DOE v. APRIA HEALTHCARE GROUP INC.

Filing 21

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 4/10/15. 4/10/15 ENTERED AND COPIES E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PONSFORD P. DOE,
Plaintiff,
v.
APRIA HEALTHCARE GROUP INC.,
Defendant.

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CIVIL ACTION
No. 13-4204

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

April 10, 2015

Plaintiff Ponsford P. Doe brings this race
discrimination action against his former employer, Defendant
Apria Healthcare, Inc. Plaintiff claims his employment was
terminated on the basis of his race, in violation of 42 U.S.C.
§ 1981. In addition, he claims Defendant retaliated against him
for complaining of Defendant’s alleged racial discrimination in
the workplace, also in violation of § 1981. Defendant has moved
for summary judgment and, for the reasons that follow, the Court
will grant the motion in part and deny it in part.

I.

FACTUAL BACKGROUND1 AND PROCEDURAL HISTORY
In 2010, Defendant, a home respiratory services and

medical equipment provider, Def.’s Br. 1, brought Plaintiff, an
African American male, on as a temporary worker and later hired
him as a full-time employee based on the quality of his work.
Am. Compl. ¶ 7. Plaintiff was a “filler,” whose job
responsibilities included filling cylinders with liquid oxygen,
a product regulated by the United States Food and Drug
Administration (“FDA”). Def.’s Br. 1. Plaintiff alleges
discrimination by his supervisors, including: (1) not allowing
non-white employees to use the bathrooms outside of breaks
without special permission (while white employees were free to
use them); (2) reprimanding non-white employees for speaking
during working hours (while white employees were free to speak);
and (3) requiring non-white employees to change into work gear
before clocking in while allowing white employees to clock in
before changing. Am. Compl. ¶ 8
After becoming a full-time employee, Plaintiff
complained of the discriminatory behavior to his supervisor, who
told Plaintiff that “if he didn’t like the rules that he should
leave.” Id. ¶ 10. Plaintiff claims that in November 2010 he was

1

In accordance with the appropriate standard of review
for motions for summary judgment, the Court views the facts in
the light most favorable to Plaintiff as the nonmoving party.
2

called a “monkey” by a coworker but supervisors took no action.
Id. ¶ 12. In June 2011 Plaintiff submitted an electronic
workplace survey complaining of discrimination and insufficient
advancement opportunities. Id. ¶ 13. In July 2011, allegedly due
to his survey comments and the quality of his work, he was
promoted to a position of greater responsibility. Id. ¶ 14.
Throughout this time, Defendant’s employees continued their
discriminatory conduct, about which Plaintiff complained to his
supervisors periodically. Id. ¶ 16.
“On or about September 4, 2012, Plaintiff was called
into the supervisor’s office, where he was informed that he had
made record-keeping mistakes and that he was discharged.” Id.
¶ 17. Plaintiff allegedly requested to see the mistakes, but his
supervisor denied his request and ordered him to leave the
premises. Id. ¶¶ 18-19. Plaintiff believes that these mistakes
were pretextual and his termination actually resulted from
unlawful racial discrimination and retaliation. Id. ¶ 22.
Accordingly, Plaintiff’s pleads the following claims:
hostile work environment (Count I),2 unlawful termination (Count
II), and retaliation (Count III). Id. ¶¶ 25-27. On July 19,
2013, Plaintiff filed his Complaint (ECF No. 1) in federal

2

In his response to Defendant’s Motion for Summary
Judgment, Plaintiff withdraws his hostile work environment
claim. Pl.’s Br. 12. The Court will not consider it further.
3

court, which he amended on August 22, 2013 (ECF No. 3). On
October 11, 2013, Defendant filed its Amended Answer. ECF No.
10. After obtaining discovery, Defendant filed a Motion for
Summary Judgment on August 21, 2014 (ECF No. 18), to which
Plaintiff responded on September 15, 2014 (ECF No. 19). The
motion is ripe for disposition.
II.

