PARADOA v. PHILADELPHIA HOUSING AUTHORITY
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 6/2/2014. 6/3/2014 ENTERED AND COPIES E-MAILED.(kk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
June 2, 2014
In this action alleging race discrimination under Title VII of the Civil Rights Act, 42
U.S.C. § 1981 and the Pennsylvania Human Relations Act (“PHRA”),1 the defendant,
Philadelphia Housing Authority (“PHA”), has moved for summary judgment, arguing that
the plaintiff, Luz Paradoa, has not met her burden of producing evidence showing that
its decision to terminate her employment was based on her race.
Because we conclude that Paradoa has not established a prima facie case, we
shall grant summary judgment.
Paradoa began her employment at PHA in 2000 as a property manager for the
Turnkey III Homeownership Program.2 Her job entailed ensuring tenants were keeping
up with lease obligations, assisting tenants with purchasing property and supervising
several employees.3 In 2008, Paradoa was promoted to the position of manager of
At oral argument on May 14, 2014, Paradoa withdrew her national origin discrimination claims
under Title VII of the Civil Rights Act and PHRA. 5/14/14 Hr’g Tr. 6:25-7:12.
Def.’s Statement of Undisputed Material Facts (“Def.’s SUF”) (Doc. No. 16) ¶ 12.
Id. ¶ 13.
PHA’s Community Partners Program.4 In that role, she was responsible for managing
contracts for services to PHA residents, managing budgets, overseeing staff, and
supervising contractors.5 Six or seven people reported to her.6
In December 2010, Angelique Martez, Paradoa’s first cousin, joined Paradoa’s
team as a Family Self-Sufficiency Coordinator.7 She reported directly to Paradoa until
January or February 2012, when she transferred to a position under a different
On July 17, 2012, a group of individuals supervised by Paradoa complained
about her to Joanne Strauss, the Director of Human Resources for PHA.9 According to
Strauss, “at least four” workers had complained that conversations between Paradoa
and Martez, spoken in Spanish, made them feel uncomfortable, based on their
observations of Paradoa and Martez laughing, pointing and making other gestures.10
Strauss directed them to file their complaints formally with Human Resources.11
In June or July 2012, Oddess Blocker, one of Paradoa’s subordinates who
approached Strauss, complained to Cheryl DeVose, an employment administrator
Id. ¶ 14.
Id. ¶ 18; Paradoa Dep. 21:11-23:7 (Doc. No. 16-5).
Paradoa Dep. 23:4-7.
Id. 34:6-16, 105:16-21; Angelique Martez Dep. 17:6-8, 18:13-16 (Doc. No. 16-9).
Martez Dep. 19:20-21, 23:14-16, 24:22-25:2, 23:6-13.
Strauss Dep. 39:2-5, 47:3-18, 48:18-49:2 (Doc. No. 16-6); Blocker Dep. 20:17-23 (Doc. No. 16-
Strauss Dep. 36:2-10.
Id. 47:23-48:5, 49:9-13.
within PHA’s Human Resources Department.12 She accused Paradoa of bullying her.13
According to Blocker, Paradoa “belittled” her, spoke to her in an aggressive tone and
used hand gestures, “singled her out,” constantly criticized her and wrote her up “for no
reason at all.”14 Blocker also reported that Martez was getting favorable treatment.15
DeVose testified that she received complaints about Paradoa from two other
employees.16 DeVose interviewed each of the individuals and the employees identified
as witnesses to their allegations.17
In August 2012, DeVose interviewed Paradoa.18
Angela Cabrera, a
management trainee in PHA’s Human Resources Department, was present at the
interview.19 According to Paradoa, DeVose asked her three questions bearing on her
nationality, race and language.20 Specifically, she claimed DeVose asked her whether
she was Hispanic, spoke Spanish, and spoke Spanish at work around co-workers.21
Def.’s SUF ¶ 4, 36.
Blocker Dep. 10:11-17.
Def.’s SUF ¶ 36; Blocker Dep. 10:23-11:3, 26:23-27:7.
Blocker Dep. 10:18-21, 11:4-24.
DeVose Dep. 11:23-12:19 (Doc. No. 16-7).
Def.’s SUF ¶¶ 38, 39, 42.
Id. ¶ 44.
Id. ¶ 5; Paradoa Dep. 102:8-14; Straus Dep. 33:3-18; DeVose Dep. 17:1-10.
