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Collins v. Kimberly-Clark Pennsylvania, LLC

United States District Court, E.D. Pennsylvania

March 27, 2017

MURIEL COLLINS Plaintiff,
v.
KIMBERLY-CLARK PENNSYLVANIA, LLC Defendant.

          MEMORANDUM

          C. Darnell Jones, II J.

         I. Introduction

         Plaintiff Muriel Collins, a long-term employee of Kimberly-Clark Paper Company, commenced this action against her employer, alleging agents of the company violated her civil rights during the final years of her employment. In particular, Plaintiff claims Defendant Kimberly-Clark, by and through its agents, unlawfully discriminated against her on the bases of her race[1] and sex, [2] and unlawfully retaliated against her when she complained of this discrimination.[3] In response to Plaintiff's Complaint, Defendant filed a Motion for Summary Judgment, which is now ripe for this Court's review. For the reasons set forth herein, Defendant's Motion shall be granted.

         II. Factual Background

         The undisputed facts[4] establish that Plaintiff was employed by Defendant in the Pulp Department at its Chester, Pennsylvania facility from May 1967 until March 20, 2012. (SUF ¶ 1; RSUF ¶ 1.) The Chester facility produces paper products, including toilet paper and paper towels. (SUF ¶ 2; RSUF ¶ 2.) Plaintiff was a member of the United Steelworkers Local Union 10-488, served as Shop Steward for many years, was Divisional Vice President in 2001, and was the only African American female Chief Shop Steward from 2009 until the end of her employment. (RSUF ¶ 3; RCMF ¶ 3.) As a union member, Plaintiff's employment was subject to the collective bargaining agreement (“CBA”) in effect between Defendant and the union. (SUF ¶ 4; RSUF ¶ 4.) Plaintiff was familiar with the CBA. (SUF ¶¶ 5-6; RSUF ¶¶ 5-6.; Pl.'s Dep. 50:2-51:9.)

         In January 2010, Defendant commenced an investigation regarding allegations of angry and otherwise inappropriate behavior by one of Plaintiff's coworkers, Joel Horne (“Horne”). (SUF ¶¶ 8-9; RSUF ¶¶ 8-9.) Plaintiff witnessed some of the events that prompted Defendant's investigation of Horne. (SUF ¶ 10; RSUF ¶ 10.) At the conclusion of its investigation, Defendant decided to terminate Horne's employment. (SUF ¶ 11; RSUF ¶ 11.) Since Horne was also a union member, he was entitled, under the CBA, to a grievance and arbitration process prior to his termination. (SUF ¶ 12; RSUF ¶ 12.) Plaintiff initially recommended that Horne be terminated but subsequently attended Horne's “second step” grievance meeting as his union representative. (CMF ¶ 9-10; RCMF ¶ 9-10.) Defendant remained steadfast in its decision to terminate Horne. (SUF ¶ 14; RSUF ¶ 14.)

         On November 4, 2010, Plaintiff received a subpoena directing her to appear at Horne's arbitration hearing on November 9, 2010. (SUF ¶ 15; RSUF ¶ 15; Pl.'s App. Ex. 12.) The subpoena was delivered by Ron Schultz (“Schultz”), a level 6 employee of Defendant. (CMF ¶ 13; RCMF ¶ 13; Pl.'s Dep. 415:8-10, 416:3; Flynn Dep. 33:3-5.) Other employees at the Chester facility received similar subpoenas to attend the Horne arbitration hearing. (SUF ¶ 16; RSUF ¶ 16.) The CBA permits employees who are subpoenaed to take leave from work to fulfill witness duty and Plaintiff was familiar with this policy. (SUF ¶ 20; RSUF ¶ 20; Pl.'s Dep. 50:2-51:9; Langdon Decl. ¶ 15.) Although Plaintiff was unaware of anyone else failing to attend an arbitration when issued a subpoena, she elected to not attend the Horne arbitration hearing and instead, report to work. (SUF ¶¶ 17, 20, 24; RSUF ¶¶ 17, 20, 24.) Plaintiff maintains she did not attend because she believed the subpoena to be “fake”; however, she did not ask management or the union about the validity of the subpoena. (SUF ¶ 18; RSUF ¶ 18.) The other employees who received subpoenas did appear at the arbitration hearing. (SUF ¶ 19; RSUF ¶ 19.) John Flynn (“Flynn”), the Chester facility labor relations manager at the time, spoke with Plaintiff by phone about her presence at the arbitration hearing. (SUF ¶ 21; RSUF ¶ 21.) Flynn advised plaintiff that she had, in fact, been subpoenaed. (CMF ¶ 17; RCMF ¶ 17.) Despite Flynn's representations, Plaintiff still did not attend the arbitration hearing and as a result, on November 30, 2010, received a five-day suspension for insubordination. (SUF ¶¶ 22-23; RSUF ¶¶ 22-23; Pl.'s App. Ex. 28.)

