NITZA I. QUIÑONES ALEJANDRO, District Judge.
This is an employment, race/retaliation discrimination case. Plaintiff David H. Fitzgerald ("Plaintiff") alleges in his complaint that Defendant National Railroad Passenger Corporation ("Defendant"), his present employer, discriminated against him in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("§ 1981").
On December 2, 2013, Plaintiff filed a complaint against Defendant essentially averring that Defendant discriminated against him on the basis of his race when it denied him numerous promotions between 2009 and 2013. [ECF 1]. Plaintiff also asserts that Defendant denied him promotions in retaliation for purportedly calling Defendant's Ethics and Compliance helpline in mid-August 2012 and lodging a complaint.
On August 31, 2015, Defendant filed the instant motion for summary judgment and a statement of material facts as to which there is no genuine dispute. [ECF 34]. Plaintiff opposed the motion for summary judgment, [ECF 40], and also filed an answer to Defendant's statement of material facts, in which he admits many of the facts material to the parties' dispute. [ECF 40-3]. As is required at the summary judgment stage, this Court will consider all relevant facts in this matter in the light most favorable to the non-moving party, i.e., Plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). These relevant facts are summarized as follows:
Federal Rule of Civil Procedure ("Rule") 56 governs the summary judgment motion practice. Fed. R. Civ. P. 56. Specifically, this rule 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." Id. 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). 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) 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 nonmoving 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 nonmoving 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. v. Zenith Radio Corp., 475 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.
As stated, Plaintiff avers that Defendant unlawfully discriminated against him in violation of § 1981 when Defendant denied Plaintiff various promotions for which he applied, allegedly because of his race and/or in retaliation for his complaints about racial discrimination. Defendant moves for summary judgment on each of Plaintiff's § 1981 claims on the grounds that Plaintiff has not, and cannot establish: (1) a prima facie case of racial discrimination or retaliation; and (2) that Defendant's articulated, legitimate and non-discriminatory reasons for not selecting Plaintiff for the challenged promotions were a pretext for racial discrimination. Defendant also argues that to the extent Plaintiff asserts claims premised on promotions he was denied before December 2, 2011, such claims are barred by the two-year statute of limitations. Each of these arguments is addressed below.
Plaintiff's failure to promote claim asserted under § 1981
Once a plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for the adverse employment action. McDonnell Douglas, 411 U.S. at 802. If the defendant satisfies this phase, the burden shifts back to the plaintiff to prove that the legitimate reason(s) offered by the 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, the plaintiff 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. To meet this burden, the plaintiff must "present evidence contradicting the core facts put forth by Defendant, the employer, as the legitimate reasons for its decision." Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005). The 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 the plaintiff to present evidence that suggests that unlawful discrimination was more likely than not a motivating or determining factor in the defendant's adverse employment actions. That is, the plaintiff must do more than show that the defendant's proffered reasons were wrong or mistaken. The plaintiff must demonstrate that the defendant acted with discriminatory animus. Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 283 (3d Cir. 2001). The plaintiff can meet this burden by pointing to evidence "that the employer has previously discriminated against [him], 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 his burden at the pretext stage, he must show with some specificity that the comparators were more favorably treated. Id. at 646.
Plaintiff alleges that Defendant failed to promote him as many as 48 times between 2009 and June 2013, because of his race.
A plaintiff makes out a prima facie claim by showing: (1) he is a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) the adverse employment action was made "under circumstances that give rise to an inference of unlawful discrimination." Waldron v. SL Indus., Ind., 56 F.3d 491, 494 (3d Cir. 1995) (citing Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). In a failure to promote case, such as this one, a plaintiff can establish the fourth element by demonstrating that a similarly situated individual from a non-protected class was promoted instead of plaintiff. O'Neal v. Brownlee, 2004 WL 2827052, at *6 (E.D. Pa. Dec. 9, 2004). A plaintiff's burden of establishing a prima facie case is not "onerous." Burdine, 450 U.S. at 253. However, a plaintiff must present evidence that "establish[es] some causal nexus between his membership in a protected class" and the adverse employment decision. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 798 (3d Cir. 2003). Here, Defendant argues only that the fourth element is not met, i.e., that Defendant's decision to not promote Plaintiff was made "under circumstances that give rise to an inference of unlawful discrimination."
