NITZA I. QUINONES ALEJANDRO, District Judge.
Before this Court is a motion for summary judgment filed by Soar Corporation ("Defendant") pursuant to Federal Rule of Civil Procedure (Rule) 56, which seeks the dismissal of the employment discrimination claims brought under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. §951 et seq., and the claims of retaliation and unpaid wages brought pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §201 et seq., the Pennsylvania Minimum Wage Act ("PMWA"), 43 P.S. § 333.101 et seq., and the Pennsylvania Wage Payment and Collection Law ("WPCL"), 43 P.S. § 260.1 et seq. [ECF 27]. Catherine Musa ("Plaintiff") filed a response in opposition, [ECF 30], and Defendant filed a reply memorandum. [ECF 32]. This motion for summary judgment has been fully briefed and is appropriate for consideration.
For the reasons stated herein, the motion for summary judgment is granted, in part, and denied, in part.
On May 22, 2013, Plaintiff filed a complaint against Defendant, her former employer. [ECF 1]. Defendant filed a motion to dismiss the complaint, [ECF 5], which Plaintiff opposed. [ECF 7]. By Order dated August 29, 2013, Defendant's motion to dismiss was granted, without prejudice. [ECF 8]. Plaintiff filed a motion to reconsider, [ECF9], which was granted, thereby permitting Plaintiff leave to file an amended complaint. [ECF 10].
On September 23, 2013, Plaintiff filed an amended complaint asserting claims of race and gender discrimination under Title VII and the PHRA, and claims of retaliation and failure to pay wages under the FLSA and the corresponding Pennsylvania statutes. [ECF 11]. On June 24, 2014, Defendant filed the instant motion for summary judgment.
Briefly, the facts relevant to Defendant's motion for summary judgment are as follows:
Rule 56(a) provides that summary judgment is appropriate "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." A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Cloverland-Green Spring Dairies, Inc. v. Pa. Milk Mktg. Bd., 289 F.3d 201, 210 (3d Cir. 2002) (quoting Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999)). Further, under Rule 56, the court must view the evidence in the light most favorable to the non-moving party. Galena v. Leone, 638 F.3d 186, 196 (3d Cir. 2011).
Rule 56(c) further provides that the movant bears the initial burden of informing the court of the basis for the motion and identifying those portions of the record which the movant "believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden can be met by showing that the non-moving party has "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case." Id. at 322.
After the moving party has met its initial burden, summary judgment is appropriate if the non-moving party fails to rebut the moving party's claim 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" that show a genuine issue of material fact or by "showing that the materials cited do not establish the absence or presence of a genuine dispute." See Rule 56(c)(1)(A-B). The nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 476 U.S. 574, 586 (1986). The nonmoving party may not rely on bare assertions, conclusory allegations or suspicions, Fireman's Ins. Co. of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982), nor rest on the allegations in the pleadings. Celotex, 477 U.S. at 324. Rather, the nonmoving party must "go beyond the pleadings" and either by affidavits, depositions, answers to interrogatories, or admissions on file, "designate `specific facts showing that there is a genuine issue for trial.' Id. Thus, a grant of summary judgment is appropriate where the moving party has established that there is no genuine dispute of material fact and the "moving party is entitled to judgment as a matter of law." Id. at 322; Rule 56(c).
Plaintiff claims that Defendant unlawfully discriminated against her on the basis of race and gender in violation of Title VII and the PHRA when terminating her employment. Under Title VII and the PHRA, it is unlawful for an employer "to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race [or] . . . sex." 42 U.S.C. §2002e2(a)(1); 43 Pa. C.S. §951 et seq.
A plaintiff can bring Title VII race and gender discrimination claims under either the indirect evidence burden-shifting framework set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), or under the "mixed-motive" direct evidence theory first introduced in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775 (1989). Under the traditional McDonnell Douglas framework, a plaintiff must first make a prima facie case of race or gender discrimination under Title VII by showing, by a preponderance of evidence, that she: (1) "is a member of a protected class," (2) is "qualified for the job from which she was discharged," and (3) "that others, not in the protected class, were treated more favorably." Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005); see also Scheidemantle v. Slippery Rock University, 470 F.3d 535, 539 (3d Cir. 2006).
When a plaintiff bringing a race discrimination claim under Title VII is not a member of a racial minority and is, instead, asserting a claim for "reverse discrimination," such as Plaintiff, the prima facie framework is modified such that she must show: (1) "sufficient evidence to allow a factfinder to conclude that the employer is treating some people less favorably than others based upon a trait that is protected under Title VII," and (2) that he or she has suffered an adverse employment action. Iadimarco v. Runyon, 190 F.3d 151, 161 (3d Cir. 1990).
