United States District Court, E.D. Pennsylvania
African American employee with diabetes, after hearing
insults over the work radio which he perceived to be directed
to him, chose to drive to his Caucasian co-worker's
location to confront and exchange words with the co-worker. A
supervisor investigating this confrontation concluded the
employee caused the problem and told him to go home for the
remainder of his shift. The employee refused to leave work
and admits cursing at his supervisor as overheard by another
supervisor. The employer charged him with insubordination,
held a hearing with union representation, and the hearing
officer concluded the former employee is responsible for
insubordination. The employer then terminated his employment.
The former employee then sued his former employer and
supervisors for race and disability based discrimination and
retaliation. Ignoring his conduct, he complains this
termination is race-based discrimination or retaliation -
although he sprinkles disability in here and there. There is
no evidence his employer treated African American workers
charged with insubordination differently than Caucasian
workers. The opposite is shown and the employee does not
answer the undisputed evidence. The employee has not adduced
evidence to support his theories. Absent genuine issues of
material fact on the claims before us, we grant summary
judgment for the former employer and supervisors.
Fleet, an African American and diabetic, worked for CSX
Intermodal Terminals, Inc. ("Terminals") as an
intermodal service worker from November 2015 until Terminals
fired him on March 3, 2017 after a disciplinary
hearing. Terminals provides intermodal shipping
services to its customers, shipping freight by truck and
train from its intermodal terminals including in
Philadelphia. The Transportation Communication Union
represented Mr. Fleet under a collective bargaining agreement
with Terminals governing Mr. Fleet's
Fleet reported directly to Terminals' Operations
Supervisor Ryan Gomez. Mr.
responsibilities included supervising intermodal service
workers like Mr. Fleet to ensure work is completed
productively and safely. Mr. Gomez, in turn, reported directly
to Jonathan Lowe, Manager of the Philadelphia
workplace. Mr. Lowe's responsibilities included
managing the workplace and, indirectly, supervising
Terminals' employees. Mr. Lowe interviewed and hired Mr.
Fleet receives counseling from March to August 2016,
including for eating during a safety meeting.
months after his hiring, Terminals counseled Mr. Fleet and a
co-worker regarding a verbal altercation between the two of
them. Terminals wrote a letter reminding Mr.
Fleet the company's policies prohibit "mak[ing]
another employee feel uncomfortable or threatened by [his]
words or actions in the workplace." Mr. Fleet
received counseling for violating safety rules on May 9, May
11, June 10, July 29, and August 17, 2016.
9, 2016, Terminals posted a notice prohibiting
"eating/snacking during or after job safety
briefing[s]." Terminals' management holds
mandatory job safety meetings with intermodal service workers
at the beginning of each shift to discuss safety issues and
responsibilities in the work day. The meetings typically
last five to ten minutes and it is undisputed it is important
for employees to pay attention during the safety
meetings. At the beginning of the May 10, 2016
safety meeting - the day after Terminals posted the no eating
notice - Mr. Fleet began eating a sandwich at the start of
the meeting. Mr. Gomez told Mr. Fleet he should not
eat during the safety meeting. Mr. Lowe issued Mr. Fleet a
counseling letter on May 16, 2016 for eating a sandwich at
the meeting and also for the May 9 and 10 violations of
days later, Mr. Gomez saw another intermodal service worker,
Jim Thompson, finishing a sandwich as a job safety meeting
began. Mr. Gomez told Mr. Thompson, who is
Caucasian, he must finish eating before the start of safety
meetings. It is undisputed Mr. Thompson did not
receive written counseling. Defendants contend Mr.
Thompson did not receive written counseling because he was
finishing the sandwich as the safety meeting began, as
opposed to starting to eat as the meeting began, and because
he had no other counseling. Mr. Fleet attributes the
difference in treatment between Mr. Fleet and Mr. Thompson to
Mr. Gomez's "pattern of treating" Caucasian
employees more favorably than African American
disciplinary policies and procedures.
written disciplinary policy classifies offenses into three
categories: minor, serious, and major (the
"Policy"). A minor offense is defined as "a
policy or rule violation that does not result in damage to
equipment or property, and that are not otherwise identified
as 'serious' or 'major' in [other parts] of
this policy." A serious offense is defined as
"including all policy or rule violations that result in
damage to equipment or property." A major
offense is defined as "a rule violation or offense so
serious or egregious as to warrant removal from service prior
to hearing and which may result in
and serious offenses are handled progressively, with the
first minor offense resulting in counseling, and subsequent
minor offenses possibly resulting in suspension or
discharge. Employees committing serious offenses
receive discipline points which, upon accumulation, may
result in discharge. Points are measured in a three year
Terminals' Policy, counseling is not considered
discipline and, consequently, employees receiving counseling
do not face actual discipline, do not receive a charge
letter, and are not entitled to an investigation
hearing. For "repetitive cases" of
minor offenses, Terminals "may elect to conduct a formal
hearing under the collective bargaining agreement" and,
based on the findings of any hearing, may administer
Policy and the applicable collective bargaining agreement
prohibit Terminals from disciplining employees without an
investigation hearing unless the employee waives a
hearing. When a manager believes an employee
committed a rule violation, Terminals notifies the employee
in writing of the charge and schedules a
hearing. The hearing is conducted by a hearing
officer from Terminals' management (with no involvement
in the decision to charge the employee) and the employee with
union representation who may cross-examine any Terminals
witness and present evidence. After the hearing, the hearing
officer in consultation with the company's Labor
Relations Manager decides whether to, and the extent of,
Fleet's request for FMLA leave.