STANDARD OF REVIEW
Summary judgment is appropriate if there is no genuine

dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion
for summary judgment will not be defeated by ‘the mere
existence’ of some disputed facts, but will be denied when there
is a genuine issue of material fact.” Am. Eagle Outfitters v.
Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A
fact is “material” if proof of its existence or nonexistence
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, 477 U.S. at
248.
The Court will view the facts in the light most
favorable to the nonmoving party. “After making all reasonable
inferences in the nonmoving party’s favor, there is a genuine

4

issue of material fact if a reasonable jury could find for the
nonmoving party.” Pignataro v. Port Auth., 593 F.3d 265, 268 (3d
Cir. 2010). While the moving party bears the initial burden of
showing the absence of a genuine issue of material fact, meeting
this obligation shifts the burden to the nonmoving party who
must “set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 250.
III. DISCUSSION
A.

Unlawful Termination
1.

Legal Standard

Section 1981 “prohibits racial discrimination in the
making and enforcement of private contracts,” including
employment contracts. Patterson v. McLean Credit Union, 491 U.S.
164, 172 (1989), superseded in part on other grounds by 42
U.S.C. § 1981(b). This statutory prohibition includes “postcontract-formation conduct,” such as unlawful termination or
other adverse actions that may occur during an employee’s
tenure. CBOCS West, Inc. v. Humphries, 553 U.S. 442, 451 (2008).
“In order to prevail under § 1981, a plaintiff must
prove purposeful discrimination,” Patterson, 491 U.S. at 186-discriminatory intent by another name. Here, Plaintiff offers no
direct evidence of such intent, but rather relies on indirect

5

evidence.3 Where only indirect evidence is available, courts
analyze § 1981 discrimination claims according to the three-step
burden-shifting framework set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-05 (1973). See Patterson, 491 U.S.
at 186.
Under McDonnell Douglas, the plaintiff must first make
out a prima facie case of discrimination by establishing four
factors: (1) he belongs to a protected class; (2) he was
qualified for his job; (3) he suffered an adverse employment
action; and (4) the circumstances give rise to an inference of
intentional discrimination. Makky v. Chertoff, 541 F.3d 205, 214

3

Plaintiff believes the evidence in this case is strong
enough to support a mixed-motivation theory under Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded by
statute as recognized by Burrage v. United States, 134 S. Ct.
881 (2014). In order to so proceed, Plaintiff must clear a “high
hurdle” by offering evidence “strong enough to permit the
factfinder to infer that a discriminatory attitude was more
likely than not a motivating factor in the [defendant’s]
decision,” as well as evidence “connected to the decision being
challenged by the plaintiff.” Anderson v. Wachovia Mortg. Corp.,
621 F.3d 261, 269 (3d Cir. 2010) (alteration in original)
(internal quotation marks omitted). Here, Plaintiff admits he
does not know if Defendant had a discriminatory motive when it
terminated him. Def.’s Br. Ex. B, Ponsford Doe Dep. 264:15265:11, June 26, 2014. As discussed below in the context of the
retaliation claim, the only direct statement pertinent to his
employer’s alleged animus (i.e., “if you don’t like the way we
operate things here, you can find another job or you can quit,”
Pl.’s Br. 3) cannot be causally linked to the termination.
Accordingly, Plaintiff’s evidence is circumstantial in nature
and the Court properly evaluates it under the burden-shifting
framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), rather than under the mixed-motivation framework.
6

(3d Cir. 2008) (citing McDonnell Douglas, 411 U.S. at 802). The
burden of establishing a prima facie case need not be onerous,
as its purpose is simply “to eliminate the most obvious, lawful
reasons for the defendant’s action.” Pivirotto v. Innovative
Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999). Nevertheless, that
purpose is important, and a plaintiff must present evidence of
each element in order to obtain relief. Tex. Dep’t Cmty. Affairs
v. Burdine, 450 U.S. 248, 253-54 (1981).
Second, once the plaintiff has established his prima
facie case, the burden of production shifts to the defendant
employer to “articulate some legitimate, nondiscriminatory
reason for the employee’s rejection.” McDonnell Douglas, 411
U.S. at 802; see also Burdine, 450 U.S. at 255 (“It is
sufficient if the defendant’s evidence raises a genuine issue of
fact as to whether it discriminated against the plaintiff.”);
Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 271 (3d Cir.
2010) (noting that defendant only has a burden to produce a
legitimate reason, and that “defendant need not even prove that
the tendered reason was the actual reason for its behavior”).
Finally, if the employer is able to provide a reason,
the plaintiff must now show that the proffered reason is merely
a pretext. McDonnell Douglas, 411 U.S. at 805. The plaintiff
must provide rebutting evidence which would allow a “factfinder
reasonably to infer that each of the employer’s proffered non7