         Between November 30, 2010 and December 9, 2010, Plaintiff filed three grievances with Defendant's Human Resources Department relating to the circumstances leading up to her five-day suspension. (SUF ¶ 25; RSUF ¶ 25; Pl.'s App. Exs. 17-19.) In Grievance No. 46-10, she alleged “ongoing conspiracy to discriminate, intimidate, harassment by milice [sic], willful misconduct, fraud, and other wrong doings” but did not specify the basis for the alleged discrimination or harassment. (SUF ¶ 26; RSUF ¶ 26; Pl.'s App. Ex. 18.) Debra Tierno (“Tierno”), manager of the Human Resources Department at the Chester Facility, was assigned to investigate Grievance No. 46-10. (SUF ¶ 27; RSUF ¶ 27.) Plaintiff and Tierno had difficulty meeting to discuss the contents of the grievance. (SUF ¶ 28; RSUF ¶ 28; Pl.'s App. Ex. 8.) On February 1, 2011, Plaintiff called the Kimberly-Clark Ethics and Compliance Employee Hotline and reported the allegations included in Grievance 46-10, as well as new allegations, such as age discrimination. (SUF ¶¶ 29-30; RSUF ¶¶ 29-30; Pl.'s App. Ex. 24.) During that call, Plaintiff asserted that Flynn wanted her to commit perjury at Horne's arbitration hearing by testifying that she supported Horne's termination when in fact, she did not support his termination. (SUF ¶ 31; RSUF ¶ 31.) Plaintiff also reported she did not think Tierno could be fair and impartial in investigating Plaintiff's grievance because she believed, although erroneously, that Tierno had signed her five-day suspension papers. (SUF ¶ 32, 32 n. 7; RSUF ¶ 32; Pl.'s App. Ex. 40.) Subsequently, Kimberly-Clark assigned Lori Ney (“Ney”), a human resources employee at corporate headquarters, to take over Tierno's investigation. (SUF ¶¶ 33-34; RSUF ¶¶ 33-34.) Ney interviewed Plaintiff and received extensive documentation from Plaintiff relating to her claims. (SUF ¶ 35; RSUF ¶ 35.) By April 27, 2011, Ney completed her investigation and concluded there was no evidence to support Plaintiff's allegations that she was asked to commit perjury or that she was a victim of discrimination. (SUF ¶¶ 36-37; RSUF ¶¶ 36-37.) Furthermore, Ney found multiple discrepancies between evidence she discovered and facts alleged by Plaintiff. (SUF ¶ 37; RSUF ¶ 37.) For example, Ney found that the subpoena showed enough detail that Plaintiff could have determined its validity, thereby undermining Plaintiff's claim that she did not appear at Horne's arbitration hearing because she believed the subpoena to be “fake.” (SUF ¶¶ 38-39; RSUF ¶¶ 38-39.) Ney also determined that Plaintiff provided various other reasons for not attending the arbitration, including her belief that Flynn wanted her to commit perjury by stating that she supported Horne's termination. (SUF ¶ 41; RSUF ¶ 41.) However, Plaintiff admitted to Ney that Flynn never directed her to commit perjury. (SUF ¶ 42; RSUF ¶ 42.) Based on the discrepancies between Ney's findings and Plaintiff's reports, Ney concluded that Plaintiff had provided false information during the investigation, thereby directly and willfully violating Defendant's Code of Conduct.[5] (SUF ¶ 44; RSUF ¶ 44; Pl.'s App. Ex. 27.) Although Ney's findings constituted grounds for termination, she did not participate in the decision-making process regarding any potential discipline for Plaintiff. (SUF ¶ 44; RSUF ¶ 44.)