Paradoa Dep. 103:18-104:3.
Q: Did she ask you any additional questions regarding your race or nationality?
A: Other than, do I speak Spanish, do I speak Spanish when I’m at work, do I speak Spanish
around co-workers, no; that was pretty much it.
Q: So, she asked, “Are you Hispanic” She asked if you speak Spanish at work and she asked
if you speak Spanish with co-workers. Did she ask any other questions regarding your race or
A. Not that I recall.
DeVose testified that she asked Paradoa whether she had spoken Spanish with Martez
because the complainants alleged that Paradoa and Martez talked about other
employees in Spanish.22
DeVose denied asking Paradoa about her nationality or
whether she was Hispanic.23 Cabrera confirmed that DeVose asked Paradoa whether
she spoke Spanish with her cousin about other co-workers.24 Cabrera also testified that
DeVose never asked Paradoa about her national origin or whether she was Hispanic.25
DeVose reported the results of her investigation to Strauss.26 DeVose advised
that the complaining employees were credible and concluded that Paradoa had violated
several employee handbook provisions when interacting with her subordinates.27 She
In its Human Resources Policy Manual, PHA explained its nepotism policy
concerning the hiring and work assignments of employees and immediate family
members or relatives.29 The policy provided that direct supervision of an employee by
his or her “relative,” as defined by the policy, constituted a conflict of interest that a
supervisor was required to report to the Human Resources Department.30
DeVose Dep. 24:14-24.
Cabrera Dep. 15:16-23.
Def.’s SUF ¶ 3; Strauss Dep. 10:6-17.
Strauss Dep. 10:18-25.
DeVose Dep. 37:24-38:3.
Def.’s SUF ¶¶ 28, 30; id. Ex. J.
Def.’s SUF ¶¶ 31, 33; id. Ex. J at 1-2.
cousin” was included within the definition of a “relative.” 31 Paradoa testified that when
she was hired, she believes she was told that there was a manual, but it was not
provided to her at that time.32 She added that she “may have” reviewed the manual
when she started with PHA.33
In 2012, PHA distributed an employee handbook, which described the policies
and procedures governing PHA employees.34 The policies relevant to this case are
those addressing non-fraternization and bullying. Section 3.8 of PHA’s Standards of
Ethical Conduct, PHA’s Non-Fraternization Policy, prohibited employees from
supervising a person with whom he or she had a “close relationship.”35 A first-cousin
relationship constituted a “close relationship.”36
Section 5.2 of PHA’s Workplace
Management Policy, Workplace Bullying, provided that PHA would not tolerate
workplace bullying.37 Bullying is defined as “[r]epeated inappropriate behavior, either
direct or indirect, whether verbal, physical or otherwise, conducted by one or more
persons against another or others, at the place of work and/or in the course of
employment.”38 Examples of bullying include non-verbal threatening gestures, glances
which can convey threatening messages, persistent singling out of one person,
persistent hurtful name calling, shouting, raising one’s voice at an individual and
Def.’s SUF ¶ 32; id. Ex. J at 2.
Paradoa Dep. 57:3-5.
Def.’s SUF ¶ 8; id. Ex. H; Paradoa Dep. 53:17-20.
Def.’s SUF ¶ 21; id. Ex. H at 14, 20.
Def.’s SUF ¶ 22; id. Ex. H at 20.
Def.’s SUF ¶ 25; id. Ex. H at 38.
Def.’s SUF ¶ 26; id. Ex. H at 38.
repeatedly accusing someone of errors which cannot be documented.39 Penalties for
violations of the nepotism and bullying policies included termination of employment.40
Paradoa knew or should have known of these policies and the consequences of
violating them. She acknowledged that she received the employee handbook, was
familiar with it, and “probably” read through it when it was distributed “probably [in]
spring [of 2012].”41
Based on her understanding of the policies and the results of DeVose’s
investigation, Strauss determined that Paradoa had violated the nepotism, workplace
bullying, principles of ethical conduct, and non-fraternization policies.42 After consulting
with Dr. Little, Deputy Executive Director of Resident Services, and Michael Muffley, the
Chief Investigator of the Office of Audit and Compliance, Strauss decided to suspend
Paradoa’s employment with a recommendation for discharge.43
On September 14,
2012, Strauss notified Paradoa that her employment was terminated due to her
violations of four PHA policies.44
On December 6, 2012, Paradoa filed a written charge of discrimination with the
Pennsylvania Human Relations Commission (“PHRC”) and the Equal Employment
Opportunity Commission (“EEOC”). She alleged discrimination on the basis of her race
Def.’s SUF ¶ 27; id. Ex. H at 38-39.