Fleet applied for intermittent leave under the Family Medical
Leave Act (FMLA) on August 1, 2016 because of his
diabetes. Terminals approved Mr. Fleet's
request for intermittent FMLA leave beginning August 1, 2016
despite Mr. Fleet's ineligibility for FMLA leave at that
time. There is no dispute Mr. Fleet began
working at Terminals on November 19, 2015 and, under the
FMLA, did not become eligible for FMLA leave until employed
for at least twelve months. Terminals attributes its
mistake to clerical error. Terminals realized its error,
informed Mr. Fleet, advised him to re-apply for FMLA leave
after November 19, 2016, and did not penalize him for any
absences taken in reliance on the approval of FMLA
October 19, 2016, Mr. Fleet reported to Mr. Lowe numbness in
his hands, blurry vision, and the need to see a
doctor. Mr. Lowe completed a "Withheld from
Service Form" the same day attributing the reason for
removal to Mr. Fleet's high blood sugar, and prepared a
letter to Mr. Fleet's doctor asking for an evaluation of
Mr. Fleet's ability to safely return to
work. At his deposition, Mr. Fleet swore Mr.
Lowe put him out of service on October 19 because of safety
issues, and not as discipline. Mr. Fleet's doctor
reported Mr. Fleet could return to work without restrictions
on October 26, 2016 and, after review by CSX's Chief
Medical Officer, Mr. Fleet returned to work on October 26,
2016. Terminals' FMLA File Record does not
count Mr. Fleet's October absence as FMLA
Fleet again applied for FMLA leave on November 19, 2016,
Terminals approved his request, and he began using
intermittent FMLA leave in November 2016.
Fleet complains about Mr. Gomez to the Terminals' ethics
November 6, 2016, Mr. Fleet called Terminals' ethics
hotline to complain about the counseling he received for
eating a sandwich at the May 9 job safety meeting and other
"write ups," and to report Mr. Gomez following him
to the bathroom and around work. At his deposition, Mr.
Fleet testified he called the ethics hotline "about the
diabetes thing" and expressed his "complaints and
[his] concerns about the diabetes and whatever else was going
on at the time of me feeling like I was being a
Employee Relations Manager Matthew Charron investigated Mr.
Fleet's complaint to the ethics hotline. In the course
of his investigation, Mr. Charron interviewed Mr. Fleet, Mr.
Gomez, Mr. Lowe, and Safety Manager Glen
Gunther. Mr. Charron did not find unethical or
unfair treatment of Mr. Fleet.
his investigation, Mr. Charron told Mr. Fleet on two
occasions he could seek a reasonable accommodation for his
diabetes by completing forms to CSX's medical
department.Mr. Fleet never completed the forms
requesting an accommodation. Mr. Fleet told Mr. Charron he
(Mr. Fleet) did not have any further problems with his
30, 2016 incident resulting in a finding of Mr. Fleet's
December 30, 2016, Mr. Fleet worked second shift with Mr.
Gomez as supervisor.During his shift, Mr. Fleet heard Mr.
Thompson make a comment over the radio about workers taking
too many breaks. Mr. Fleet perceived the comment to be
directed to him regarding bathroom breaks. Another
intermodal service worker, Mike Pote, also commented over the
radio calling Mr. Fleet a "bum" for taking breaks
and telling Mr. Fleet to "stop
bullshitting." In response, Mr. Fleet told Mr. Pote
over the radio to "stop bitching" and they would
settle their dispute in person at a later time. Mr. Fleet
admits he and Mr. Pote had a "back and forth
argument" over the radio, each exchanging
"words" and "curs[ing] each other
five and ten minutes later, Mr. Fleet left his work site in
his truck and drove to Mr. Pote's location farther away
in the rail yard. Mr. Fleet approached Mr. Pote and asked
him "what the real problem is, what's the situation,
what's wrong." Mr. Fleet and Mr. Pote "went
back and forth" in argument, with Mr. Fleet ultimately
leaving and telling Mr. Pote to "go get
high." At a subsequent investigation hearing,
Mr. Fleet admitted when he approached Mr. Pote to talk, Mr.