In his opposition to Defendant's motion for summary judgment, and in an apparent attempt to meet this crucial element in support of his prima facie case for employment discrimination, Plaintiff points generally to a "Job File Summary" and other related documents contained in Plaintiff's Appendix, which he contends: "sets forth the race of the selectee, and indicates that despite his qualifications, Mr. Fitzgerald was interviewed for only five of the 37 positions for which he was qualified." (Pl's Opp'n at 9). Plaintiff argues that this evidence "demonstrates that the circumstances of his non-selections create an inference of discrimination." (Id. at 9).
Such an inference is even more particularly not reasonable here, where other evidence, including that offered by Plaintiff himself and otherwise undisputed, suggests that Defendant did not act with the requisite racial animus when it denied Plaintiff the challenged promotions. In particular, Plaintiff's own evidence shows, and he does not dispute, that several of the positions for which he applied were filled by applicants who themselves fell within protected classes. For example, Plaintiff himself points to the deposition testimony of Gary Lindenmuth to establish that Mr. Lindenmuth filled eight positions for which Plaintiff had applied, but was not selected. As Plaintiff readily admits, however, Mr. Lindenmuth's testimony also establishes that of these eight positions, four, or one-half, were filled by African Americans, and one was filled by a Hispanic.
The fact that several African American employees were chosen for the very positions that Plaintiff sought undercuts Plaintiff's claim that the decisions were motivated by racial animus. Indeed, it is "well established that an employer's favorable treatment of other members of a plaintiff's protected class is relevant in determining whether the employer was motivated by discriminatory intent." Santiago v. Brooks Range Contract Servs., Inc., 2014 WL 4930918, at *10 (E.D. Pa. Sept. 30, 2014); see also Ansell v. Green Acres Contracting Co., 347 F.3d 515, 524 (3d Cir. 2003) ("[E]mployer's favorable treatment of other members of a protected class can create an inference that the employer lacks discriminatory intent."); Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 354 (3d Cir. 1999) ("The fact that a female plaintiff claiming gender discrimination was replaced by another woman might have some evidentiary force and it would be prudent for a plaintiff in this situation to counter (or explain) such evidence."); Philips-Clark v. Phila. Housing Auth., 2007 WL 603039, at *6 n.10 (E.D. Pa. Feb. 22, 2007) (noting that the court must consider all available comparators, including those of the same race as plaintiff, in determining whether an adverse employment action was motivated by race); Hinshillwood v. Cty. of Montgomery, 2002 WL 253940, at *9 (E.D. Pa. Feb. 20, 2002) (finding that the plaintiff failed to establish a prima facie case under § 1981 when both African Americans and whites received favorable treatment and there was no evidence that the plaintiff was treated differently because of his race). In light of this undisputed evidence, and the complete absence of any evidence to support the existence of a racial animus, Plaintiff's discrimination claims fail.
Even assuming arguendo that Plaintiff had established a prima facie case, he has nevertheless failed to demonstrate that there is a genuine dispute of material fact as to whether Defendant's proffered legitimate, non-discriminatory reasons for not promoting him were pretext for discrimination based on race. As noted above, once a plaintiff sets forth a prima facie case of discrimination, the burden shifts to the employer to set forth a legitimate non-discriminatory reason for the challenged adverse employment actions. The burden placed on an employer to articulate a legitimate non-discriminatory reason for its employment action is "relatively light." Fuentes, 32 F.3d at 763. Indeed, "[t]he employer satisfies its burden of production by introducing evidence which, taken as true, would permit the conclusion that there was a non-discriminatory reason for the unfavorable employment decision." Id. at 763.