Once Plaintiff establishes a prima facie case of discrimination, the burden shifts to Defendant "to articulate some legitimate, nondiscriminatory reason" for the adverse employment action. McDonnell Douglas, 411 U.S. at 802. If Defendant satisfies this phase, the burden shifts back to Plaintiff to prove that the legitimate reason(s) offered by Defendant are merely a pretext for discrimination. Fuentes v. Perskie, 32 F.3d 759, 804-05 (3d Cir. 1994). To make a showing of pretext, she must provide evidence "from which a fact-finder 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." Id. at 764.
Under Fuentes, Plaintiff must "present evidence contradicting the core facts put forth by the employer as the legitimate reasons for its decision." See Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005). Plaintiff must "demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence." Fuentes, 32 F.3d at 765. Fuentes further requires Plaintiff to present evidence that suggests that unlawful discrimination was more likely than not a motivating or determining factor in Defendant's decision to terminate her employment. That is, Plaintiff must do more than show that Defendant's proffered reason was wrong or mistaken. She must demonstrate that Defendant acted with discriminatory animus. Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 283 (3d Cir. 2001). Plaintiff can meet this burden by pointing to evidence "that the employer has previously discriminated against her, that the employer has discriminated against other persons within the plaintiff's protected class or within another class, or that the employer has treated more favorably similarly situated persons not within the protected class." Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d Cir. 1998). Where a plaintiff presents evidence of similarly situated non-class members to sustain her burden at the pretext stage, she must show with some specificity that the comparators were more favorably treated. Id. at 646.
As noted, a plaintiff may also bring a Title VII claim under the "mixed-motive" theory in which "an unlawful employment practice is established when the complaining party demonstrates that race, [or] . . . sex . . . was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. §2000e-2(m). In a "mixedmotive" case, the plaintiff must first show that a Title VII protected trait was a "substantial factor" in the defendant's employment decision. Fakete v. Aetna, Inc., 308 F.3d 335, 338 (3d Cir. 2002). A plaintiff can satisfy the "substantial factor" burden with "sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence that race [or] . . . sex . . . was a motivating factor for any employment practice." Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003). When the plaintiff has made a showing that a Title VII protected trait was a "substantial factor" in the defendant's decision, the burden shifts to the defendant to show its limited affirmative defense "that it would have taken the same action in the absence of the impermissible motivating factor." Makky v. Chertoff, 541 F.3d 205, 213 (3d Cir. 2008).
Under these legal principles, this Court will address Plaintiff's claims of gender and race discrimination, ad seriatim.
Plaintiff claims that she was unlawfully terminated from her employment in violation of Title VII and the PHRA and contends that she has presented sufficient evidence under both the "mixed motive" theory and the traditional McDonnell Douglas framework to substantiate her claim for gender discrimination.
To make out a prima facie claim of gender discrimination for purposes of the McDonnell Douglas framework, Plaintiff must show the that she: (1) is a member of a protected class; (2) was qualified for the position at issue; (3) was discharged; and (4) that either the position was ultimately filled by a person not of the protected class, Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1066 n. 5 (3d Cir. 1996), or that similarly situated non-protected persons were treated more favorably. Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 638 (3d Cir. 1993).
There is no dispute that Plaintiff has met the first three prongs. With regard to the fourth prong, Plaintiff must show that either the position was ultimately filled by a person not of the protected class or that similarly situated non-protected persons were treated more favorably. Although Plaintiff disputes which of the two women replaced her — an African American or a Caucasian woman — there is no dispute that she was replaced by a woman. Therefore, Plaintiff cannot show that she was replaced by a person not of the protected class.
Alternatively, Plaintiff makes no attempt to show that other similarly situated non, protected persons, i.e., males, were treated more favorably than she. See Scheidemantle, 470 F.3d at 539. To the contrary, Defendant has presented evidence to establish that male employees in the same position as Plaintiff were terminated for the same reasons that Defendant offers for Plaintiff's termination, i.e., low productivity. (See Defendant's Brief at p. 27). Because Plaintiff has not presented any facts or evidence to refute Defendant's evidence on this issue, Plaintiff has failed to establish a prima facie case of gender discrimination.
Under the "mixed-motive" theory, Plaintiff must first show that a Title VII protected trait was a "substantial factor" in the decision to terminate her employment. Fakete, 308 F.3d at 338. To meet this burden, Plaintiff must present "sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that . . . sex . . . was a motivating factor for any employment practice." Desert Palace, 539 U.S. at 101. In her attempt to comply, Plaintiff points to evidence that: (1) Stringer, a male supervisor, replaced another female employee (Roy), who was on temporary leave, with a male substitute (Marino) despite Roy's recommendation that one of two female employees (not Plaintiff) cover her duties during her absence; (2) Stringer was allegedly condescending and patronizing toward Plaintiff and other female employees; and (3) Stringer allegedly sexually harassed another female employee. If these allegations were found to be true, Plaintiff's proffered evidence might lead a reasonable factfinder to infer that a male supervisor treated females less favorably than males in the workplace, but these contentions provide no proof that gender played any role, let alone a "substantial" role, in Defendant's decision to terminate Plaintiff's employment. Cf. Garges v. People's Light & Theatre Company, 529 F. App'x 156, 162 (3d Cir. 2013) (affirming grant of summary judgment on plaintiff's gender discrimination claim under mixed motive theory because plaintiff failed to present evidence that gender was a motivating factor for her termination). Accordingly, Plaintiff's gender discrimination claim also fails under the mixedmotive theory.