Def.’s SUF ¶¶ 24-25; id. Ex. H at 20, 38.
Paradoa Dep. 53:1-24.
Def.’s SUF ¶¶ 58-59.
Id. ¶ 56; Compl. ¶ 20.
Def.’s SUF ¶ 63; id. Ex. L.
and national origin.45 On July 16, 2013, the United States Department of Justice issued
a notice of right to sue.46 On October 15, 2013, Paradoa filed a complaint in this
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Judgment will be entered against a party who fails to
sufficiently establish any element essential to that party’s case and who bears the
ultimate burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In examining the motion, we must draw all reasonable inferences in the nonmovant’s
favor. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 2003).
The initial burden of demonstrating there are no genuine issues of material fact
falls on the moving party. Fed. R. Civ. P. 56(a). Once the moving party has met its
burden, the nonmoving party must counter with “‘specific facts showing that there is a
genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (citation omitted). The nonmovant must show more than the “mere
Compl. ¶ 14.
In her complaint, Paradoa alleged that PHA excluded her from resident leader roundtable
meetings, event planning meetings and various events; ignored her at an event coordinated by her
department; and failed to support and encourage her. Compl. ¶¶ 19-40, 65. But, these actions do not
form the bases of her claims. At oral argument, Paradoa limited her claim to wrongful termination:
The Court: Can you tell me what the employment action specifically forming the basis of
your claim [is]?
Mr. Ely: The termination.
The Court: Termination only?
Mr. Ely: Yes, Your Honor.
5/14/14 Hr’g Tr. 1:21-2:1.
existence of a scintilla of evidence” for elements on which he bears the burden of
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
assertions, conclusory allegations or suspicions are not sufficient to defeat summary
judgment. Fireman’s Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Thus,
“[w]here the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587
Disparate treatment claims under Title VII, § 1981, and the PHRA are analyzed
under the burden-shifting framework established by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).48 Under this analysis, Paradoa
must first establish a prima facie case of disparate treatment and termination by
showing that: (1) she is a member of a protected class; (2) she is qualified for the
position; (3) she was fired from that position; and (4) nonmembers of the protected class
were treated more favorably, that is, under circumstances giving rise to an inference of
discrimination. Mandel v. M & Q Packaging Corp., 706 F.3d 157, 169 (3d Cir. 2013);
Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003); Goosby v. Johnson &
Johnson Med., Inc., 228 F.3d 313, 318-19 (3d Cir. 2000). If Paradoa establishes a
prima facie case, the burden of production then shifts to PHA to identify a legitimate
non-discriminatory reason for the termination. Id. at 319. If PHA satisfies that burden,
Paradoa must produce evidence from which a reasonable fact finder could conclude
Jones v. Sch. Dist. of Phila., 198 F.3d 403, 409 (3d Cir. 1999) (holding that state law claims for
race discrimination pursuant to the PHRA are analyzed under the same framework as claims brought
under Title VII); Brown v. J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009) (“[T]he elements of a § 1981
claim are identical to the elements of a Title VII employment discrimination claim.”). Significantly, the core
of a § 1981 action is intentional discrimination. Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 562
(3d Cir. 2002).
that the employer’s proferred reason was merely a pretext for race or national origin
discrimination. Id. This final burden of production “merges with the ultimate burden of
persuading [the jury] that [she] has been the victim of intentional discrimination.” Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
To overcome a motion for summary judgment, Paradoa must establish a causal
connection between her race and the alleged adverse employment action. Sarullo, 352
F.3d at 798. A “subjective belief” that race played a role in the employment decision
does not establish an inference of discrimination. Wilson v. Blockbuster, Inc., 571 F.
Supp. 2d 641, 647 (E.D. Pa. 2008) (citing Jones v. United Parcel Serv., 214 F.3d 402,
407 (3d Cir. 2000)).
PHA argues that Paradoa has not made out a prima facie case for discrimination
based on her race. It does not dispute that Paradoa is a member of a protected class,
she was qualified for the position of manager of Community Partners Program, and her
suspension and termination constituted adverse employment actions. 49 It contends that
she has not presented any evidence that other similarly-situated employees were
treated more favorably or that the circumstances of her termination raise an inference of
discrimination. See Pivorotto v. Innovative Sys., 191 F.3d 344, 357 (3d Cir. 1999).