Here, Defendant argues that it has met its burden by presenting sufficient evidence to establish that Plaintiff was not selected for the challenged promotions because he was less qualified than the selected candidates. Defendant further argues that Plaintiff cannot show that the purported reasons for its decisions to select other candidates over Plaintiff were pretext for intentional race discrimination. This Court agrees. Notably, Plaintiff concedes that Defendant has met its summary judgment burden of proffering a legitimate, non-discriminatory reason for not promoting Plaintiff. (See Pl.'s Opp'n at 11 n.4).
Because Defendant has met its burden of setting forth a legitimate, non-discriminatory reason for its decision to not promote Plaintiff, the burden shifts back to Plaintiff to establish a genuine issue of material fact that Defendant's proffered reasons are merely pretextual. To overcome Defendant's stated reasons for its adverse employment actions, Plaintiff must present evidence that could lead a reasonable factfinder to either (1) disbelieve Defendant's articulated legitimate reasons for not promoting Plaintiff; 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. Plaintiff must point to evidence that would "allow a factfinder reasonably to infer that each of the employer's proffered nondiscriminatory reasons . . . was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext)." Id. (emphasis in original). The Third Circuit Court of Appeals has recognized that "[w]hile this standard places a difficult burden on the plaintiff, `[i]t arises from an inherent tension between the goal of all discrimination law and our society's commitment to free decision making by the private sector in economic affairs.'" Id. (citations omitted). It is not enough that the employer's decision was wrong or mistaken; rather, a plaintiff must demonstrate that "the employer's articulated reasons was . . . so plainly wrong that it cannot have been the employer's real reason." Jones v. Sch. Dist. of Phila., 198 F.3d 403, 413 (3d Cir. 1999). Thus, the inquiry is not "whether the employer is wise, shrewd, prudent or competent;" rather, the inquiry is "whether discriminatory animus motivated the employer." Fuentes, 32 F.3d at 765. Because "the prima facie case and pretext inquiries often overlap," the Court may consider the same evidence at both stages of the McDonnell Douglas analysis. Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 370 (3d Cir. 2008).
To refute Defendant's proffered legitimate, non-discriminatory reasons for selecting other candidates over Plaintiff for the various promotions, Plaintiff merely points to an alleged "promotion process" that "is fraught with opportunity for Hiring Managers to discriminate" and his contention that he was "as qualified for the positions as the selected candidate." (Pl.'s Opp'n at 11-12). Apart from these conclusory allegations, however, Plaintiff has not pointed to any record evidence that could support any discriminatory behavior by any hiring manager to support his, otherwise, bald theory. Moreover, the mere allegation that hiring managers had an opportunity to discriminate is not evidence that they, in fact, discriminated against Plaintiff. To hold otherwise would allow plaintiffs to meet their summary judgment burden on mere speculation.
As discussed above, other evidence, including that referenced by Plaintiff in his response to Defendant's statement of undisputed facts, supports the lack of any discriminatory animus underlying Defendant's decisions to not promote Plaintiff. In particular, Plaintiff himself points to, and readily concedes, that Mr. Lindenmuth (the only person Plaintiff identifies as having made the alleged discriminatory employment action) filled four of eight positions for which Plaintiff had applied with other African American candidates. As set forth above, such evidence "that an employer's favorable treatment of other members of the protected class is relevant in determining whether the employer was motivated by discriminatory intent." Santiago, 2014 WL 4930918, at *10; see also Ansell, 347 F.3d at 524 ("[E]mployer's favorable treatment of other members of a protected class can create an inference that the employer lacks discriminatory intent."). Here, it is undisputed that, at the same time Plaintiff contends that Defendant discriminated against him by not promoting him because of his status as an African American, Defendant promoted several other employees who were themselves African American. Indeed, Defendant selected African American candidates for the very positions for which Plaintiff now contends he was not selected because he was an African American. This favorable treatment of other members of Plaintiff's protected class creates an inference that Defendant's challenged conduct lacked discriminatory animus. In the absence of any evidence to the contrary, Plaintiff has not and cannot meet his burden as to pretext. Therefore, Plaintiff's discrimination claims fail.