Pote said "no, not right now, . .. I don't feel like
talking right now."
intermodal service worker, John Boyer, witnessed the exchange
between Mr. Fleet and Mr. Pote. Mr. Boyer reported the
incident to Mr. Gomez. Mr. Gomez then spoke to both Mr.
Fleet and Mr. Pote. Mr. Fleet told Mr. Gomez he was tired of
the "white guys getting away with
Gomez reported the incident to Mr. Lowe who, at the time, was
on vacation. Mr. Lowe directed Mr. Gomez to take
witness statements and notify Regional Terminal
Superintendent Abigail Beazley, Mr. Lowe's
supervisor. Ms. Beazley directed Mr. Gomez to
collect witness statements. Mr. Gomez took witness
statements from all intermodal service workers on duty at the
time of Mr. Fleet and Mr. Pote's encounter.
is no dispute Mr. Pote's witness statement is consistent
with the statement he gave Mr. Gomez just after the
encounter; Mr. Boyer's witness statement, the only other
employee to witness the encounter, reports he (Mr. Boyer)
"was in fear for Pote's safety . . . and believed
[Mr. Fleet] was going to strike Pote"; and Mr.
Fleet's written statement admits to arguing with Mr. Pote
over the radio including telling Mr. Pote to "stop
bitching" and the they would "talk about this like
men in the trailer." There is no dispute Mr. Gomez
reviewed the witness statements, and discussed them with Ms.
Beazley who concluded Mr. Fleet the aggressor in the
encounter with Mr. Pote and directed Mr. Gomez to send Mr.
Fleet home until his next scheduled shift.
Gomez called Mr. Fleet into the terminal office and told him
to leave work until his next scheduled shift. There is no
dispute Mr. Fleet did not immediately comply with Mr.
Gomez's directive and instead argued with Mr. Gomez about
the decision; demanded Mr. Gomez "call somebody"
about the situation; and called Mr. Gomez a
racist. Although in his deposition Mr. Fleet
described himself as "hot" in anger over being sent
home, Mr. Fleet now denies "that he was
'hot'" and instead contends he "was
upset" with Mr. Gomez because Mr. Fleet believed Mr.
Pote should have been sent home as well and Mr. Gomez favored
Mr. Pote, a Caucasian employee.
is no dispute Mr. Fleet eventually left the Terminal office,
but did not leave the Terminal itself, remaining in his car
for approximately forty-five minutes. There is no
dispute when Mr. Gomez approached Mr. Fleet while sitting in
his car, and again told Mr. Fleet to go home, Mr. Fleet
became "very, very frustrated" and told Mr. Gomez
the decision to send him home is
"bullshit." There is also no dispute Ms. Beazley
overheard, through Mr. Gomez's Bluetooth headset, Mr.
Gomez's interchange with Mr. Fleet, including Mr.
Fleet's admitted "hollering at Gomez saying this is
not cool, this is unfair, this is some bullshit" and his
admittedly "loud tone" when expressing himself
which - in Mr. Fleet's estimation - "doesn't
necessarily mean that I'm aggressive." Mr. Fleet
ultimately left the workplace after being told several more
times to leave.
Fleet's dismissal after a formal investigation hearing
with union representation.
next day, December 31, 2016, Ms. Beazley sent an email to
Labor Relations Manager Liza Griffin, Mr. Lowe, Mr. Gomez,
and Paul Hand, Ms. Beazley's supervisor at the time,
recommending Mr. Fleet's termination because of his
conduct towards Mr. Gomez. Mr. Lowe, Ms. Beazley, Mr.
Gomez, and Ms. Griffin conferred and concluded Mr. Fleet
should be kept out of service pending a formal
investigation. Mr. Lowe told Mr. Fleet he would be held
out of service pending an investigation into the December 30,
January 6, 2017, Terminals charged Mr. Fleet with
"insubordination, unprofessional conduct of an employee,
conduct inimical to the company's interest, dereliction
of duty, and violation of Safety Rule(s)" for his
conduct towards Mr. Pote and Mr. Gomez on December 30,
2016. Terminals simultaneously charged Mr.
Pote with "unprofessional conduct of an employee,
conduct inimical to the company's interest, dereliction
of duty, and violation of Safety Rule(s)," but did not
charge him with insubordination.
scheduled a formal investigation hearing on the charges
against Mr. Fleet on January 13, 2017, later rescheduled for
February 2, 2017 at the request of Mr. Fleet's union
representative. The February 2, 2017 hearing included
charges against both Mr. Fleet and Mr. Pote.
Margol, then Manager of Employee/Contractor Services, served
as the Hearing Officer. Hearing Officer Margol heard
testimony from Mr. Gomez, Ms. Beazley, Mr. Boyer, Mr. Pote,
and Mr. Fleet. After reviewing hearing testimony and
exhibits, Ms. Margol called Labor Relations Manager Griffin,
who also reviewed the evidence, and the two determined the
evidence showed Mr. Fleet's
insubordination. Terminals terminated Mr. Fleet's
employment effective March 3, 2017. There is no dispute, at
the time of their decision to terminate Mr. Fleet, Hearing
Officer Margol and Labor Relations Manager Griffin did not
know he applied for or used FMLA leave.