Paradoa has not come forward with any evidence that non-Hispanic employees
were disciplined differently than her or other Hispanic employees for the same conduct
which PHA cited as grounds for her termination.50
Instead, she contends that the
Def.’s Mem. at 5.
“When using comparators to establish pretext, plaintiff must show that the individuals engaged
in the same conduct as him and that they shared in common all relevant aspects of his employment.”
Ade v. KidsPeace Corp., 698 F. Supp. 2d 501, 514 (E.D. Pa. 2010).
circumstances surrounding her suspension and termination raise an inference that the
actions were motivated by a discriminatory animus.
Opposing summary judgment, Paradoa makes three arguments.
claims that PHA failed to explain how she violated its policies.51 With respect to the
1999 “anti-nepotism” policy, she claims there is no evidence to indicate what period of
time the policy covered, when she received a copy of the policy, whether she agreed to
be bound by it and how she violated it.52 Paradoa points out that Martez testified that
when she was hired, she informed PHA that she knew somebody who worked for the
agency and PHA did not follow-up on that information.53
Second, Paradoa claims that DeVose asked her “inappropriate and improper”
questions regarding her race and national origin during the investigative interview.54
According to Paradoa, DeVose asked her if she was Hispanic and spoke Spanish at
work and around co-workers.55
She contends that despite the lack of evidence to
Resp. in Opp. to Def.’s Mot. for Summ. J. (Doc. No. 18) at 8.
Id. At oral argument, Paradoa conceded that Martez did not identify Paradoa by name.
Paradoa also conceded that she had the obligation to report her relationship with Martez:
Mr. Ely: The cousin disclosed the fact that they were related . . . .
The Court: No, no, that is not what happened according to the record. The record is . . .
that Martez told PHA when she was hired that she was related to someone in PHA.
Mr. Ely: But my recollection and I may be wrong Judge is that our client also removed
herself from the panel in interviewing her. It was not a secret.
The Court: Okay. Let’s assume she did. She still supervised her. The obligation was not
[on] Martez; the obligation rested on Paradoa.
Mr. Ely: I would agree with all of that for summary judgment purposes.
The Court: Wait a minute. Wait a minute. The record does not disclose that Martez said
that I am related to Paradoa.
Mr. Ely: I would agree with that.
5/14/14 Hr.’g Tr. 15:17-16:12.
Paradoa Dep. 103:14-104:03, 107:22-108:2.
Id. 106:01-03, 106:21-107:02.
suggest that Paradoa and Martez were speaking negatively about their coworkers and
the lack of a policy prohibiting speaking Spanish at work, DeVose recommended
Third, Paradoa urges us to make a credibility determination by discrediting
Blocker’s testimony as that of a convicted felon.57 She requests that we take judicial
notice of Blocker’s criminal history record, contending that if she is “permitted to
impeach Blocker on her criminal history, a reasonable jury could determine that her
complaints about Plaintiff lacked credibility and were motivated by racial animus.”58
At oral argument, Paradoa’s counsel summarized her argument that she met her
burden of establishing an inference of discrimination.59 He relied on the two questions
DeVose asked regarding race during the investigatory interview – whether Paradoa was
Hispanic and whether she spoke Spanish at work and around co-workers.60 These
Resp. in Opp. to Def.’s Mot. for Summ. J. at 8-9.
Id. At oral argument, Paradoa conceded that we cannot make a credibility determination:
The Court: Blocker’s credibility is not for me to determine, is it?
Mr. Ely: No.
The Court: And whether or not the complaints were credible is not for me to
determine at this stage, is it[?]
Mr. Ely: No.
5/14/14 Hr’g Tr. 11:6-12.
Resp. in Opp. to Def.’s Mot. for Summ. J. at 9.
The Court: Are you saying that two questions give rise to a prima facie case?
Mr. Ely: To the fourth element of the prima facie case. The only one that is disputed.
Those comments alone establish inference.
5/14/14 Hr’g Tr. 7:16-20.
The Court: So you want to rely on the comments?
Mr. Ely: The comments alone, correct, are enough to show inference of discrimination.
