; (d) familiarity with computer desirable; (e) passing score on mechanical aptitude test; (f) familiarity with hand tools desirable; and (g) must be able to lift fifty to sixty-five pounds. See Pls.' Exh. 6.

Prior to the position being posted, Karastina Ruhl was approached by Kerry Noggle, the defendant's Operations Manager, and was asked if she would be interested in applying for the position.*fn3 At the time of the job posting, Mr. Al-Badawi and Miss Ruhl were both working in the cup department on the evening shift. Miss Ruhl worked there as a Print Operator. Miss Ruhl had actual supervisory experience with the defendant in the Injection Molding Department where she worked as a Shift Supervisor from August 3, 2003 to July 4, 2004. The position of Shift Supervisor is a higher-level position than the Relief Shift Supervisor position for which she was applying in September 2004. Miss Ruhl was well-regarded by Jim Bouman, the defendant's Production Manager and Miss Ruhl's immediate supervisor.

While working as a Shift Supervisor, Miss Ruhl attended a training program entitled, "Foundations for Leadership" in June 2004. The program's trainer noted that Miss Ruhl stood out "above the crowd" which included other Dart managers ranging in experience from "a few months to 30 plus years." The trainer noted that Miss Ruhl's involvement in the program helped to make it "an even more positive experience for all."

On July 4, 2004, the defendant changed the Injection Molding operation from a twenty-four hour/seven-day a week operation to a five-day a week operation. Accordingly, the number of Shift Supervisors in that department was decreased from five to three. Miss Ruhl was one of the supervisors affected, and she was transferred to the cup ...

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