discriminatory reasons was either a post hoc fabrication or
otherwise did not actually motivate the employment action.”
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (citation
omitted). The plaintiff can satisfy her burden at the summary
judgment stage by “demonstrat[ing] such weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions” in the employer’s explanation for its action
“that a reasonable factfinder could rationally find them
‘unworthy of credence.’” Id. at 765 (quoting Ezold v. Wolf,
Block, Schorr & Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992)).
Notably, “throughout this burden-shifting paradigm the ultimate
burden of proving intentional discrimination always rests with
the plaintiff.” Id. at 763.
2.

Analysis

Here, as is typical, the first three elements of
Plaintiff’s prima facie case are undisputed. First, Plaintiff,
as an African American, is a member of a protected class under
§ 1981. Second, his performance evaluations indicate that he was
a satisfactory worker. See Def.’s Br. Ex. F (showing an overall
performance of “achieves expectations” for 2010-2011); id. Ex. G
(showing an overall performance of “achieves expectations +” for
2011-2012). Third, Plaintiff was terminated on September 4,

8

2012. See id. Ex. N (showing Plaintiff’s Termination Corrective
Action Plan).
Plaintiff advances several arguments in order to show
causation, the fourth element. He describes a work environment
in which black employees were held to work rules that white
employees could violate with impunity. Pl.’s Br. 13. He submits
that the error for which he was terminated “remains completely
unexplained.” Id. He contends that Defendant never formally
investigated the incident that led to his termination, in
violation of internal and FDA regulations. Id. Finally, he
argues that the incident implicated a similarly situated white
coworker who was not terminated. Id. at 13-14.
Because most of Plaintiff’s arguments for causation
are bound up with Defendant’s explanation of the incident, the
Court assumes arguendo that Plaintiff’s evidence establishes a
prima facie case of discrimination and proceeds to the next step
in the McDonnell Douglas analysis, in which the Court determines
whether Defendant has proffered a legitimate, nondiscriminatory
reason for Plaintiff’s termination. McDonnell Douglas, 411 U.S.
at 802.
According to Defendant, Plaintiff was terminated for
“his careless mislabeling of over 630 FDA-regulated oxygen
cylinders and Fill Logs,” a mistake which “exposed Apria to
significant liability.” Def.’s Br. 36; see also id. Ex. M
9

(Termination of Employment for Cause memorandum); id. Ex. A,
Supervisor William Crocker Dep. 265:20-266:10, June 16, 2014.
Defendant states that Plaintiff’s errors were well documented,
see id. Ex. I (oxygen fill records); id. Ex. K (building
operations manager’s notes); id. Ex. M (Termination of
Employment for Cause memorandum), and the Human Resources
Director--who did not know Plaintiff--reviewed the documentation
and approved the termination, see id. at 36; see also id. Ex. L,
Human Resources Director John Coleman Dep. 20:10-15, 32:16-34:2,
54:21-56:18, July 7, 2014; id. Ex. B, Ponsford Doe Dep. 264:1720, June 26, 2014. According to Plaintiff’s supervisor and
others involved, Plaintiff’s mistake was of sufficient magnitude
to justify his termination. See id. at 37; Crocker Dep. 241:1-2
(“In 24 years I never seen nothing of this magnitude.”); see
also id. Ex. J, Building Operations Manager Ronnie Edward Smith
Dep. 65:6-10, June 20, 2014; id. Ex. C, Quality Control Unit
employee Joseph Vitellaro Dep. 188:2-7, June 25, 2014.
Because Defendant has articulated a legitimate,
nondiscriminatory reason for Plaintiff’s termination, the Court
proceeds to evaluate whether this reason is a pretext and
whether unlawful discrimination is the real reason for the
termination. McDonnell Douglas, 411 U.S. at 805. At this final
stage of the McDonnell Douglas framework, Plaintiff “has ‘the
full and fair opportunity to demonstrate’ . . . ‘that the
10

