SIMANDLE, District Judge:
I. INTRODUCTION
In this employment discrimination suit, plaintiff Donald Johnson claims that racial bias motivated the decision to fire him from his position as a Security Officer with defendant Trump Plaza Hotel Casino, Inc. ("Trump"), and that his termination therefore was a violation of Title VII of the Civil Rights Act. Presently before the Court is defendant's motion for summary judgment pursuant to Rule 56(c), Fed.R.Civ.P.
The primary issue to be decided for the purposes of the present motion is whether plaintiff, a black male, has provided sufficient evidence showing that the defendant discharged him because of his race. For reasons discussed below, the Court holds that plaintiff has failed to rebut Trump's proffered legitimate, nondiscriminatory reasons for discharge, and will grant defendant's motion for summary judgment.
II. BACKGROUND
Johnson worked as a Security Officer for Trump and its predecessor, Harrah's Marina Hotel Casino ("Harrah's"), from May 4, 1981 until his discharge in October 1995. (Pl.'s Br. in Opp'n at 1:1.) Johnson's duties as a Security Guard included keeping the hotel and casino premises secure, enforcing company security regulations, and guarding the transfer of money and chips from change booths to the main cage. (Id. at 1:2.)
The evidence discussed for the purposes of this motion to dismiss is drawn from the briefs, depositions, and exhibits of the parties. In deciding a motion for summary judgment the Court will (i) resolve conflicting evidence in favor of the nonmovant, (ii) not engage in credibility determinations, and (iii) draw all reasonable inferences in favor of the nonmovant. The movant has the burden of pointing out that evidence cognizable in a motion for summary judgment which the movant believes entitles it to summary judgment; the nonmovant must then respond by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the nonmoving party.
Pursuant to Trump personnel policies, Johnson received updated versions of a standard employee handbook provided to all Trump employees. (Def.'s Br. in Supp. of Sum. J. at 3:4.) Among the deeds prohibited by the handbook were disorderly conduct (including use of foul language or fighting), leaving assigned work areas, excessive absenteeism or tardiness, using Trump phones for personal reasons, discourtesy to guests, carelessness or negligence in the performance of duties, and failure to comply with departmental rules and procedures. Employees engaging in prohibited conduct were subject to disciplinary action up to and including dismissal. (Def.'s Ex. C at 1.)
In the ten years he worked for Trump, Johnson received nine (9) satisfactory annual employee performance reviews. (Pl.'s Br. in Opp'n at 2:12.) During this same period, however, Johnson also received eleven (11) separate warnings or notices for unsatisfactory performance and/or misconduct, seven (7) records of discussions for violations of company policy, and two (2) notices of attendance/lateness violations. Among the warnings Johnson received were several "last chance" notices that further misconduct would result in immediate termination. (Def.'s Br. in Supp. of Sum. J. at 3:6 to 8:26; Ex. G; Ex. S; Ex. V.)
Johnson's final notice of unsatisfactory performance came on October 1, 1995, after Johnson misplaced a two-way radio worth $400.00. According to plaintiff, he lost his radio after leaving it on a counter top, and immediately reported it to "base." (Pl.'s Dep. Tr. at 39.) Sometime before the end of his shift, Johnson maintains, another Security Officer found the radio. (Id. at 42.) Trump records contradict this, however, and show that the radio was not recovered until after plaintiff's shift was over. (Def.'s Ex. W.) Because this latter fact is contradicted, the Court must assume for the purposes of this motion that plaintiff's version is correct, namely, that he lost the radio and another security officer found it before the end of his shift. When questioned about the incident, Johnson explained that he had to put it down while filling coin containers, and that while doing so, he lost the radio. Trump fired Johnson on October 5, 1997, citing Johnson's "totally unsatisfactory performance", his performance generally, and lack of "care of company property" with respect to the lost radio. (Def.'s Ex. W.) The defendant's Personnel Action Form dated October 5, 1995, signed by the Managing Department Head, the Vice-President, and a Personnel Officer, indicated that Mr. Johnson was "terminated due to his many violations of company and department policy." (Id.) This documentation supports Trump's proffered reason for termination that the lost radio episode was merely the last of a long line of continuing violations.
Johnson filed the present lawsuit on December 23, 1997, alleging that his discharge was racially fueled, and thus in violation of Title VII of the Civil Rights Act. Defendant now moves this Court to grant its motion for summary judgment and to dismiss the suit.