         As a result of Plaintiff's alleged Code of Conduct violation, on May 25, 2011, Defendant issued Plaintiff a fifteen-day suspension, a demotion of one pay level, and a Last Chance Agreement, which had been negotiated between Defendant and the union. (SUF ¶¶ 45-46; RSUF ¶¶ 45-46, Pl.'s App. Ex. 28.) According to the terms of the Last Chance Agreement, Plaintiff could be terminated for any future violations of the Code of Conduct, mill rules, or the CBA. (SUF ¶ 47; RSUF ¶ 47.) Although Plaintiff was informed that she would be terminated if she did not sign the Last Chance Agreement, she refused to do so and was not terminated. (SUF ¶¶ 48-49; RSUF ¶¶ 48-49.) After her suspension, Plaintiff resumed work and collected pay. (SUF ¶ 49; RSUF ¶ 49.)

         On May 26, 2011, Plaintiff filed another charge of discrimination with the Equal Employment Opportunity Commission, alleging gender discrimination, age discrimination and retaliation. (SUF ¶ 50; RSUF ¶ 50; Pl.'s App. Ex. 29.) Plaintiff was absent from work on short-term disability leave from July 18, 2011 through October 17, 2011. (SUF ¶ 51; RSUF ¶ 51.) On November 9, 2011, Plaintiff again called the Code of Conduct Hotline claiming that Defendant's prior disciplinary action towards her was discriminatory and retaliatory, and that Plaintiff had received a voicemail from union vice president Sean Kane (“Kane”), at the end of which Kane could be heard making a statement containing foul language and referring to “her” being on a “list.” (SUF ¶ 52; RSUF ¶ 52.) Defendant assigned Chelsea Hinkle (“Hinkle”), a Human Resources representative from corporate headquarters to investigate Plaintiff's November 9, 2011 Code of Conduct Hotline complaint. (SUF ¶ 53; RSUF ¶ 53.) In addition to interviewing Plaintiff, Ney, Tierno, Langdon, Kane, and union representative Bob Amis (“Amis”), Hinkle reviewed Plaintiff's February 1, 2011 Code of Conduct Hotline complaint and the associated investigation. (SUF ¶¶ 54-55; RSUF ¶¶ 54-55.) On February 2, 2012, Hinkle informed Plaintiff that the investigation did not reveal evidence that Plaintiff received the fifteen-day suspension, demotion or Last Chance Agreement because of her age or race. (SUF ¶¶ 56-57; RSUF ¶¶ 56-57.) Hinkle affirmed Ney's handling of Plaintiff's Grievance No. 46-10 and of Plaintiff's first (February 1, 2011) Code of Conduct Hotline complaint, and indicated that the inappropriate language of Kane's voicemail would be addressed with Kane. (SUF ¶¶ 58-59; RSUF ¶¶ 58-59.) Hinkle informed Plaintiff that she was disciplined for violating Defendant's Code of Conduct by providing untruthful and conflicting information during an investigation and not for contacting the Code of Conduct Hotline, which, Hinkle reiterated, Plaintiff was free to do. (SUF ¶¶ 60-62; RSUF ¶¶ 60-62.)

         On January 2, 2012, Plaintiff sent a mass email to other employees, asking if anyone had knowledge of the “list” mentioned by Kane at the end of his voicemail to Plaintiff. (SUF ¶ 63; RSUF ¶ 63; Pl.'s App. Ex. 33.) Although she had no affirmative knowledge of a “list, ” Plaintiff stated that Horne had been on said list prior to his termination. (SUF ¶¶ 63-64; RSUF ¶¶ 63-64.) Plaintiff's email prompted multiple reports of complaints about her inappropriate use of email. (SUF ¶ 63; RSUF ¶ 63; App. Pl.'s Ex. 33.) Plaintiff also submitted the following communications:

- On January 20, 2012, Plaintiff filed a report through “ECAPS”-Defendant's electronic safety incident reporting system-alleging unsafe work conditions due to conspiracy and discrimination (SUF ¶ 65; RSUF ¶ 65; Pl.'s App. Ex. 34);
- On February 8, 2012, Plaintiff sent another group email to union members, pulp department employees, Langdon, and Tierno, in which she recounted information about the Horne termination and the adverse employment actions taken against her (SUF ¶ 66; RSUF ¶ 66; Pl.'s App. Ex. 35);
- On March 5, 2012, Plaintiff filed a second report via ECAPS, alleging retaliation, conspiracy and fraud, and requesting that Defendant honor the ultimatum associated with the Last Chance Agreement (SUF ¶ 67; RSUF ¶ 67; Pl.'s App. Ex. 36); and, - On March 12, 2012, Plaintiff sent an email to Langdon and Tierno, insisting that they stop “[their] games and lies” or Plaintiff would “send [her] email to the hole [sic] plant…” (SUF ¶ 68; RSUF ¶ 68; Pl.'s App. Ex. 37).

         Throughout the course of these events, Plaintiff otherwise maintained that Defendant honor the ultimatum associated with the Last Chance Agreement by terminating her. (SUF ¶ 69; RSUF ¶ 69.) Finally, on March 20, 2012, Plaintiff received a dismissal notice which stated that she was being terminated for violations of her Last Chance Agreement. (SUF ¶ 70; RSUF ¶ 70; Pl.'s App. Ex. 3.) From March 20, 2012 until the time of filing the instant action, Plaintiff did not hold any other employment. (SUF ¶ 71; RSUF ¶ 71.)

         III. Summary Judgment Standard of Review

         Under Federal Rule of Civil Procedure 56(a), a court shall grant 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 [dispute] as to any material fact and that the moving party is entitled to a summary judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(a). “If the moving party meets its burden, the burden shifts to the nonmoving party to go beyond the pleadings and come forward with specific facts showing that there is a genuine issue for trial.” Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (internal citations and quotation marks omitted). Therefore, in order to defeat a motion for summary judgment, the non-movant must establish that the disputes are both (1) material, meaning concerning facts that will affect the outcome of the issue under substantive law; and (2) genuine, meaning the evidence must be such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, ‘the burden on the moving party may be discharged by “showing”-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof.” Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 193 (3d Cir. 2001) (quoting Celotex, 477 at 325). “[A] nonmoving party must adduce more than a mere scintilla of evidence in its favor and cannot simply reassert factually unsupported allegations contained in its pleadings[.]” Williams v. West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citation omitted). Accordingly, summary judgment is mandated “against a party who fails to make a 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, 477 U.S. at 322.

         IV. Discussion

         As a preliminary matter, this Court remains cognizant of the fact that a party opposing summary judgment may not rely on unsubstantiated allegations set forth in a Complaint or arguments presented in an Opposition Brief to withstand summary judgment. Instead, “[i]f factual support for [a] claim exist[s] in the record, it [is] incumbent upon [the party opposing summary judgment] to direct the District Court's attention to those facts.” DeShields v. Int'l Resort Props., 463 F. App'x 117, 120 (3d Cir. 2012). To the extent Plaintiff herein has failed to do so on numerous occasions, her unsupported allegations and unfounded arguments shall be deemed insufficient grounds for denial of summary judgment.

         A. Gender & Race Discrimination under Title VII and 42 U.S.C. § 1981

         Plaintiff alleges in her Amended Complaint that the foregoing facts show she was subjected to unlawful discrimination based on her sex (female) and race (African American), in violation of Title VII. (Am. Compl. ¶¶ 47-48, [6] 52; Pl.'s Mem. Opp'n 1-2.) She further alleges she was subject to unlawful discrimination based on her race in violation of 42 U.S.C. § 1981. (Am. Compl. ¶¶ 56-57, 59; Pl.'s Mem. Opp'n 1-2.)