Plaintiff also asserts that her employment was wrongfully terminated because of her race in violation of Title VII. This claim, like her gender discrimination claim, is governed by the McDonnell Douglas burden-shifting framework, and can also be established under the "mixedmotive" theory. However, when a plaintiff brings a so-called "reverse discrimination" claim, as Plaintiff does here, the prima facie elements are modified such that Plaintiff must show (1) "sufficient evidence to allow a fact finder to conclude that the employer is treating some people less favorably than others based upon a trait that is protected under Title VII," and (2) that the plaintiff has suffered an adverse employment action. Iadimarco, 190 F.3d at 161.
To meet her burden of race discrimination under both the mixed-motive theory and the McDonnell Douglas framework, Plaintiff relies on statements made by two supervisors, Besden and Stringer, both Caucasian, regarding Defendant's need to diversify its staff to accommodate Defendant's contract and referrals from CBH, its commitment to increase diversity within its employment ranks to better reflect and meet the needs of the surrounding community made in its various CBH proposals, and the purported change in Defendant's racial demographic of its counseling staff in 2011. Plaintiff's reliance on this evidence, however, is insufficient to meet her summary judgment burden.
As the Third Circuit recognized in Iadimarco, having a diverse workforce does not violate Title VII: "an employer has every right to be concerned with the diversity of its workforce, and the work environment." Id. at 164. Employer initiatives to increase racial diversity within a workplace in order to "enable [an organization] to effectively service an increasingly diverse customer base" are lawful "to say nothing of the laudable goal of expanding the horizons of opportunity for more and more members of this great pluralistic society." Reed v. Agilent Technologies, Inc., 174 F.Supp.2d 176, 186-87 (D. Del. 2001). Unless a plaintiff can demonstrate that a defendant employer's "approach to diversity had some negative impact upon his individual employment situation, the mere existence of a policy promoting diversity awareness is not evidence of discrimination" under Title VII. Id. at 185; see also Opsatnik v. Norfolk Southern Corp., 2008 WL 763745, at *11 (E.D. Pa. March 20, 2008) (holding that "to use diversity concerns, without more, as evidence of discrimination would be irresponsible."), aff'd, 335 F. App'x 220 (3d Cir. 2009); Lutes v. Goldin, 62 F.Supp.2d 118, 132 (D.D.C. 1999) (holding that the plaintiff's failure "to link the existence of the [diversity] Plan to his individual claims of employment discrimination is fatal to his Title VII claim.").
Further, Plaintiff has not shown that Defendant's diversity goals, as evinced by Plaintiff's cited evidence, had any direct effect on Defendant's decision to terminate Plaintiff. For example, Plaintiff was unable to identify a single Caucasian counselor at Defendant who was fired and replaced by a minority. To the contrary, Defendant introduced uncontradicted evidence showing that it actually hired Caucasian counselors and fired minority counselors during the very period of time that Defendant was allegedly seeking to diversify its staff Specifically, the evidence shows that Defendant hired 10 Caucasians, eight African Americans and one Latina and terminated the employment of five Caucasians (including Plaintiff) and two African Americans. These employment decisions resulted in a net gain of five employees who were Caucasian and six employees who were not. This margin of one more minority employee cannot be reasonably interpreted as evidencing that Defendant terminated Plaintiff because of her race.
Also overlooked by Plaintiff is the fact that she herself was hired on January 24, 2011, during the very period she alleges Defendant had determined to unlawfully increase its make-up of minority employees in response to contract proposals from CBH. In addition, Defendant hired at least one Caucasian female; Charlene Agnew, just days after Plaintiff's employment was terminated, who Mruk testified was Plaintiff's replacement.
Under the totality of circumstances, no reasonable factfinder can conclude that race was a motivating factor for Defendant's decision to terminate Plaintiff's employment. In light of these facts, this Court finds that Plaintiff has failed to present:
Plaintiff has not produced sufficient evidence to show that Defendant's decision to terminate her employment was in any way motivated by her race or by her gender.
In addition, this Court finds that Plaintiff has not failed to rebut Defendant's proffered legitimate reasons for her dismissal. To overcome Defendant's stated reasons for terminating her employment, Plaintiff must present evidence that could lead a reasonable factfinder to either (1) disbelieve defendant's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of defendant's actions. Fuentes, 32 F.3d at 764.