Johnson contends that defendant's present motion, filed on September 27, 1999, is untimely and should not be considered. Although defendant filed the motion beyond U.S. Magistrate Judge Robert B. Kugler's September 30, 1998 deadline for dispositive motions, it should be noted that Judge Kugler's Order reserved to the District Court the discretion to hear dispositive motions not timely filed. The Court will hear the present motion because of the exceptional circumstances that did not allow defense counsel the opportunity to file this motion within the constraints of Judge Kugler's Scheduling Order. Namely, that (1) plaintiff sought extensive discovery in 1999 long after the Scheduling Order deadlines had expired, (2) discovery in this case was not completed until September 24, 1999, and (3) plaintiff was pro se until approximately March 1999, after which time this case began to move forward in a procedurally satisfactory manner due to the entry of appearance by counsel Vera McCoy, Esquire.
III. DISCUSSION
A. Summary Judgment Standard
Defendant argues that they terminated Johnson's employment because of his poor job performance, not because of his race. In considering defendants' present summary judgment motion, the Court must therefore decide whether Johnson has adduced sufficient evidence to create a genuine issue of material fact as to whether defendants discriminated against him in violation of Title VII. In a motion for summary judgment, the Court may grant such motion only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is "genuine" if it is supported by evidence upon which a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if a dispute about it might affect the outcome of the suit under the governing substantive law. Id. In deciding whether a genuine issue of material fact exists, the court must view the facts in the light most favorable to the nonmoving party and extend all reasonable inferences to that party.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The moving party always bears the initial burden of demonstrating the absence of a genuine issue of material fact, regardless of which party ultimately would have the burden of persuasion at trial. Celotex, 477 U.S. at 323. Once the moving party has met its opening burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. at 324. The nonmoving party may not rest upon the mere allegations or denials of its pleadings. Id. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "When the record is such that it would not support a rational finding that an essential element of the nonmoving party's claim or defense exists, summary judgment must be entered for the moving party." Turner v. Schering-Plough Corp., 901 F.2d 335, 341 (3d Cir. 1990) (emphasis in original).
B. Title VII Discrimination Standards
Johnson alleges discriminatory discharge in violation of Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000E(a)(1), thus that Act that provides the substantive law governing the present motion. The core anti-discrimination section of Title VII provides that:
It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment, because of such individual's race, color, religion, sex, or national origin.
42 U.S.C. § 2000E(a)(1). Thus, in order to successfully prosecute a claim under Title VII, Johnson must show that his discharge was based on his race.
Because Johnson has only indirect or circumstantial evidence that defendants discriminated against him on the basis of his race, the familiar McDonnell-Douglas Title VII burden-shifting rules apply. Under this framework, in a discriminatory discharge claim brought under Title VII, the initial burden of production is on the plaintiff to establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Sheridan v. E.I. Dupont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996) (en banc), cert. denied, 521 U.S. 1129 (1997). The phrase "prima facie case" means that the plaintiff's burden is to produce enough evidence to permit the trier of fact to infer the fact at issue.Burdine, 450 U.S. at 254, n. 7.
To meet the prima facie burden, a plaintiff must show: (1) he is a member of a protected class; (2) that he was qualified for the position from which he was discharged; and (3) that nonmembers of the class were treated more favorably. Weldon v. Kraft, Inc., 896 F.2d 793, 797 (3d Cir. 1990). Thus, a defendant in a discriminatory discharge case is entitled to summary judgment if the plaintiff fails under this standard to establish a prima facie case of discrimination. Jalil v. Avdel Corp., 873 F.2d 701, 707 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990);Stinson v. Delaware River Port Auth., 935 F. Supp. 531, 539 (D.N.J. 1996), aff'd without op., 124 F.3d 188 (3d Cir. 1997).
Once a plaintiff has established a prima facie case, the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the discharge. McDonnell-Douglas, 411 U.S. at 802-03; Burdine, 450 U.S. at 253; Hicks, 509 U.S. at 506-07. An employer satisfies this burden by introducing evidence which, taken as true, would permit a trier of fact to conclude that unlawful discrimination was not the reason for the discharge. Burdine, 450 U.S. at 254-56 and n. 8. However, an employer need not prove that the proffered reason actually motivated its behavior. Id. Instead, it is sufficient if the defendants' evidence raises a genuine issue of material fact as to whether it discriminated against the plaintiff. Id. at 254 n. 7.