Officer Margol and Labor Relations Manager Griffin
additionally determined the evidence showed Mr. Pote used
profane and inappropriate language during his radio exchange
with Mr. Fleet, finding he committed a "serious"
offense under the Policy and assessed seven points against
Fleet's EEOC Charge.
January 17, 2017, Mr. Fleet cross-filed a Charge of
Discrimination with the Equal Employment Opportunity
Commissions and the Pennsylvania Human Relations Commission
against Terminals (the "Charge"). Mr. Fleet
indicated "race" as the basis of discrimination,
and stated his belief Terminals suspended him because of his
race in violation of Title VII. The Charge listed the
date of discrimination as only December 30,
2016. On May 10, 2017, the EEOC notified Mr.
Fleet "there is no belief that your discharge was based
upon your race" and issued a Right-to-Sue
Fleet's complaint in this Court.
Fleet sues his former employer Terminals and supervisors Ryan
Gomez and Jonathan Lowe, alleging discrimination and
retaliation on the basis of race in violation of 42 U.S.C.
§ 1981, Title VII of the Civil Rights Act of 1964,
the Pennsylvania Human Relations Act,  and the
Philadelphia Fair Practices Ordinance,  aiding
and abetting race discrimination in violation of the
PHRA and PFPO, and retaliation in violation
of the Family Medical Leave Act. We earlier dismissed all
claims against Mr. Lowe alleging PHRA discrimination and FMLA
retaliation and all claims based on Mr. Lowe's alleged
conduct other than the December 30, 2016
and Messrs. Gomez and Lowe move for summary judgment on all
of Mr. Fleet's claims arguing: (1) Mr. Fleet failed to
exhaust his administrative remedies on most of his race
discrimination claims, all of his retaliation claims, all
disability discrimination claims, to the extent he pleaded
any; (2) even if he exhausted his administrative remedies,
Mr. Fleet cannot show discrimination in his termination; (3)
Mr. Fleet cannot show retaliation for protected conduct; and
(4) there is no evidence to hold Mr. Gomez or Mr. Lowe
the facts and all reasonable inferences in the light most
favorable to Mr. Fleet, there are no genuine issues of
material fact and Mr. Fleet failed to adduce evidence
sufficient to allow a reasonable jury to find in his favor. A
"mere scintilla of evidence" in Mr. Fleet's
favor does not create a genuine issue of material fact and he
may not "rest on speculation and conjecture in opposing
a motion for summary judgment."
Mr. Fleet failed to exhaust administrative remedies on his
claims under Title VII, the PHRA, and PFPO.
argue summary judgment must be entered in their favor because
Mr. Fleet failed to exhaust his administrative remedies on
(1) race-based discrimination claims other than the December
30, 2016 incident; (2) any claims relating to disability as a
diabetic; and (3) any retaliation claims brought under Title
VII, the PHRA, and the PFPO. Mr. Fleet elected not to
respond to Defendants' argument on summary judgment or
offer opposition to this exhaustion argument.
bringing an action in court seeking relief under Title VII,
the PHRA, or PFPO, a plaintiff must first exhaust
administrative remedies by filing a charge of discrimination
with the EEOC or PHRA. The test to determine whether a
plaintiff exhausted his administrative remedies is
"whether the acts alleged in the subsequent Title VII
suit are fairly within the scope of the prior EEOC complaint,
or the investigation arising therefrom."
argue Mr. Fleet's Charge alleges only race
discrimination, checking only the "race" box on the
Charge and, in the "particulars" section, referring
only to the December 30, 2016 incident as the basis of his
belief Terminals terminated him because of his
race.Defendants argue the EEOC limited its
investigation to whether Terminals terminated Mr. Fleet
because of his race.
mere failure to check a specific box on the EEOC charge form
is not a fatal error, . . . [r]ather, '[t]he most
important consideration in determining whether the plaintiffs
judicial complaint is reasonably related to his EEOC charge
is the factual statement.'" "An
EEOC Charge Form serves to define the scope of the
Commission's investigation and to notify the defendant of
the charges against it."