         i. Procedural Considerations

         Before turning to the merits of Plaintiff's Title VII claim, this Court must ensure Plaintiff has satisfied the administrative exhaustion requirement for bringing such a claim. See Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997) (“It is a basic tenet of administrative law that a plaintiff must exhaust all required administrative remedies before bringing a claim for judicial relief.”) Regarding employment discrimination claims, a plaintiff must file a Charge of Discrimination form[7] with the EEOC and wait for the EEOC to investigate the claim and issue a right-to-sue letter before filing a lawsuit. See Burgh v. Borough Council of Montrose, 251 F.3d 465, 470 (3d Cir.2001) (articulating the administrative process for discrimination claims). Defendant argues that, inasmuch as Plaintiff did not assert a claim of race discrimination under Title VII in her EEOC Charge of Discrimination, she is foreclosed from making any such claim here because of her failure to exhaust administrative remedies. (Def.'s Mem. Supp. 17, n.14; Am. Compl. ¶¶ 8-9.)

         Plaintiff filed two EEOC Charges of Discrimination. Her first charge, dated April 13, 2009 alleged discrimination based on race and sex, and a right-to-sue letter was never issued. (Pl.'s App. Ex. 20.) As a rule, complainants may not bring suit without obtaining a right-to-sue letter from the EEOC. See Johnson v. City of Phila., Civ. No. 16-3651, 2016 U.S. Dist. LEXIS 170229, at *4 (E.D. Pa. Dec. 7, 2016) (holding that a Title VII claim must be dismissed “for failure to exhaust administrative remedies if the plaintiff does not submit a complaint to the EEOC or relevant state agency and obtain a right-to-sue letter, because both actions are prerequisites to filing suit under Title VII.”) (citing Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997)); Price v. Schwan's Home Servs., Inc., Civ. No. 05-220, 2006 U.S. Dist. LEXIS 101434, at *12 (W.D. Pa. Apr. 3, 2006) (“Plaintiff's failure to obtain a right-to-sue letter for his Title VII claim is fatal to that claim.”) (citations omitted).

Technically, receipt of the right-to-sue letter is a statutory prerequisite to filing suit under Title VII. However, when faced with situations … where the relevant federal agency has failed to issue the letter even though the 180-day deadline has expired, other courts have allowed a plaintiff to maintain a Title VII action provided that she can show that she is entitled to the right-to-sue letter and has requested it. See, e.g., Fouche v. Jekyll Island-State Park Authority, 713 F.2d 1518 (11th Cir. 1983); Johnson v. Duval County Teachers Credit Union, 507 F.Supp. 307 (D. Fla. 1980); Stapper v. Texas Dept. of Human Resources, 470 F.Supp. 242 (D. Tex. 1979). Cf. Moore v. City of Charlotte, 754 F.2d 1100 (4th Cir.), cert. denied, 472 U.S. 1021, 87 L.Ed.2d 623, 105 S.Ct. 3489 (1985) (plaintiff could sue without receipt of proper right-to-sue letter where plaintiff was entitled to the letter pursuant to the statute). The only alternative response would be to refuse to allow a plaintiff to proceed until receiving the letter, which would force the plaintiff to file an additional suit for a writ of mandamus compelling the relevant federal agency to issue the letter. This approach would, of course, be unduly cumbersome. Hence, courts allow a plaintiff to file suit under Title VII even without the right-to-sue letter provided she can show that she is entitled to and has requested the letter.

Dougherty v. Township of Lower Merion, Civ. No. 96-1589, 1996 U.S. Dist. LEXIS 6679, at *6-7 (E.D. Pa. May 21, 1996).

         Plaintiff herein has provided no evidence of record to demonstrate she was entitled to a right-to-sue letter based on her April 13, 2009 EEOC Charge of Discrimination or that she requested such a letter after the 180-day investigation period expired. Therefore, Plaintiff's Title VII race discrimination claim is not administratively exhausted by her first EEOC Charge.