proffered reason was not the true reason for the employment
decision,’ and that [a discriminatory reason] was.” St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993) (quoting
Burdine, 450 U.S. at 255 n.10, 256). At the pretext stage, the
Court’s “factual inquiry proceeds to a new level of
specificity.” Burdine, 450 U.S. at 255.
Plaintiff advances his pretext argument by alleging
inconsistencies in the circumstances surrounding his
termination,4 particularly Defendant’s decision to merely
reprimand a similarly situated white employee. Plaintiff
contends that Joseph Vitellaro, a white male, also bore
responsibility for the error because he was the only Quality
Control Unit employee on duty at the time, but that Vitellaro
merely received a written warning. Pl.’s Br. 14, 18; see also
Def.’s Br. 12 (noting Vitellaro received a “Final Written
Warning”). Plaintiff thus attempts to show pretext by

4

These inconsistencies include the improbability of the
error occurring in the way Defendant describes it, the ability
of Plaintiff’s supervisor to influence Human Resource’s approval
of the termination, Defendant’s inadequate post-incident
investigation, Defendant’s failure to initially report
Vitellaro’s involvement in the incident, and Defendant’s
racially discriminatory work environment. Pl.’s Br. 13-14, 1718. While a perusal of the record indicates that Plaintiff at
times overstates the evidence supporting these claims, they may
yet reinforce his position. In any event, the Court will not
consider these arguments as the similarly situated evidence
described in the main text below is sufficient for Plaintiff to
withstand summary judgment on this claim.
11

demonstrating that Defendant “has treated more favorably
similarly situated persons not within the protected class.”
Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639,
645 (3d Cir. 1998). “Although [the Third Circuit] has not
explicitly stated what constitutes a similarly situated
employee, we accept the standard used by other circuits that to
be considered similarly situated, comparator employees must be
similarly situated in all relevant respects.” Wilcher v.
Postmaster Gen., 441 F. App’x 879, 881-82 (3d Cir. 2011) (citing
Russell v. Univ. of Toledo, 537 F.3d 596 (6th Cir. 2008); Lee v.
Kansas City S. Ry. Co., 574 F.3d 253, 259-61 (5th Cir. 2009)).5
In Lee, the Fifth Circuit held that employees are similarly
situated in all relevant respects when they “held the same job
or responsibilities, shared the same supervisor or had their
employment status determined by the same person, and have
essentially comparable violation histories.” 574 F.3d at 260.
“And, critically, the plaintiff’s conduct that drew the adverse
employment decision must have been ‘nearly identical’ to that of

5

The Third Circuit has stated generally that, when
determining whether an employee is similarly situated, a court
“must look to the job function, level of supervisory
responsibility and salary, as well as other factors relevant to
the particular workplace. This determination requires a court to
undertake a fact-intensive inquiry on a case-by-case basis
rather than in a mechanistic and inflexible manner.” Monaco v.
Am. Gen. Assurance Co., 359 F.3d 296, 305 (3d Cir. 2004).

12

the proffered comparator who allegedly drew dissimilar
employment decisions.” Id.
Here, Plaintiff offers a number of reasons for why he
and Vitellaro were similarly situated. Although they held
different positions, with Vitellaro in Quality Control and
Plaintiff a filler, Vitellaro’s duties substantially overlapped
with Plaintiff’s. See Pl.’s Br. 14; see also id. Ex. G, Quality
Control Unit employee Robert Keith Simpkiss Dep. 35:10-14, June
25, 2014 (“The QCU was supposed to go and check every run.
Approximately about every three runs the QCU goes, and goes
through every run double checking them.”); Doe Dep. 176:8-22
(noting that the filler and Quality Control “work[ed] hand in
hand”); Vitellaro Dep. 164:6-10 (“[Q.] And it’s true, is it not,
that on occasions when you worked with Ponsford Doe that you
would also batch stamp cylinders? A. Yeah, we would all help.”).
In addition, Crocker appears to have supervised both Plaintiff
and Vitellaro, or at least have had the power to discipline or
terminate them. See, e.g., Vitellaro Dep. 102:8-104:12 (stating
that Crocker wrote Vitellaro up after the incident occurred and
warned him that he would be fired if it happened again); Def.’s
Br. Ex. M (showing that Crocker signed Plaintiff’s termination
memorandum). Both employees appear to have had similar
disciplinary histories. See, e.g., Vitellaro Dep. 104:8-12 (“Q.
Was that the first time that you were made aware that you had
13