Mr. Fleet's Charge, Mr. Fleet failed to exhaust claims
for race-based discrimination or retaliation for conduct
other than the December 30, 2016 incident and any claims
relating to disability. With regard to the events other than
the December 30, 2016 incident, Mr. Fleet's Third Amended
Complaint alleges Defendants were aware he needed a
reasonable accommodation to eat, drink, and take bathroom
breaks because of his diabetes but nonetheless reprimanded
him for eating a sandwich at the May 9, 2016 job safety
meeting and Mr. Gomez followed Mr. Fleet when he required use
of the bathroom. These allegations are based on claims
of disability discrimination, not race. The Charge does not
mention disability. Mr. Fleet's Third Amended Complaint
alleges retaliation for reporting discriminatory conduct and
failure to accommodate his disability. The
Charge lacks retaliation allegations. Mr. Fleet elected not
to check any box other than "race" and failed to
provide facts in the "particulars" section other
than the December 30, 2016 incident.
for race-based discrimination other than the December 30,
2016 incident, disability-based discrimination, and
retaliation cannot "reasonably be expected to grow out
of the charge of discrimination." Based on
the Charge, Mr. Fleet did not exhaust his administrative
remedies as required by Title VII and the PHRA. We grant
Defendants' motion for summary judgment as to his Title
VII, PHRA, and PFPO claims based on discrimination other than
his race-based claim of discriminatory discharge relating to
the December 30, 2016 incident.
Even if Mr. Fleet exhausted his administrative remedies,
summary judgment is entered in favor of Defendants on
race-based discrimination claims under § 1981, Title
VII, the PHRA, and PFPO.
Mr. Fleet administratively exhausted his race-based
discrimination claims under Title VII, the PHRA, and PFPO
they, along with Mr. Fleet's § 1981 claim, fail on
summary judgment. Defendants argue they are entitled to
summary judgment on Mr. Fleet's claims of race-based
discrimination in the termination as a result of the December
30, 2016 incident and other claims of discrimination.
discrimination claims under Title VII, § 1981, the PHRA,
and PFPO are all analyzed under the McDonnell Douglas
Corp. v. Green burden-shifting
analysis. Mr. Fleet does not suggest a different
standard. Under the McDonnell Douglas framework,
"a plaintiff first 'carr[ies] the initial burden ...
of establishing a prima facie case of racial
discrimination.'" To establish a prima
facie case of discrimination, Mr. Fleet must show
"(1) [he] is a member of a protected class; (2) [he] was
qualified for the position he sought to attain or retain; (3)
[he] suffered an adverse employment action; and (4) the
action occurred under circumstances that could give rise to
an inference of intentional
Fleet establishes a prima facie case of
discrimination, the burden shifts to Terminals to articulate
a legitimate, nondiscriminatory reason for terminating Mr.
Fleet. If Terminals articulates a legitimate,
nondiscriminatory reason for terminating Mr. Fleet, the
burden shifts back to Mr. Fleet to show Terminals' stated
reason is pretext. At summary judgment, Mr. Fleet can
show pretext in two different ways: (1) he "may point to
evidence in the record that would cause a reasonable juror to
disbelieve the employer's legitimate nondiscriminatory
reason, thereby creating a genuine dispute of material fact
as to the credibility of that reason" or (2) "by
pointing to evidence that indicates that the employer acted
with discriminatory animus."
Mr. Fleet fails to meet his burden of showing pretext in
Defendants' decision to terminate him for insubordination
arising from the December 30, 2016 incident and we reject his
newly raised hostile work environment claim.
concede Mr. Fleet meets a prima facie case of
discrimination arising from his termination. They argue he
fails to show pretext in his termination arising from the
December 30, 2016 incident and summary judgment must be
awarded in their favor. We agree.
stated they terminated Mr. Fleet's employment due to his
insubordination toward Mr. Gomez when directed to leave the
workplace on December 30, 2016. It is Mr. Fleet's burden
to show this reason is pretext for discrimination. He fails
to do so.
Fleet concedes he did not comply with Mr. Gomez's
directive to leave the workplace on December 30, 2016; he
concedes he argued with Mr. Gomez about the decision to send
him home that day; and he concedes he became
"upset" and used a "loud tone" some might
perceive as aggressive, including cursing and yelling at his
supervisor Mr. Gomez. There is no dispute when Mr. Gomez
approached Mr. Fleet to leave the workplace, Mr. Fleet became
"very, very frustrated" and told Mr. Gomez the
decision to send him home is
"bullshit" and admittedly "holler[ed] at
Gomez saying this is not cool, this is unfair, this is some
admitting his conduct, he denies insubordination, arguing he
was not insubordinate, only upset about being sent home and
justifies his admitted behavior to his belief race motivated
the decision to send him home on December 30. But there is no
evidence to meet either pretext prong of Fuentes;
there is no evidence to disbelieve Terminals' articulated
legitimate reason or to believe an invidious discriminatory
animus is more likely than not a motivating or determinative
cause of Mr. Fleet's termination.