In all, this Court concludes that Plaintiff has not put forth evidence "demonstrat[ing] such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in Defendant's reasons for its decisions to not promote Plaintiff, such that "a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the [Defendant] did not act for the asserted non-discriminatory reasons." Anderson, 621 F.3d at 277 (quoting Fuentes, 32 F.3d at 764-65). In light of the evidence of record, this Court finds that Plaintiff has failed to present sufficient evidence to allow a reasonable factfinder to conclude that Defendant treated Plaintiff "less favorably than others because of [his] race." Iadimarco v. Runyon, 190 F.3d 151, 163 (3d Cir. 1999).
Defendant argues that to the extent Plaintiff seeks to assert failure to promote claims premised on promotions to Assistant Supervisor positions for which he was not selected prior to December 2, 2011 (two years before Plaintiff filed his complaint), such claims are barred by the two-year statute of limitations. It is not entirely clear from Plaintiff's opposition whether he maintains independent claims for those positions for which he was denied prior to December 2, 2011. To the extent that he does, however, this Court agrees with Defendant that such claims are barred by the two-year statute of limitations.
Section 1981 does not contain an express statute of limitations. Prior to the enactment of a federal catchall, four-year statute of limitations period in 1991, the Supreme Court directed courts to apply the most appropriate or analogous state statute of limitations to claims based on violations of § 1981, which in Pennsylvania is the two-year limitations period for personal injury actions. Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987). The Supreme Court has since determined, however, that if a plaintiff's claims were cognizable under the pre-1991 version of § 1981, the claims are subject to application of Pennsylvania's two-year statute of limitations. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004). As such, whether a two or four-year limitation period applies to Plaintiff's failure to promote claims depends on whether the claims would have been cognizable under the pre-1991 version of § 1981.
Prior to the 1991 amendment, failure to promote claims were cognizable under § 1981, only if "the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer." Patterson v. McLean Credit Union, 491 U.S. 164, 185 (1989) ("[O]nly where the promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer is such a claim actionable. . . ."). A failure to promote claim arises under the original § 1981 and is thus subject to a two-year statute of limitations when the "promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer. . . ." Smith-Cook v. Nat'l R.R. Passenger Corp., 2005 WL 3021101, at *7 (E.D. Pa. Nov. 10, 2005). Thus, if a "new and distinct relation" between Plaintiff and Defendant would have resulted from his promotion, then the § 1981 claim would have been actionable prior to the 1991 amendment, and Pennsylvania's two-year statute of limitations period applies.
Here, Defendant argues, and this Court agrees, that had Plaintiff been given the challenged promotions to Assistant Supervisor for which he was denied between 2009 and December 2, 2011 (those that occurred more than two years prior to Plaintiff's complaint), the promotions would have resulted in a new and distinct relation between Plaintiff and Defendant because the new positions would have been governed by an entirely new contract and would have involved new supervisory authority and responsibility. Specifically, the terms and conditions of employment for the 2011 Assistant Supervisor position sought by Plaintiff were governed by a collective bargaining agreement between Defendant and the ARASA union. The terms and conditions of Plaintiff's existing positions at the time (Mechanic, Inspector, and Foreman), however, were governed by a CBA between Defendant and the Brotherhood of Maintenance of Way Employees (the "BMWE") union.
Plaintiff also claims that he was passed over for promotions in retaliation for his complaint in mid-August 2012 to Defendant's Ethics and Compliance hotline. (Pl.'s Opp'n at 12). In opposition to Defendant's motion for summary judgment on this claim, however, Plaintiff offers only his bald contention that "every selection made by Mr. Lindenmuth after August 2012 was retaliatory in view of Mr. Lindenmuth's admission that he was aware that Mr. Fitzgerald had complained about discrimination." (Id.). Such bald conclusions, however, without any citations to the evidentiary record, fall woefully short of Plaintiff's burden under Rule 56 to "cit[e] to particular parts of materials in the record" to support the existence of facts and evidence necessary to his claims. Plaintiff's failure to provide citations to record evidence sufficient to meet each element of his retaliation claim requires dismissal of this claim.