made mistakes? A. That, yeah, that’s the first time as a QCU,
I’m pretty sure.”); Def.’s Br. Exs. F, G (rating Plaintiff’s
performance as at least “achieves expectations” from 2010-2012).
Finally, although Plaintiff had primary responsibility for
filling the tanks, the “filling record could not be completed by
the filler alone, and was not valid until each individual line
was reviewed and signed by the QCU.” Pl.’s Br. 5; see also
Crocker Dep. 191:12-19 (“Q. As [Plaintiff’s] doing it, once he
has completed all of the work that he’s done, he cannot release
the tanks, can he? A. Correct. Q. Well, the only person who can
release that is someone who is QCU. A. Correct.”).
Defendant argues that Vitellaro was not similarly
situated to Plaintiff because the Quality Control and filler
positions are distinct, Vitellaro was still in training at the
time of the incident, Vitellaro missed the error but did not
cause it, and the scope of his job responsibilities included
“oversee[ing] the whole shift and [making] sure the work was
performed efficiently and without incident.” Def.’s Br. 31-32.
Defendant believes these differences properly account for the
differing degrees of discipline meted out to Plaintiff and
Vitellaro. Id. at 32.
While it is true that both employees appear
superficially distinct, it is not clear that the substance of
their duties materially diverged with respect to the incident at
14

issue. As Plaintiff shows, the positions had a large amount of
overlap, with the Quality Control employee often performing the
job duties of the filler. Moreover, it appears that the final
product was the result of both employees’ collaborative efforts,
particularly since Quality Control must inspect and sign off on
the filler’s work before the oxygenated tanks could leave the
facility. Finally, both employees reported to the same
supervisors and had similar disciplinary histories at the
company. On this evidence, a reasonable jury could find the two
to be “comparator employees [who are] similarly situated in all
relevant respects.” Wilcher, 441 F. App’x at 882.6
For the reasons given above, Plaintiff has offered
sufficient evidence regarding the circumstances of his
termination--and especially Vitellaro’s status as an appropriate
comparator--to meet his burden at the pretext stage. Viewing the

6

See also, e.g., McDonald v. Vill. of Winnetka, 371
F.3d 992, 1002 (7th Cir. 2004) (“As a general rule, whether
individuals are similarly situated is a factual question for the
jury. However, a court may properly grant summary judgment where
it is clear that no reasonable jury could find that the
similarly situated requirement has been met.” (citation
omitted)); accord Heller v. Elizabeth Forward Sch. Dist., 182 F.
App’x 91, 95 (3d Cir. 2006) (holding that the district court
“did not err in denying the motion for summary judgment and
concluding that whether the jobs are similarly situated is a
fact issue appropriate for the jury”); Oliver v. Clinical
Practices of Univ. of Pa., 921 F. Supp. 2d 434, 448 (E.D. Pa.
2013) (holding that the plaintiff “has not presented sufficient
evidence for a jury to conclude that [a potential comparator]
was similarly situated”).
15

evidence in the light most favorable to Plaintiff as the
nonmoving party, the Court finds that he has raised a genuine
dispute as to a material fact on the pretext question and will
therefore deny Defendant’s motion for summary judgment as to the
unlawful termination claim. Pignataro, 593 F.3d at 268.
B.

Retaliation
1.