Fleet does not address the pretext argument. Instead, he
raises, for the first time in his response to summary
judgment, a hostile work environment claim on the basis of
race. Mr. Fleet did not include a hostile work environment
claim in his EEOC Charge, there is no hostile work
environment claim pleaded in the Third Amended Complaint, and
he cannot raise the claim now. Even if he could now
raise a hostile work environment claim, Mr. Fleet must show
"(1) [he] suffered intentional discrimination because of
[his] [race]; (2) the discrimination was severe or pervasive;
(3) the discrimination detrimentally affected [him]; (4) the
discrimination would detrimentally affect a reasonable person
in like circumstances; and (5) the existence of
respondeat superior liability [meaning the employer
is responsible.]" We find no such evidence for the
same reasons we do not find pretext on Mr. Fleet's
discrimination claims To show discrimination surrounding the
December 30, 2016 incident, Mr. Fleet points to Mr. Pote, who
is Caucasian, as a comparator. Mr. Fleet argues
Terminals did not terminate Mr. Pote despite Mr. Pote's
earlier major offense for failing a drug screening at the
time of the December 30, 2016 incident resulting in a
"last chance agreement." Mr. Fleet contends Mr.
Pote had a previous major offense while Mr. Fleet did not.
record, however, shows Mr. Fleet had a previous major offense
on his disciplinary record for a verbal altercation with
co-worker John Boyer in March 2016. Terminals argues the
"last chance agreement" expressly provided Mr. Pote
would be dismissed only for a subsequent "major"
rule violation. Mr. Pote's violations with regard
to his conduct on December 30, 2016 constituted a
"serious," not "major" offense under
Terminals' Policy.Terminals disciplined Mr. Pote for
his conduct in the December 30 incident. But Mr. Pote did not
commit insubordination - that is the difference between him
and Mr. Fleet. Mr. Fleet does not address this distinction.
is no evidence Terminals treated Caucasian intermodal service
workers charged with insubordination more favorably than
African American intermodal service workers charged with
insubordination. The evidence shows insubordination is
considered a "major" violation under Terminals'
Discipline Policy meriting termination, and Terminals
terminated Caucasian intermodal service worker, Patrick
McDevitt, for insubordination a year earlier for failing to
follow the instructions of his manager; acting
unprofessionally towards his manager, Mr. Lowe; and failing
to immediately leave the workplace when instructed to do
Fleet also cites the testimony of witness John Boyer, a
Caucasian, who witnessed the episode between Mr. Fleet and
Mr. Pote, and who Mr. Fleet contends "had an axe to
grind" from his March 2016 altercation with Mr. Fleet.
Mr. Fleet contends Mr. Gomez took a witness statement from
Mr. Boyer and "used it as the catalyst to place [Mr.
Fleet] out of service." The evidence demonstrates
otherwise. Terminals terminated Mr. Fleet after a formal
investigation hearing where Mr. Fleet received union
representation. There is no dispute Terminals investigated
both Mr. Fleet and Mr. Pote; Hearing Officer Margol heard
testimony from Mr. Gomez, Ms. Beazely, Mr. Boyer, Mr. Fleet,
and Mr. Pote; and, after hearing, Hearing Officer Margol and
Labor Relations Manager Griffin determined the evidence
demonstrated Mr. Fleet's insubordination.
contends Terminals failed to investigate the complaints he
made to Mr. Gomez on December 30, 2016 regarding disparate
treatment, and overheard by Ms. Beazley. Mr. Fleet contends
Defendants failed to take reasonable measures to investigate
his complaints instead "blam[ing] his anger and passion
on December 30, 2016, as an insubordination."
construe Mr. Fleet's "failure to investigate"
argument as going to Terminals' respondeat
superior liability in his newly advanced hostile work
environment claim. Where harassment is reported to an
employer, a failure to investigate and remediate will result
in employer liability. Even if this argument had anything
to do with a race-based disparate treatment claim, we find it
is without merit.
evidence of record shows Terminals investigated his November
6, 2016 complaints to the ethics hotline. It is undisputed
Terminals' Employee Relations Manager Matthew Charron
investigated Mr. Fleet's claims, interviewing Mr. Fleet,
Mr. Gomez, Mr. Lowe, and a Safety Manager. Mr. Fleet
told Mr. Charron he (Mr. Fleet) did not have any further
problems with his manager. Neither Mr. Gomez nor Mr.
Lowe, nor anyone at Terminals, ever counseled or disciplined
Mr. Fleet for taking a bathroom break. As to
complaints made to Mr. Gomez on December 30 and overheard by
Ms. Beazley, Terminals held a hearing and took evidence
including Mr. Fleet's assertion Caucasian employees
received favorable treatment. Mr. Fleet's union
representative at the hearing had the opportunity to
cross-examine Terminals' witnesses.
Fleet offers no evidence Terminals' articulated basis for
Mr. Fleet's termination is pretextual. He cites only his
affidavit filed in opposition to summary judgment swearing to
his belief of unfavorable treatment in comparison to
similarly situated Caucasian co-workers. He may
not rely on his Declaration relying on his "belief of
unfavorable treatment in comparison to similarly situated
Caucasian intermodal service workers to defeat summary
judgment. There is no evidence in the record to
cause a reasonable juror to disbelieve Terminals'
legitimate nondiscriminatory reason for Mr. Fleet's
termination for insubordination to create a genuine dispute
of material fact as to the credibility of that reason or
evidence to indicate Terminals acted with discriminatory
animus. Terminals terminated Mr. Fleet because of his
insubordinate conduct with regard to his supervisor, Mr.