         Plaintiff's second EEOC charge, dated May 26, 2011, alleged only sex and age discrimination but referred, in the statement of the particulars, to her prior charge based on race. (Pl.'s App. Ex. 29.) The EEOC issued a right-to-sue letter regarding this latter complaint on January 31, 2012, thereby notifying Plaintiff that she had ninety (90) days to commence suit in Federal Court. Plaintiff timely filed suit.

         a. Count I

         Count I of Plaintiff's Amended Complaint asserts a claim of both gender and race discrimination under Title VII. In contrast, Plaintiff's May 26, 2011 EEOC Charge of Discrimination, the basis of her right-to-sue, included allegations of gender discrimination but excluded allegations of race discrimination. (Pl.'s App. Ex. 29.) Therefore, technically, Defendant is correct that this Court is justified in dismissing Plaintiff's Title VII race discrimination claim for failure to exhaust required administrative remedies. This is so for several reasons. First, Plaintiff appears to have deliberately omitted allegations of race discrimination in her relevant EEOC Charge. Although she specifically alleged discrimination on the basis of race in her April 13, 2009 EEOC Charge, she did not check off the race, color, or national origin box on her May 26, 2011 Charge when given the opportunity to do so. (Pl.'s App. Ex. 29.) In fact, in completing the statement of “particulars” in her 2011 Charge, Plaintiff specifically referenced the fact that she had filed a previous EEOC Charge on October 31, 2008[8] on the basis of race. She then went on to claim only that male employees and younger employees received preferential treatment and that she was retaliated against on the bases of her sex and age. (Pl.'s App. Ex. 29.)

         It is well-settled that:

After a charge is filed, the scope of a resulting private civil action in the district court is defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination[.] Although this standard does not necessarily preclude a plaintiff from asserting a claim for the mere failure to check a box on an EEOC Charge Form, it does prevent a plaintiff from greatly expand[ing] an investigation simply by alleging new and different facts … following [her] charge. Because the EEOC is required to serve notice on the employer against whom the charges are made, this standard also allows an employer to be put on notice of the claims likely to be filed against it.

Barzanty v. Verizon Pa., Inc., 361 F. App'x 411, 414 (3d Cir. 2010) (internal quotation marks and citations omitted).

         Also, although box-checking is not per se dispositive, Plaintiff did not check the “Continuing Action” box on her EEOC Charge form, thereby failing to notify the EEOC or Defendant that claims outside the scope of those articulated in the 2011 Charge may arise based on subsequent activity. See Barzanty, 361 F. App'x at 414 (affirming rejection of new discrimination claim in Federal Court where a plaintiff “provided no facts [in her EEOC Charge of Discrimination] that suggest [the newly-alleged discrimination], and she did not check the box indicating her charge was a ‘continuing action.”). “Only claims that are fairly within the scope of the prior administrative complaint, or the investigation arising therefrom can be considered to have been exhausted.” Thomas v. St. Mary Med. Ctr., 22 F.Supp.3d 459, 468 (E.D. Pa. 2014) (internal quotations omitted).

         However, this Court finds it is conceivable that, when viewed generously, Plaintiff's race discrimination claim could reasonably be expected to grow out of her 2011 EEOC Charge of gender discrimination. “[T]he kinds of claims that are considered exhausted though not specifically mentioned in the prior [EEOC] charge either arise during the pendency of the EEOC investigation, or are closely related to conduct alleged in the charge … or are considered explanations of the original charge.” Cross v. Donahoe, Civ. No. 12-2670, 2014 U.S. Dist. LEXIS 189406, *9 (D.N.J. May 30, 2014) (internal quotations omitted). Because Plaintiff's Title VII race discrimination claim is based on the same facts as the Title VII gender discrimination charge asserted in Plaintiff's 2011 EEOC Charge, and because the legal analysis is the same for claims of race and gender discrimination under Title VII, this Court will consider Plaintiff's claim of race discrimination under Title VII.

         b. Count II

         Count II of Plaintiff's Amended Complaint alleges race discrimination under 42 U.S.C. § 1981. Said section “only protects against race discrimination and does not require exhaustion of administrative remedies.” Ingram v. Vanguard Group, Inc., Civ. No. 14-3674, 2015 U.S. Dist. LEXIS 93016, at *28 n.11 (E.D. Pa. July 17, 2015) (citing Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 460 (1975) (“[T]he filing of a Title VII charge and resort to Title VII's administrative machinery are not prerequisites to the institution of a Section 1981 action.”)). Although Plaintiff did not allege race discrimination under § 1981 in her original Complaint, Federal Rule of Civil Procedure 15 permits “relation back” of an amendment “to the date of the original pleading” if said amendment “asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading[.]” Fed.R.Civ.P. 15(c)(1)(B). Because Plaintiff's Section 1981 claim arises out of the same conduct alleged in her original Complaint, it “relates back” to the first Complaint and Defendant is not prejudiced by any lack of notice.

