ILORI v. CARNEGIE MELLON UNIVERSITY

271, 280-81 (3d Cir. 2000).

On April 23, 2004, CMU gave plaintiff a memorandum entitled "Department Discussions — Second Warning." The memorandum concerned plaintiff's continuing conduct of discussing "personnel" matters with employees who were not his supervisors. Plaintiff's protected activity occurred on April 5, 2004. A reasonable jury could conclude that eighteen days between plaintiff's protected activity and defendant's adverse employment action is sufficient to establish a causal connection. The finding is supported by the evidence of ongoing antagonism, including the probationary action taken against plaintiff three days later, the denial of leave in July 2004, Brush encouraging plaintiff to resign, and the extension of probation in August 2004. Plaintiff adduced evidence sufficient to demonstrate a genuine issue of material fact with respect to whether a causal link exists between his protected activity and the adverse employment actions. The court concludes a reasonable jury could find plaintiff established a prima facie case of retaliation.

2. Legitimate, nonretaliatory reason

Once a plaintiff establishes a prima facie case, the burden shifts to the defendant to rebut the presumption of retaliation and produce evidence the adverse employment action was taken for reasons that are legitimate and nonretaliatory.Delli Santi v. CNA Ins. Cos., 88 F.3d 192, 199 (3d Cir. 1996). The employer satisfies its burden of production by introducing evidence which, taken as true, would permit the conclusion that a nonretaliatory reason for the adverse employment decision existed. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). The defendant does not need to persuade the court that it was actually motivated by the reason which it offers.Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).

Defendants offer three reasons for the written warning given to plaintiff on April 23, 2004. First, plaintiff accused his co-worker John Zamperini of intentionally scheduling a training course to conflict with his schedule. Second, plaintiff requested a flex-time accommodation from Rittiger, who was not his supervisor at that time. Third, plaintiff failed to satisfy his performance objectives.

On March 31, 2004, plaintiff signed a draft of performance objectives for the period March 2004 through June 2004 which included, "[b]ecome a team player" and "[b]ecome proficient developing in Oracle Forms Reports within Oracle applications' architecture." (Defs.' App., Tab B at D-0221.) The objective regarding development of Oracle reports was also in plaintiff's March 2001, 2002, and 2003 performance reviews. On April 5, 2004, defendants gave plaintiff a revised version of the March 2004 objectives. Specifically, the objectives directed plaintiff to "become a RMIS team player." His evaluation objectives were:

Successfully contributes to group performance by completing tasks on time and as assigned, actively participates in team discussions, accepts technical direction and mentoring from senior team members, conforms to group standards for software development . . . and resolves issues within the team structure.

(J.C.S. ¶ 27.) Plaintiff missed a regularly scheduled meeting with Rigdon on April 12, 2004 after signing the draft performance objectives. The meeting was rescheduled for April 19, 2004, and plaintiff asserts he went to Rigdon's office and Rigdon was not there.

Plaintiff was allegedly disrespectful to Rigdon during a meeting on May 28, 2004 to review his progress on the vehicles module for ACIS. On June 1, 2004, Blair sent an email to plaintiff concerning the meeting, stating:

[Y]ou were disrespectful of your supervisor — this is not acceptable . . . you were argumentative even before the substantive discussion began . . . your behavior was extremely unprofessional affecting your ability to get the job done . . . you must be cooperative if we can proceed with mentoring and training . . . meetings with your supervisor are designed to be constructive and informative.

(Defs.' App., Tab B Ex. 15.) Defendants assert plaintiff's past conduct in the office, coupled with the behavior at the May 28, 2004 meeting, contributed to the "below expectations" rating Rigdon gave plaintiff on July 8, 2004.

Considering the burden on defendants is light, the court finds defendants set forth sufficient legitimate, nondiscriminatory reasons for the adverse employment actions taken against plaintiff.

3. Pretext

Once a defendant meets the low burden of establishing a legitimate, non-retaliatory reason for the adverse employment decisions, McDonnell Douglas requires the burden of production return to the plaintiff to show by a preponderance of the evidence that the employer's explanation is pretextual. Fuentes, 32 F.3d at 763. In order to survive summary judgment the plaintiff must satisfy at least one of two prongs explained inFuentes:

[T]he plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.

Id. at 764. By satisfying either prong, the plaintiff meets its burden of persuasion. Id. at 763.

a. Prong one

A plaintiff can satisfy the first prong, and overcome summary judgment, by submitting evidence that would cause a reasonable fact-finder to discredit the employer's articulated reason for the adverse employment action. Fuentes, 32 F.3d at 763. The plaintiff does not need to produce evidence that leads the court to conclude the employer acted for discriminatory reasons. Sempier v. Johnson Higgins, 45 F.3d 724, 728 (3d Cir. 1995). The plaintiff also need not produce additional evidence beyond his prima facie case. Fuentes, 32 F.3d at 764. The plaintiff must demonstrate:

Weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons [such] that a reasonable factfinder could rationally find them "unworthy of credence" and hence infer that the proffered nondiscriminatory reason "did not actually motivate" the employer's action.

Simpson v. Kay Jewelers Div. of Sterling, Inc., 142 F.3d 639, 644 (3d Cir. 1998) (quoting Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1993).

The court does not ask whether the employer made the best business decision, but rather whether the real reason for the adverse result suffered by the plaintiff is discrimination.Keller v. Orix Credit Alliance, 130 F.3d 1101, 1109 (3d Cir. 1997). The court is not permitted to set its own standards or consider the subjective business decisions of the employer, unless there is evidence of discrimination. Ezold, 983 F.2d at 527. "An employment decision that would create a problem under prong one will likely turn on whether the stated reason for [the adverse employment action] is so implausible that a fact-finder could not believe it to [be] worthy of credence." Orenge v. Veneman, No. 04-297, 2006 WL 2711651, at *15 (W.D. Pa. Sept. 20, 2006). In Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326 (3d Cir. 1995), the employer argued the reason for firing the employee was because of his poor sales performance, while the evidence showed the employee was the leading salesperson in the region. Id. at 330-32.