Gomez. Mr. Fleet does not deny this but seeks to justify
himself because he became emotionally upset. Terminals
terminated Mr. Fleet consistent with its Policy. It is
undisputed Terminals terminated a Caucasian intermodal
service worker for similar insubordinate conduct a year
earlier. We grant summary judgment in favor of Defendants on
Mr. Fleet's race discrimination claims under § 1981;
Title VII, the PHRA, and the PFPO relating to the December
30, 2016 incident resulting in his termination.
Mr. Fleet fails to meet a prima facie case as to the
remaining claims of discrimination and, even if he carried
his burden of showing a prima facie case, he fails
to meet his burden of showing pretext.
next argue Mr. Fleet's remaining claims of discrimination
- written counseling for eating a sandwich at the job safety
meeting and following him to the bathroom -fail to meet
a. prima facie case of discrimination and, even if
he could make out a prima facie case, he fails to
meet his burden of showing pretext.
first argue Mr. Fleet fails to meet the third prong of the
prima facie case because he did not suffer an
adverse employment action. Defendants argue a written
reprimand for eating a sandwich at the job safety meeting and
being followed to the bathroom are not adverse employment
actions. An "adverse employment action" is defined
by our court of appeals as "an action by an employer
that is 'serious and tangible enough to alter an
employee's compensation, terms, conditions, or privileges
of employment.'" Defendants argue reprimands
and counseling, even in a progressive disciplinary policy,
and being observed at work, are not adverse employment
actions. Mr. Fleet does not respond to this argument.
court of appeals and courts in this Circuit find actions such
as performance improvement plans, negative reviews, verbal
reprimands, and "write-ups" do not constitute
adverse employment actions under Title VII without some
"material change in the terms or conditions of his
employment." There is no evidence Mr. Fleet
suffered a change in his employment status as a result of the
written counseling or being followed on bathroom breaks
sufficient to constitute an adverse employment action. Mr.
Fleet concedes Terminals never counseled or disciplined him
for taking bathroom breaks. He fails to satisfy the
third prong of the prima facie case.
the written counseling constitutes an adverse employment
action, there is no evidence of pretext. Mr. Fleet cites Jim
Thompson, a Caucasian intermodal service worker, who finished
a sandwich as a job safety meeting began but who did not
receive written counseling. Defendants explain Mr. Thompson
did not receive written counseling, receiving instead only
verbal correction by Mr. Gomez, because Mr. Thompson finished
eating as the meeting began.Mr. Fleet disputes this
reason, attributing the difference in treatment to Mr.
Gomez's "pattern of treating Caucasian workers more
favorably than African American workers
...." But Mr. Fleet does not adduce evidence
of a "pattern" of disparate treatment. Mr. Fleet
must point to some evidence in the record to "allow a
factfinder reasonably to infer that each of the
employer's proffered non-discriminatory reasons . . . was
either a post hoc fabrication or otherwise did not
actually motivate the employment action (that is, the
proffered reason is a pretext)." The
"factual dispute at issue is whether discriminatory
animus motivated" Terminals, not whether its decision is
wrong or mistaken, and Mr. Fleet must "demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions" in Terminals' "proffered
legitimate reasons that a reasonable factfinder could
rationally find them 'unworthy of
Fleet similarly fails to show pretext in his other claim of
discrimination - being followed to the bathroom by Mr. Gomez.
Mr. Fleet does not deny Mr. Gomez's responsibilities
include monitoring the work of intermodal service
workers. He does not deny Mr. Gomez followed or
"watched" other intermodal service
workers. Instead, he draws a distinction
between being followed and watched at work and being followed
to the bathroom. But Mr. Fleet points to no evidence,
aside from the bare allegation of his Declaration, Mr.
Gomez's following him to the bathroom is motivated by
discriminatory animus. To the contrary, the evidence shows
Mr. Fleet admits Mr. Gomez followed or watched other
intermodal service workers and Terminals never counseled or
disciplined him for taking a bathroom break.
Even if Mr. Fleet administratively exhausted his retaliation
claims, summary judgment is entered in favor of Defendants on
retaliation claims under § 1981, Title VII, PHRA, PFPO,
Fleet did not exhaust his administrative remedies on any
retaliation claim under §1981, Title VII, the PHRA, and
PFPO as required and we would grant summary judgment to
Defendants on those claims. Even if we found Mr. Fleet
exhausted his retaliation claims under these statutes, we
find he does not meet his burden on summary judgment.