Legal Standard

In CBOCS West, the Supreme Court held that § 1981
encompasses retaliation claims. 553 U.S. at 457. Therefore, the
Court’s analysis proceeds as it would for a Title VII
retaliation claim. Because Plaintiff offers no direct evidence
of retaliation,7 the Court will evaluate his claim under the
McDonnell Douglas burden-shifting framework. Anderson, 621 F.3d
at 270. Although the second and third steps of this framework
follow those the Court uses in the discrimination context, the
first step differs slightly. Thus, in order for a plaintiff to
establish a prima facie case of retaliation, he “must tender
evidence that: ‘(1) []he engaged in activity protected by Title
VII; (2) the employer took an adverse employment action against
h[im]; and (3) there was a causal connection between h[is]
participation in the protected activity and the adverse

7

See supra note 3, which applies with equal force to
Plaintiff’s retaliation claim.
16

employment action.’” Moore v. City of Phila., 461 F.3d 331, 34041 (3d Cir. 2006) (quoting Nelson v. Upsala Coll., 51 F.3d 383,
386 (3d Cir. 1995)). An “adverse employment action” in this
context is an action that “well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006) (internal quotation marks omitted).
2.

Analysis

For the purposes of summary judgment, the parties do
not dispute that Plaintiff has satisfied the first two elements
of his prima facie case. First, Plaintiff asserts that, since he
was hired as a full-time employee in June 2010, he complained
“several times a month” to his supervisor Crocker about racebased unequal treatment in the workplace. Pl.’s Br. 2; see also
Doe Dep. 108:21-116:2. Crocker’s alleged typical response to
these complaints was that “if you don’t like the way we operate
things here, you can find another job or you can quit.” Pl.’s
Br. 3; see also Doe Dep. 109:15-19. Sometime before July 15,
2011, Plaintiff submitted a computerized survey in which he
complained of the unequal treatment at his workplace. See Doe
Dep. 99:19-101:6. Finally, in November 2011, Plaintiff also
complained to Building Operations Manager Smith. Pl.’s Br. 3;
see also Doe Dep. 225:5-16. Defendant concedes that these events

17

occurred and that they constituted protected activity.8 See
Def.’s Br. 33-34. Second, there is no dispute that Plaintiff was
terminated on September 4, 2012.
Regarding the third element, causal connection,
Plaintiff points to Crocker’s frequent comment that “if you
don’t like the way we operate things here, you can find another
job or you can quit,” and also generally restates the arguments
he made in the context of his unlawful termination claim. Pl.’s
Br. 15-16. Defendant disputes that Plaintiff’s termination had
anything to do with complaints that Plaintiff might have made.
Def.’s Br. 34-35. Defendant also notes the temporal distance
between many of Plaintiff’s complaints and his termination, and
that “nothing changed about the nature or frequency of
[Plaintiff’s] complaints” around the time of the termination.
Id. at 34.
The Third Circuit allows a plaintiff to “rely on a
‘broad array of evidence’ to demonstrate a causal link between
his protected activity and the adverse action taken against
8

The fact that the majority of these complaints appear
to be informal does not alter the Court’s analysis, as the Third
Circuit does not “require a formal letter of complaint to an
employer or the EEOC as the only acceptable indicia of the
requisite ‘protected conduct.’” Barber v. CSX Distrib. Servs.,
68 F.3d 694, 702 (3d Cir. 1995); see also id. (discussing this
proposition in the context of a claim under the Age
Discrimination in Employment Act, but relying on Sumner v. U.S.
Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990), a Title VII
case).
18

him.” Marra v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir.
2007) (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271,
284 (3d Cir. 2000)). “In certain narrow circumstances, an
unusually suggestive proximity in time between the protected
activity and the adverse action may be sufficient, on its own,
to establish the requisite causal connection.” Id. (internal
quotations marks omitted). On the other hand, the “mere passage
of time is not legally conclusive proof against retaliation.”
Id. (quoting Robinson v. Se. Pa. Transp. Auth., 982 F.2d 892,
894 (3d Cir. 1993)) (internal quotation marks omitted). A court
may need to assess other factors as well. For example,
[w]here the time between the protected activity and
adverse action is not so close as to be unusually
suggestive of a causal connection standing alone,
courts may look to the intervening period for
demonstrative proof, such as actual antagonistic
conduct or animus against the employee, or other types
of circumstantial evidence, such as inconsistent
reasons given by the employer for terminating the
employee
or
the
employer’s
treatment
of
other
employees, that give rise to an inference of causation
when considered as a whole.
Id. (citation omitted). In any event, a plaintiff “cannot
establish that there was a causal connection without some
evidence that the individuals responsible for the adverse action
knew of the plaintiff’s protected conduct at the time they
acted.” Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 196 (3d
Cir. 2015).