         ii. Claims Analysis Framework

         Title VII makes it unlawful for an employer to discriminate against any individual with respect to compensation or terms, conditions, or privileges of employment on the basis of race or gender. 42 U.S.C. § 2000e-2(a). Section 1981 requires both private and state entities to grant “[a]ll persons” the same rights as are “enjoyed by white citizens.” 42 U.S.C. § 1981(a), (c). Race and gender-based discrimination claims brought under Title VII and race-based claims brought under § 1981 are all analyzed under the same burden-shifting scheme. See Greer v. Mondelez Global, Inc., 590 F. App'x 170, 172 n.4 (3d Cir. 2014) (“Because the substantive elements of an employment discrimination claim brought under § 1981 are identical to those brought under Title VII, § 1981 claims are also governed by the McDonnell Douglas burden-shifting framework.”) (citing Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 267 (3d Cir. 2010)); Wilcher v. Postmaster Gen., 441 F. App'x 879, 879-82 (3d Cir. 2011) (analyzing Title VII race and gender discrimination claims together); Pamintuan v. Nanticoke Memorial Hospital, 192 F.3d 378, 385 (3d Cir. 1999) (“We analyze section 1981 claims under the familiar McDonnell Douglas shifting burden framework used in Title VII discrimination cases.”); Because Plaintiff's race and gender discrimination claims are based on the same conduct and analyzed under the same framework, this Court shall consider them together.

         In McDonnell Douglas Corp. v. Green, the Supreme Court articulated “the standards governing the disposition of an action challenging employment discrimination.”[9] 411 U.S. 792, 798 (1973). The Court refined these standards in Texas Dep't of Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). This Court incorporates those refined standards in the framework set forth below.

         a. Step One - Prima Facie Case

         “First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination.” Burdine, 450 at 253. To accomplish this,

[d]iscrimination can be shown under either of two theories, disparate impact theory or disparate treatment theory. “A disparate impact violation is made out when an employer is shown to have used a specific employment practice, neutral on its face but causing a substantial adverse impact on a protected group and which cannot be justified as serving a legitimate business goal of the employer.” Equal Employment Opportunity Comm'n v. Metal Serv. Co., 892 F.2d 341, 346 (3d Cir.1990). Under a disparate impact analysis, a plaintiff need not show intentional discrimination in order to prevail. Id. at 346-47. In contrast to a disparate impact violation, a disparate treatment violation “is made out when an individual of a protected group is shown to have been singled out and treated less favorably than others similarly-situated on the basis of an impermissible criterion.” Id. at 347. To proceed under a disparate treatment theory, plaintiff must prove that the employer had a discriminatory motive. Id.

Crumpton v. Potter, 305 F.Supp.2d 465, 471-72 (E.D. Pa. 2004). In this case, Plaintiff's Amended Complaint alleges “disparate treatment.” (Am. Compl. ¶¶ 1, 9.) Under a disparate treatment analysis, a plaintiff may establish a prima facie case of discrimination by presenting direct evidence of intentional discrimination by the defendant. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). In the absence of direct evidence, a plaintiff can establish a prima facie case by showing the existence of circumstantial evidence which creates an inference of discrimination. McDonnell Douglas, 411 U.S. at 802.