Fleet asserts Defendants retaliated against him for filing a
complaint with the ethics hotline in November 2016 and
complaining to Mr. Gomez about race discrimination in the
decision to send him, but not Mr. Pote, home from work on
December 30, 2016. Mr. Fleet additionally claims Defendants
retaliated against him for taking intermittent FMLA leave
beginning November 2016.
apply the McDonnell Douglas burden-shifting
framework to retaliation claims.Retaliation claims
under § 1981 carry the additional requirement of showing
an underlying § 1981 violation.
establish a prima facie case of retaliation, Mr.
Fleet must show he (1) engaged in protected activity; (2)
Terminals took an adverse employment action against him; and
(3) there is a causal connection between Mr. Fleet's
participation in protected activity and the adverse
employment action. An "adverse action" in
retaliation claims is not limited to actions affecting the
"terms and conditions of employment"; rather, a
plaintiff can show an adverse employment action if "a
reasonable employee would have found the alleged retaliatory
actions 'materially adverse' in that they 'well
might have dissuaded a reasonable worker from making or
supporting a charge of
discrimination.'" "To establish the
requisite causal connection a plaintiff usually must prove
either (1) an unusually suggestive temporal proximity between
the protected activity and the allegedly retaliatory action,
or (2) a pattern of antagonism coupled with timing to
establish a causal link." In the absence of
proving either temporal proximity or a pattern of antagonism,
"a plaintiff must show that from the 'evidence
gleaned from the record as a whole' the trier of fact
should infer causation."
prima facie case for retaliation under the FMLA
requires Mr. Fleet to show (1) he is protected under the
FMLA; (2) he suffered an adverse employment action; and (3) a
causal relationship exists between the decision to terminate
him and the exercise of his FMLA rights.
Fleet establishes a prima facie case, the burden
shifts to Defendants to articulate a legitimate,
non-retaliatory reason for the adverse employment
action. If Defendants do so, the burden shifts
back to Mr. Fleet "to convince the factfinder both that
[Terminals'] proffered explanation was false [that is, a
pretext], and that retaliation was the real reason for the
adverse employment action."
Mr. Fleet's FMLA retaliation claim fails because there is
no causal relationship between his termination and exercise
of FMLA rights.
Fleet argues Mr. Lowe and Mr. Gomez put him out of service on
December 30, 2016 knowing Mr. Fleet took intermittent FMLA
leave in November and December 2016. Mr. Fleet contends the
December 30 verbal altercation with Mr. Pote arose because
Caucasian employees complained of Mr. Fleet's breaks. He
points to Mr. Gomez who testified at his deposition frequent
breaks "were getting to a point where it was hurting the
morale of the whole team." Mr. Fleet then reasons
"in an effort to increase the morale and alleviate the
morale issue, Defendant could certainly have
retaliated against Plaintiff and similarly situated
co-workers like Brian White, who used intermittent FMLA
conjecture. There is no evidence Mr. Gomez sent Mr. Fleet
home after the December 30 incident in retaliation for taking
FMLA leave. Mr. Fleet does not articulate a connection
between taking bathroom breaks and taking intermittent FMLA
leave. Although Mr. Fleet refers to Terminals firing an
African American Brian White for taking intermittent FMLA
leave, he adduces no evidence of the circumstances
surrounding Mr. White's termination. At his deposition,
Mr. Fleet admitted Mr. White had "some FMLA issues, and
he had some other disciplinary stuff going on" but
admittedly did not know "the exact extent of it, but I
do know about some of it being a part of his FMLA
situation." Mr. Fleet failed to develop evidence
regarding Mr. White during discovery.
evidence shows neither Hearing Officer Margol nor Labor
Relations Manager Griffin knew Mr. Fleet took FMLA leave, a
fact he does not dispute, but attempts to minimize by
attributing Mr. Gomez's and Ms. Beazley's knowledge
of FMLA leave into their hearing testimony considered by Ms.
Margol and Ms. Griffin in making their termination decision.
A review of the hearing transcript does not show reference by
either Mr. Gomez or Ms. Beazley to FMLA leave, and Mr.
Fleet's union representative did not question either Mr.
Gomez or Ms. Beazley about FMLA leave. Mr. Fleet fails to
show a causal relationship between the decision to terminate
him and the exercise of his FMLA rights.
Mr. Fleet's retaliation claims under § 1981, Title
VII, PHRA, and PFPO fail because he does not show a causal
connection between his protected activity and termination and
he fails to show pretext.
Fleet contends Defendants retaliated against him for filing a
complaint with the ethics hotline in November 2016 and
complaining to Mr. Gomez about race discrimination in the
decision to send him, but not Mr. Pote, home on December 30,
argue they are entitled to summary judgment on the
retaliation claims because Mr. Fleet's call to the ethics
hotline related to disability, not race, and even if
protected activity, Mr. Fleet cannot show retaliation; there
is no temporal proximity ...