Here, Defendant has stated that the reasons for terminating Plaintiff's employment were: her low productivity, low patient numbers, and insufficient or deficient client information and/or documentation. Though Plaintiff disputes whether Defendant's proffered reasons for terminating her employment were the real reasons she was terminated, she does not dispute that at least some of the cited performance-related deficiencies in fact existed. For example, Plaintiff admitted that she never had the required 100 hours of counseling sessions in any particular month and that she was behind on her required client documentation. In light of these admissions and the lack of any evidence refuting Defendant's articulated legitimate non-discriminatory reasons, Plaintiff has failed to provide evidence "from which a fact-finder 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." Id. at 764.
Plaintiff asserted a claim of retaliation under the Fair Labor Standards Act contending that she was terminated in retaliation for her complaints about how her time was recorded and other work-related issues. This claim is also subject to the McDonnell Douglas burden-shifting framework. Cononie v. Allegheny Gen. Hosp., 29 F. App'x 94, 95 (3d Cir. 2002); Jones v. Judge Technical Services, Inc., 2013 WL 5777159, at *7 (E.D. Pa. Oct. 25, 2013). Thus, to establish a prima facie case of retaliation, Plaintiff must present evidence to show that: (1) she engaged in activity protected under the FLSA; (2) she suffered an adverse employment action; and (3) a causal connection exists between this protected activity and the employer's adverse action. Id. Once a plaintiff establishes a prima face case of retaliation, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for the adverse employment action. Id. The burden then shifts back to the plaintiff to present evidence from which a reasonable factfinder could disbelieve the employer's articulated reasons or find that such reasons were merely a pretext for retaliation. Id.
While it may be possible for Plaintiff to establish that she engaged in activity protected under the FLSA and that she subsequently suffered an adverse employment action, for the same reasons noted in the above analysis on the race and gender discrimination claims, Plaintiff cannot establish the existence of a causal connection between the protected activity and the termination of her employment. Therefore, her retaliation claim fails.
Notwithstanding, assuming arguendo that Plaintiff has offered sufficient evidence to establish a prima facie case of retaliation under the FLSA, for the same reasons set forth above, Plaintiff's retaliation claim falls short because she has failed to present evidence from which a reasonable factfinder could find that she sufficiently rebutted Defendant's legitimate, nondiscriminatory reasons for her termination.
Plaintiff also asserts claims for unpaid wages under the FLSA and the analogous Pennsylvania statutes, based on her contention that Defendant failed to pay her for overtime hours worked. Pursuant to the FLSA, an employer must pay employees who work more than forty (40) hours in a given week overtime at a rate of one and a half times their regular pay. 29 U.S.C. §207(a)(1). A plaintiff asserting an overtime claim under the FLSA or Pennsylvania equivalent bears the burden of proving that work was performed and not appropriately paid. Sniscak v. Borough of Raritan, 86 F. App'x 486, 487 (3d Cir. 2003). "An employee satisfies the burden of proof if he or she produces enough evidence to permit a court to make a fair and reasonable inference that the employee performed work for which he or she received improper compensation." Rongchen v. Century Buffet & Rest., 2012 WL 113539, at *6 (D.N.J. Jan. 12, 2012). A plaintiff's sworn testimony is sufficient to meet her prima facie burden. Id.; see also Reich v. Gateway Press, Inc., 13 F.3d 685, 702 (3d Cir. 1994); Martin v. Selker Brothers, Inc., 949 F.2d 1286, 1297-98 (3d Cir. 1991). Where a plaintiff sufficiently adduces evidence that she worked overtime hours for which she was not compensated, the burden shifts to the defendant employer to provide evidence of the exact amount of time worked, or evidence that otherwise negates the inference to be gleaned from the plaintiff's evidence. Id.
Defendant argues that Plaintiff has failed to meet her initial burden of presenting evidence from which a factfinder could conclude that she was not compensated for overtime worked. Defendant's argument, however, focuses on Plaintiff's inability to testify precisely to the number of overtime hours worked during the relevant time period. Notwithstanding her imprecision, Plaintiff testified that she worked overtime hours for which she was not paid the requisite overtime rate of pay; to wit:
Though the parties dispute Plaintiff's allegation of uncompensated overtime worked and the accuracy of Defendant's time-keeping records, Plaintiff's testimony is sufficient to raise a genuine issue of material fact on this uncompensated pay issue and, thus, to overcome summary judgment. Therefore, Defendant's motion for summary judgment as to Plaintiff's unpaid wages claims is denied.
For the reasons stated herein, Defendant's motion for summary judgment is granted as to only Plaintiff's claims of race and gender discrimination and retaliation; and denied, as to Plaintiff's claim for overtime compensation under the FLSA and Pennsylvania's, related statutes. An order consistent with this memorandum opinion follows.