19

Here, it cannot be disputed that the “individuals
responsible for the adverse action knew of [Plaintiff’s]
protected conduct,” id., since the complaints were primarily
directed to them. Looking at Plaintiff’s evidence as a whole,
however, it is clear that he has not sufficiently established a
causal link between his complaints and his termination. The
latest discrete complaint occurred in November 2011, when
Plaintiff spoke to Smith. The fact that he was terminated
approximately ten months later does not constitute an inferencecreating temporal proximity. See LeBoon v. Lancaster Jewish
Cmty. Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir. 2007) (“Although
there is no bright line rule as to what constitutes unduly
suggestive temporal proximity, a gap of three months . . . [,]
without more, cannot create an inference of causation and defeat
summary judgment.”). On the other hand, Plaintiff’s more regular
complaints to Crocker do seem to be temporally proximate to his
termination. However, any inference to be drawn from temporal
proximity weakens considerably once it is noted that Plaintiff
complained regularly for over two years, during which time--and
allegedly partially on the basis of his complaints--he was
promoted to a position of increased responsibility. See Am.
Compl. ¶ 14; Pl.’s Br. 4. In this context, Crocker’s alleged
frequent comment suggesting that Plaintiff quit if he did not

20

like the work environment also fails to support an inference of
causation.
Receiving no support from temporal proximity,
Plaintiff must base his retaliation claim on other
“demonstrative proof, such as actual antagonistic conduct or
animus against the employee, or other types of circumstantial
evidence” supporting an inference of causation. Marra, 497 F.3d
at 302 (citation omitted). As noted above, Plaintiff here relies
on the arguments he made in the unlawful termination context.
Although he successfully avoided summary judgment on that claim,
he cannot do so here. Any alleged inconsistencies in Defendant’s
handling of the termination and any disparate treatment between
Plaintiff and Vitellaro as a white comparator may raise a
genuine dispute as to a material fact regarding whether
Defendant improperly terminated Plaintiff based on racial
discrimination. However, Plaintiff’s discrimination and
retaliation claims cannot be collapsed into one conceptual
claim, especially if there is a lack of evidence that
Plaintiff’s protected conduct prompted the adverse action. Here,
Plaintiff was promoted during the period in which he engaged in
protected activity: this effectively precludes any inference to
be drawn from the circumstances surrounding his discrimination

21

claim.9 Moreover, as Defendant observes, Plaintiff appears to
allege no change in the nature of or response to his regular
complaints over the relevant time period. See Doe Dep. 200:2-6
(“Q. Did anything change about the nature of your complaints
around August [2012]? A. When I complained, you know, he will
listen. Sometimes it would cease. Sometimes it would go back to
where it was.”). Therefore, Plaintiff fails to show a causal
connection between the protected activity and his termination,
and cannot satisfy the third element of his prima facie case.
In sum, Plaintiff has not offered “evidence that is
sufficient to convince a reasonable factfinder to find all of
the elements of a prima facie case,” Keller v. Orix Credit
Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (citing
Hicks, 509 U.S. at 506), and he therefore cannot succeed on his
retaliation claim against Defendant. Accordingly, the Court will
grant Defendant’s motion for summary judgment on this claim.
IV.

CONCLUSION
For the foregoing reasons, the Court will grant

Defendant’s motion for summary judgment as to Plaintiff’s

9

Plaintiff does argue generally that he was subject to
a racially discriminatory work environment. Pl.’s Br. 15.
However, because he has not shown that he was personally
adversely affected by this environment (to the contrary, he was
promoted), this argument does not persuade.
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retaliation claim and will deny the motion as to Plaintiff’s
unlawful termination claim. An appropriate order follows.

23