Notwithstanding, like Plaintiff's other discrimination claims, a retaliation claim is also subject to the McDonnell Douglas burden-shifting analysis. Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006). That is, Plaintiff must first establish a prima facie case of retaliation by showing that: (1) he engaged in a protected activity; (2) Defendant took a materially adverse employment action against him after or contemporaneous with Plaintiff's protected activity; and (3) there is a causal connection between his participation in the protected activity and Defendant's adverse action. Wilkerson v. New Media Tech. Charter Sch., Inc., 522 F.3d 315 320 (3d Cir. 2008). A causal connection between the protected activity and adverse action may be inferred from: (1) an unusually suggestive temporal proximity between the two; (2) an intervening pattern of antagonism following the protected conduct; or (3) the proffered evidence examined as a whole. Kachmar v. SunGuard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997). In addition, the Third Circuit has also held that in "a retaliation case a plaintiff must demonstrate that there had been an underlying section 1981 violation." Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 798 (3d Cir. 2010); see also Ellis v. Budget Maintenance, Inc., 25 F.Supp.3d 749, 753, 754 (E.D. Pa. 2014) (relying on Estate of Oliva to dismiss a plaintiffs § 1981 retaliation claim on summary judgment).
If Plaintiff establishes a prima facie case, the burden shifts to Defendant to advance a legitimate, non-retaliatory reason for its action. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997); Woodson v. Scott Paper Co., 109 F.3d 913, 920 n.2 (3d Cir. 1997). If Defendant meets this burden, the burden shifts back to Plaintiff to show pretext by providing evidence by which a factfinder could reasonably (1) disbelieve Defendant's proffered legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of Defendant's action. Fuentes, 32 F.3d at 764. Again, this requires Plaintiff to 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.
Defendant first argues that it is entitled to summary judgment on Plaintiff's retaliation claim because Plaintiff has failed to demonstrate an underlying § 1981 violation, as required by the Third Circuit's decision in Estate of Oliva, 604 F.3d at 798. This Court agrees. As set forth above, Plaintiff has failed to present evidence sufficient to meet his summary judgment burden on his underlying § 1981 retaliation claims. As such, pursuant to the Third Circuit's decision in Estate of Oliva, Plaintiff's retaliation claim fails.
Defendant also argues that Plaintiff's retaliation claim fails because Plaintiff has presented no evidence of a causal connection between his participation in any protected activity and any adverse employment action. Again, this Court agrees.
In support of Plaintiff's contention that he was passed over for promotions in retaliation for his complaint in mid-August 2012 to Defendant's Ethics and Compliance hotline, Plaintiff offers nothing other than his bald contention that "every selection made by Mr. Lindenmuth after August 2012 was retaliatory in view of Mr. Lindenmuth's admission that he was aware that Mr. Fitzgerald had complained about discrimination." (Pl.'s Opp'n at 12.). Most significantly, Plaintiff provides no evidence (beyond the mere assertion in his brief) that Mr. Lindenmuth was even aware that Plaintiff had complained about discrimination prior to the subsequent decisions in 2012 to not promote Plaintiff. In fact, Plaintiff's admissions show otherwise. Specifically, in responding to Defendant's statement of undisputed facts, Plaintiff admitted that: "Mr. Lindenmuth did not and does not know whether Plaintiff has complained to anyone at Amtrak about race discrimination." (Compare Defendant's Statement of Material Facts, at ¶ 45, and Plaintiff's Answer to Defendant's Statement of Material Facts, at ¶ 45). Besides this admission, Plaintiff provides no evidence that Mr. Lindenmuth (or any other decision maker) who made the challenged promotion decisions in 2012, was even aware that Plaintiff had lodged any sort of complaint. Having failed to present any such evidence, Plaintiff cannot establish that he was denied the 2012 promotions (or any other promotions) because of his complaint to the Ethics and Compliance hotline. Accordingly, Plaintiff's retaliation claim fails.
Based upon the foregoing reasons, Defendant's motion for summary judgment is granted. An Order consistent with this Memorandum Opinion follows.