         Here, the record presents no direct evidence; only circumstantial. Therefore, Plaintiff must establish her prima facie case of discrimination by showing: “(1) she is a member of a protected class; (2) she was qualified for the position in question; (3) she suffered an adverse employment action; and (4) that adverse employment action gives rise to an inference of unlawful discrimination.” Tourtellotte v. Eli Lilly & Co., 636 F. App'x 831, 842 (3d Cir. 2016) (citing Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 410-11 (3d Cir. 1999)). See also Crumpton, 305 F.Supp.2d at 472 (same); Harris v. SmithKline Beecham, 27 F.Supp.2d 569, 578 (E.D.Pa.1998) (same). For purposes of satisfying the fourth element, a plaintiff must demonstrate that similarly-situated persons outside the protected class were treated more favorably. Crumpton, 305 F.Supp.2d at 472. See also International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15 (1977) (“Proof of discriminatory motive . . . can in some situations be inferred from the mere fact of differences in treatment.”). While “similarly-situated” does not necessarily mean identically situated, the plaintiff must nevertheless be similar in “all relevant respects.” Opsatnik v. Norfolk S. Corp., 335 F. App'x 220, 222-23 (3d Cir. 2009) (citing Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997)). This often requires a showing that the relevant aspects of the plaintiff's employment situation are “‘nearly identical' to those of the co-workers that plaintiff alleges were treated more favorably.” Hobson v. St. Luke's Hosp. & Health Network, 735 F.Supp.2d 206, 214 (E.D. Pa. 2010) (citing Solomon v. Philadelphia Newspapers, Inc., 2008 U.S. Dist. LEXIS 41978, at *42-43 (E.D. Pa. May 21, 2008) (Giles, J.)). Demonstrating that employees are similarly-situated often includes a “showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them.” Opsatnik, 335 F. App'x at 223. To that end, a plaintiff must show “‘that the other employee's acts were of “comparable seriousness” to his own infraction.'” Anderson v. Haverford College, 868 F.Supp. 741, 745 (E.D. Pa.1994) (quoting Lanear v. Safeway Grocery, 843 F.2d 298, 301 (8th Cir. 1988)). See also McDonnell Douglas, 411 U.S. at 804 (considering whether comparators were “involved in acts . . . of comparable seriousness to” the plaintiff's acts). Whether a particular fact or circumstance is relevant for purposes of a “similarly-situated” analysis must be determined by the context of each case. Hobson, 735 F.Supp.2d at 214 (citing Houston v. Easton Area School District, 355 F. App'x 651, 654 (3d Cir.2009)).

         b. Step Two - Rebuttal

         Second, if a plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee's [treatment].” Burdine, 450 U.S. at 253. To sustain this burden, “[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons.” Id. at 254. The inquiry concerning whether the defendant has met its burden of production “can involve no credibility assessment, ” since “the burden-of-production determination necessarily precedes the credibility-assessment stage.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993) (emphasis in original). “The defendant satisfies its burden of production, and rebuts the plaintiff's prima facie showing of discrimination, simply by introducing admissible evidence that, if taken as true, would permit a finding that the challenged employment action was taken for legitimate, nondiscriminatory reasons.” Blackwell-Murray v. PNC Bank, 963 F.Supp.2d 448, 461 (E.D. Pa. 2013).

         c. Step Three - Pretext

         Third, if the defendant rebuts the plaintiff's prima facie case, “the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Burdine 450 U.S. at 252-53 (citing McDonnell Douglas 411 U.S. at 804). Therefore, in order to survive summary judgment, “a plaintiff must submit evidence [of pretext] 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 v. Perskie, 32 F.3d 759, 764 (3d Cir.1994). In showing pretext, it is not enough to reassert the facts of the prima facie case. Burdine, 450 U.S. at 255 (“[T]he [pretext] factual inquiry proceeds to a new level of specificity.”); see also Martin v. Gen. Elec. Co., 891 F.Supp. 1052, 1056 (E.D. Pa. 1995) (“[A] plaintiff can defeat a motion for summary judgment either by discrediting defendant's reason or by coming forward with additional evidence of discrimination[.]”). Therefore, a plaintiff's prima facie case, combined with “evidence suggesting that an employer's proffered reasons for an adverse employment action are false . . . may sufficiently undermine the employer's credibility to enable a reasonable trier of fact to conclude that illegal discrimination has occurred.” Mitchell v. Miller, 884 F.Supp.2d 334, 371 (W.D. Pa. 2013) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48 (2000)).

         The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Burdine, 450 U.S. 248 at 253. Utilizing these standards, this Court ...


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