Once an employer meets its burden of producing a legitimate, nondiscriminatory reason for plaintiff's dismissal, the burden of production shifts back to the plaintiff, who must show by a preponderance of the evidence that the employer's proffered explanation for the discharge is pretextual and that the employer's true motivation was discriminatory. McDonnell Douglas, 411 U.S. at 804-05; Burdine, 450 U.S. at 253, 256; Hicks, 509 U.S. at 507-08. "It is not enough . . . todisbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." Hicks, 509 U.S. at 519 (emphasis in original). However,
[B]ecause the factfinder may infer from the combination of the plaintiff's prima facie case and its own rejection of the employer's proffered nondiscriminatory reasons that the employer unlawfully discriminated against the plaintiff and was merely trying to conceal its illegal act with the articulated reasons, a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by
either (1) discrediting the proffered reasons, either circumstantially or directly, or (2) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action. Thus, if the plaintiff has pointed to evidence sufficiently to discredit the defendant's proffered reasons, to survive summary judgment the plaintiff need not also come forward with additional evidence of discrimination beyond his or her prima facie case.
Fuentes v. Perskie,
32 F.3d 759, 764 (3d Cir. 1994) (emphasis in original);
see also Sheridan, 100 F.3d 1065-72 (reaffirming summary judgment standard set forth in
Fuentes). A plaintiff can discredit an employer's explanation by demonstrating "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder
could find them unworthy of credence and hence infer that the employer did not act for [the asserted] nondiscriminatory reasons."
Fuentes,
32 F.3d at 765 (emphasis in original) (citations and internal quotes omitted). A defendant is entitled to summary judgment at this stage if the plaintiff has not produced sufficient evidence to rebut the defendant's proffered nondiscriminatory explanation for the discharge.
Sheridan,
100 F.3d at 1072.
1. First Stage: Plaintiff's Prima Facie Case of Discrimination
In this case, there is no dispute as to whether Johnson, a black male, is a member of a protected class. Instead, the defendant asserts that Johnson cannot fulfill the second element of the prima facie case. The thrust of this argument is that Johnson's poor performance shows that he was not qualified for the position from which he was fired. Despite the fact that Trump retained Johnson as a Security Officer after it took over Harrah's, defendant argues, Johnson was not qualified to be a Security Officer because, at the time he was fired, he had not been satisfactorily performing his job duties.
This argument is misplaced. Defendants' complaints about Johnson's performance are not sufficient to defeat his claim at the prima facie stage, for if they were, any employer could defeat a discrimination claim at the prima facie case stage simply by alleging that it was dissatisfied with the plaintiff's performance. The Court does not question Trump's prerogative to set any standards it wishes for employee performance nor does it seek to substitute another view of what constitutes adequate performance. The Court simply declines to treat a subjective assessment of Johnson's performance as evidence that he has failed to establish a prima facie case, thereby collapsing the entire analysis into a single initial step at which all issues are resolved. Weldon v. Kraft, Inc., 896 F.2d 793, 799 (3d Cir. 1990). The Court finds that Trump's decision to employ Johnson as a Security Guard establishes that he was objectively qualified for this position, and that Johnson therefore has fulfilled the second element of his prima facie burden. Whether poor performance was the real reason behind Johnson's discharge is best left to the pretext stage underMcDonnell-Douglas-Burdine.
The third element of the prima facie case is that nonmember of the protected class were treated more favorably. Plaintiff has cited evidence that a white Security Officer, Dan Dougherty, misplaced a radio similar to the one Johnson lost yet was not fired by Trump. (See Def.'s Br. in Supp. of Sum. J. at 9:32; Ex. Z.) Thus, according to plaintiff, Dougherty was not fired despite engaging in conduct arguably similar to that offered by Trump as part of its reason for firing Johnson. For this reason, the Court finds that Johnson has established the third and final element of his prima facie case of discrimination.
2. Second Stage: Defendants' Legitimate Reasons for Dismissal
Once a plaintiff has established a prima facie case, the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the discharge. McDonnell-Douglas, 411 U.S. at 802-03; Burdine, 450 U.S. at 253; Hicks, 509 U.S. at 506-07. An employer satisfies this burden by introducing evidence which, taken as true, would permit a trier of fact to conclude that unlawful discrimination was not the reason for the discharge. Burdine, 450 U.S. at 254-56 and n. 8. However, an employer need not prove that the proffered reason actually motivated its behavior. Id. Instead, it is sufficient if the defendant's evidence raises a genuine issue of material fact as to whether it discriminated against the plaintiff. Id. at 254 n. 7;Sheridan, 100 F.3d at 1070.
In this case, it is uncontested that Johnson misplaced his work-issued radio, an offense for which Johnson legitimately could have been fired. In addition to this justification, the defendant has produced ample evidence that Johnson was fired not only for misplacing the radio, but also for his lengthy history of violations of company policy and poor performance. A compilation of Johnson's workplace discipline citations is appended to Trump's brief, (Def.'s Ex. D through Ex. W), and include warnings against repeating behavior such as leaving work stations without permission, (Def.'s Ex. G), excessive absenteeism, (Def.'s Ex. H), discourtesy to guests, (Def.'s Ex. N), and arguing with fellow employees in view of guests, (Def.'s Ex. Q).