Here, plaintiff argues the poor performance reviews, warning letter, and probation actions were taken by Brush's subordinates (Blair, Rigdon, and Rittiger) to carry out Brush's April 7, 2004 directive to put plaintiff on probation or terminate him in light of Brush's April 5, 2004 meeting with plaintiff. Plaintiff argues he had no prior history of misconduct to justify probation. Plaintiff avers that he did not sign his performance objectives from March 2001 through March 2004. Plaintiff asserts a calendar malfunction was the reason he missed the April 12, 2004 meeting. Plaintiff argues he went to Rigdon's office for the rescheduled meeting on April 19, 2004 at 9:30 a.m., and Rigdon was not in her office. Plaintiff asserts he was not informed of the contents of statements he made concerning "personnel matters" for which he was being punished.

On April 5, 2004, Brush called Tademy and "was upset" and wanted to fire plaintiff. On August 31, 2004, after plaintiff's return from Qatar, Blair summarized her thoughts on the situation with plaintiff in an email sent to Brush, Rigdon, and Rittiger, stating:

1. We may never be in as strong a position for termination as we are right now. He was in a probationary period with well defined objectives. He failed to meet those objectives. It's documented and signed by all the parties.

2. Further attempts to `rehabilitate' him means we create new tasks and a new role for him. It may also require further training, additional time sink for mentoring from multiple, key staffers, and inordinate amounts of supervisory time. If we fail to provide any of these to some undefined, defensible degree, it may play against us.

3. Crafting new objectives creates the opportunity for Gideon to develop concrete deliverables and to meet the performance expectations. It may be more difficult to argue once forms, data structures, and other artifacts of the development process start appearing for which he can assume credit.

4. Any improvement in performance set us up for an on-going struggle as he decides when and if he will perform, suiting his own objectives.

5. Allowing him to stay on for any length of time provides an opportunity for additional grievance material to be accumulated. . . .

(Pl.'s App., Tab 1 Ex. 1.64.)

Viewing the evidence in the light most favorable to plaintiff, a reasonable jury could find defendants' stated reason "unworthy of credence" and infer that the alleged nonretaliatory reason did not motivate defendants' actions. While defendants produced well-documented evidence concerning plaintiff's performance measures, warnings, and probationary actions, all these actions occurred close in time to plaintiff's discrimination complaint to Brush. The record contains little evidence showing plaintiff was subject to probation or reprimand prior to his protected activity in April 2004. The only incident of record occurred on April 2, 2004, when Brush became infuriated with plaintiff for discussing personnel issues outside his supervisory escalation path. Brush's desire to terminate plaintiff and his subsequent threats are probative of retaliatory animus. Viewing Brush's statements in conjunction with Blair's reluctance to provide plaintiff additional opportunities for success, the warning letter, probationary action, and the removal of plaintiff from the ACIS system and his workspace, a genuine issue of material fact exists for a jury to decide whether the actions were pretextual.

Defendants assert their actions after the complaints cannot be construed as retaliation because plaintiff was reprimanded prior to the complaints. Defendants aver plaintiff's March 2004 performance objective — that plaintiff become a team player — is evidence of reprimand. The court finds this objective was just that — an objective. The directive to become a team player was a performance goal, not a reprimand or punishment, as compared to the probation action and poor performance review. There is no other evidence plaintiff was reprimanded prior to his complaints.

Viewing the facts in the light most favorable to the plaintiff and drawing all reasonable inferences in his favor, there is sufficient evidence for a reasonable jury to conclude defendants retaliated against plaintiff for engaging in protected activity. Plaintiff's retaliation claims under § 1981 and the PHRA survive summary judgment.

b. Prong two

Because plaintiff provided sufficient evidence to discredit defendants' reasons for the adverse employment action under prong one of the Fuentes test, the court will not address the second prong.

Conclusion

Summary judgment must be granted in favor of Brush with respect to plaintiff's PHRA claims because no reasonable jury could conclude that Brush was a named respondent in plaintiff's PHRC administrative complaints, or that plaintiff could satisfy the four Glus factors.

Viewing the evidence in a light most favorable to plaintiff, no reasonable jury could find plaintiff's PHRA or § 1981 race-based discrimination claim implicating a failure to promote was timely filed because plaintiff did not file a charge with the PHRC with respect to this claim during the relevant 180-day period and filed the § 1981 claim more than four years after the alleged failure to promote occurred. Summary judgment must be granted in defendant's favor with respect to those claims.

Plaintiff's remaining § 1981 claims for hostile work environment and retaliation were timely filed because plaintiff's alleged constructive discharge occurred during the applicable statute of limitations period. A reasonable jury could find the three Berry factors were satisfied and the continuing violation doctrine would apply.

Viewing all evidence in plaintiff's favor, no reasonable jury could find a race-based hostile work environment existed because plaintiff did not present evidence to show the alleged intentional discrimination was because of his race. Summary judgment must be granted in defendants' favor with respect to plaintiff's PHRA and § 1981 race-based hostile work environment claims.

After viewing the facts in the light most favorable to plaintiff, the court concludes with respect to plaintiff's PHRA retaliation claim against CMU and § 1981 retaliation claims against CMU and Brush that there are genuine issues of material fact with respect to those claims. Those claims will need to be resolved by a jury. The motion for summary judgment must be denied with respect to those claims. An appropriate order will be entered.

Date: September 23, 2010