The Court finds that the numerous disciplinary citations and warnings cited by Trump, coupled with Johnson's loss of the radio, provide a legitimate, nondiscriminatory reason for Johnson's discharge. This nondiscriminatory rationale for the discharge rebuts Johnson's prima facie case of discriminatory discharge, and satisfies the second stage of the McDonnell-Douglas framework.
3. Third Stage: Pretext
Because Trump has met its burden of producing a legitimate, nondiscriminatory reason for Johnson's dismissal, the burden of production shifts back to Johnson, who must show by a preponderance of evidence that Trump's proffered explanation is pretextual. Johnson can show pretext by discrediting Trump's explanation to such an extent that a factfinder could find the proffered legitimate reasons unworthy of belief. Sheridan, 100 F.3d at 1072. Trump is entitled to summary judgment at this stage if Johnson has not produced sufficient evidence to rebut Trump's proffered nondiscriminatory explanation for the discharge. Id.
Plaintiff's counsel submits no affidavits or other evidence in opposition to defendant's summary judgment motion, other than attaching to her brief an excerpt of plaintiff's deposition testimony. In his deposition, Mr. Johnson claimed that he called somebody at his "base" to report that he lost his radio, although he cannot recall whom with he spoke. (Pl.'s Dep. Tr. at 39:14-21.) He stated that he was told that it was found during the same shift, but he refused to identify the name of the person who told him and Johnson did not learn from him or her where he had left the radio. (Id. Tr. 42:8-24.) Whether this hearsay is admissible need not be decided; the Court will consider plaintiff's version as true.
Although not raised in plaintiff's opposition brief, plaintiff had earlier claimed that defendant's reasons for terminating his employment were pretextual because a Caucasian employee, Dan Dougherty, who misplaced a radio a year later on June 20, 1996, was only reprimanded, not terminated. Defendant has established that Dougherty was not terminated because his employment record had been clear for almost five years before his radio incident, having been the subject only of two previous misconducts, one in August 1991 and the other in September 1991. Plaintiff has not refuted defendant's evidence that Dougherty's personnel record was essentially clear, and that his radio incident was an aberration, when compared with Johnson's record of repeated infractions, warnings and absenteeism.
After careful examination of the evidence in this case, the Court finds that Johnson has not met his burden of coming forward with evidence tending to show that Trump's proffered reasons are pretextual. As his response to Trump's extensive documentation of his poor workplace performance, Johnson focuses on the fact that he received fewer written warnings from his former employer, Harrah's, than from Trump. (Pl.'s Br. in Opp. at 2:13; 5-6.) Johnson contends that because Trump issued to him an "excessive number of `write-ups'", a jury should be allowed to decide whether the write-ups were "examples of management doing their job . . . or . . . a subtle form of harassment." Id. Johnson presents no evidence in support of this argument. His documented deficiencies in performance at Trump simply increased. Each write-up appears to have been carefully documented and unrefuted, describing employee misconduct that was substantial, repeated and prolonged.
Without evidence in support of his "subtle harassment" theory, Johnson has not rebutted Trump's proffered reasons for dismissal. Lacking circumstantial proof of Trump's concealed motives for issuing written warnings to Johnson, or some indication that the write-ups are a fabrication to cover up a pattern of harassment, Johnson's pretext argument is purely speculative, and does not create a genuine issue as to whether Trump's stated reasons are pretextual. Thus, Trump's proffered reasons for Johnson's termination remain un-rebutted, and Johnson has failed to carry his burden under the McDonnell-Douglas/Burdine/Hicks framework. There is, in essence, no evidence from which a reasonable factfinder could conclude that Mr. Johnson's race played a role in his termination from employment. Accordingly, the Court will grant Trump's motion for summary judgment in this case.
IV. CONCLUSION
For the foregoing reasons, the Court grants Trump's motion for summary judgment pursuant to Fed.R.Civ.P. 56(c). The accompanying order is entered.
O R D E R
This matter having come before the Court upon the motion of Defendant for summary judgment pursuant to Fed.R.Civ.P. 56(c); and the Court having considered the submissions of the parties; and for the reasons stated in the Opinion of today's date;
It is this day of October, 1999, hereby
ORDERED that Defendant's motion for summary judgment under Fed.R.Civ.P. 56(c) be, and hereby is, GRANTED.