Id. 19:20-20:3; Paradoa Dep. 106:01-03, 106:21-107:02.
questions, according to Paradoa, reflect DeVose’s discriminatory animus.
contends that despite the lack of evidence to suggest that Paradoa and Martez were
speaking negatively about their coworkers and the lack of a policy prohibiting speaking
Spanish at work, DeVose then recommended termination.
Paradoa concedes that PHA had an obligation to conduct the investigation once
the complaints were lodged.61
She acknowledged that DeVose’s inquiry regarding
speaking Spanish at work was relevant to that investigation.62
DeVose asked the
question because Paradoa’s subordinates complained that Paradoa was speaking
Spanish about them.
DeVose’s inquiry regarding Paradoa’s speaking Spanish at work does not make
out a claim of discrimination. Language is not a protected category under Title VII. See
Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983) (stating, in an equal protection
context, that “[l]anguage, by itself, does not identify members of a suspect class”);
Pacheco v. N.Y. Presbyterian Hosp., 593 F. Supp. 2d 599, 612 (S.D.N.Y. 2009) (“Title
VII does not expressly identify language as a protected class.”); Brewster v. City of
The Court: When I asked you the question is what was the context? The context was
that there was a complaint of bullying. It does not matter whether or not that was a
credible complaint. There was an obligation on PHA to conduct the investigation.
Mr. Ely: Assuming a credible complaint, I would agree.
The Court: Well, [a] complaint is made. They would be accused of not following their
process if there was a complaint formally made, so they had to investigate.
Mr. Ely: Yes.
5/14/14 Hr’g Tr. 12:24-13:10.
The Court: So they investigate and one of the claims is that they are talking Spanish in
front of these people and criticizing them, their co-employees[.] So that the question is,
do you speak Spanish in that context –
Mr. Ely: Correct.
The Court: – is absolutely relevant to the investigation, is it not?
Mr. Ely: I would agree but again . . . [the employees could not have known that Paradoa
was speaking negatively about them because none of them spoke Spanish].).
5/14/14 Hr.’g Tr. 13:11-14:4.
Poughkeepsie, 447 F. Supp. 2d 342, 351 (S.D.N.Y. 2006) (noting that Title VII “does not
protect against discrimination on the basis of language”); Betances v. Prestige
Decorating & Wallcovering, Inc., No. 05-4485, 2006 WL 963877, at *2 (S.D.N.Y. Apr.
13, 2006) (holding that “non-English speakers . . . are not a protected class under Title
VII”). Nor are language and race interchangeable. See Mumid v. Abraham Lincoln
High Sch., 618 F.3d 789, 795 (8th Cir. 2010) (“While Title VI prohibits discrimination on
the basis of national origin, language and national origin are not interchangeable.”).
Although the Supreme Court has opined, in the context of jury selection, that “it may
well be, for certain ethnic groups and in some communities, that proficiency in a
particular language, like skin color, should be treated as a surrogate for race under an
equal protection analysis,” it rejected a claim that juror exclusion on basis of ability to
speak Spanish is equivalent to striking on basis of ethnicity. Hernandez v. New York,
500 U.S. 352, 353-54 (1991).
Significantly, Paradoa does not argue that her language and race were so closely
intertwined that “punish[ing her] for speaking Spanish to her co-worker”63 was
equivalent to firing her on the basis of her race. Indeed, there are no facts suggesting
that her termination was linked to her speaking Spanish at work.
Strauss testified, speaking Spanish at work is not a violation of any PHA policy. 64
Assuming, as we must, that Paradoa’s allegations are true and the interview
transpired exactly as she described, she still has presented no evidence, direct or
indirect, linking racial bias to Strauss’s decision to terminate her. She has not shown
how DeVose’s questions about being Hispanic and speaking Spanish around other
Resp. in Opp. to Def.’s Mot. for Summ. J. at 12.
Strauss Dep. 19:17-20:1.
employees revealed a discriminatory animus that instigated Strauss’s decision to fire
her. We cannot infer from DeVose’s questions that she was biased or driven by an
Even if Paradoa could establish a prima facie case of discrimination, she has not
proffered any evidence of discriminatory motive to overcome PHA’s legitimate nondiscriminatory reason for her termination.
A defendant can satisfy its “relatively light” burden of showing a nondiscriminatory reason for its action, Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir.
2013),65 by “introducing evidence which, taken as true, would permit the conclusion that
there was a non-discriminatory reason for the unfavorable employment decision.”
Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).
PHA’s burden is one of
“production, . . . not persuasion.” Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d
1115, 1123-24 (9th Cir. 2000). It need not prove that the tendered reason “actually
motivated” its decision. Fuentes, 32 F.3d at 763 (emphasis in original). It only needs to
show that its decision could have been motivated by the proffered legitimate, nondiscriminatory reason. Id.; see also Iadimarco v. Runyon, 190 F.3d 151, 157 (3d Cir.
PHA asserts that Paradoa was terminated because she violated several PHA
policies. The violations were Paradoa’s failure to disclose that her first cousin, Martez,
was under her supervision, and her bullying her subordinates.
Violation of an employer’s policies is a legitimate, non-discriminatory reason for
discharge. See, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 51-52 (2003); Parikh v.
See also Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012)
(describing this step as a “minimal burden”).
UPS, 491 F. App’x 303, 307 (3d Cir. Aug. 7, 2012) (unpublished); Slater v.
Susquehanna Cnty., 465 F. App’x 132, 137 (3d Cir. 2012) (unpublished).
Paradoa objects that the complaints of the subordinates, other than Blocker’s,
are inadmissible hearsay. Only Blocker was deposed and PHA has not submitted any
affidavits or declarations by the other complainants. Blocker testified that she filed a
complaint with Human Resources because Paradoa was bullying her and favoring
Martez over other employees in her department. Paradoa attacks Blocker’s testimony
because Blocker “is a convicted drug dealer and felon.”66
According to Paradoa,
“Blocker’s testimony, as a whole, is suspect and creates genuine issues of material fact
for trial with respect to pretext.”67
Essentially, she argues that without Blocker’s
incredible testimony, PHA has no evidence of misconduct supporting the violations.
Paradoa’s argument fails.
She does not argue that PHA will not be able to
produce admissible evidence of the complaints at trial.
Rule 56(c)(2) was amended in 2010 to provide that “[a] party may object that the
material cited to support or dispute a fact cannot be presented in a form that would be
admissible in evidence.” Thus, “the objection [now] contemplated by the amended Rule
is not that the material ‘has not’ been submitted in admissible form, but that it ‘cannot’
be.” Ridgell v. Astrue, No. 10-3280, 2012 WL 707008, at *9 (D. Md. Mar. 2, 2012)
(quoting Foreword Magazine, Inc. v. OverDrive Inc., No. 10-1144, 2011 WL 5169384, at
*2 (W.D. Mich. Oct. 31, 2011)); see also Shelton v. Univ. of Med. & Dentistry of N.J.,
223 F.3d 220, 223 at n.2 (3d Cir. 2000) (“[H]earsay statements can be considered on a
Answer to Def.’s SUF ¶ 34 (Doc. No. 18-1).
Id. As we noted in footnote 57, Paradoa agreed that we cannot make a credibility
determination at this stage.
motion for summary judgment if they are capable of admission at trial.”); Barr v. Cnty. of
Clarion, 417 F. App’x 178, 180 n.4 (3d Cir. 2011) (unpublished).
Paradoa does not dispute that her subordinates complained to DeVose that she
had bullied them. She challenges the truth of the complaints. Significantly, Paradoa
does not deny that she did not report that she was supervising her cousin in violation of
the nepotism and non-fraternization policies.
Whether Paradoa bullied anyone is not dispositive. The issue is what Strauss
and DeVose believed Paradoa had done.
PHA offers the statements of the
subordinates to show what DeVose’s investigation revealed and what Strauss
considered in deciding to terminate Paradoa. See Fed. R. Evid. 801(c)(2) (“‘Hearsay
means a statement that . . . a party offers in evidence to prove the truth of the matter
asserted in the statement.”). In other words, statements of employees that DeVose,
Strauss and Blocker repeated in their testimony are not inadmissible hearsay because
they are offered to explain why PHA acted in terminating Paradoa’s employment.
Paradoa offers nothing to suggest that DeVose or Strauss had no basis to believe what
the complainants reported.
At the pretext stage of the McDonnell Douglas test, we must accept PHA’s
evidence supporting its alleged reason for terminating Paradoa as true. See Fuentes,
32 F.3d at 762; Bodett v. CoxCom, Inc., 366 F.3d 736, 744 (9th Cir. 2004). Citing the
violation of its policies as the grounds for termination, PHA has carried its light burden of
production to establish a legitimate, non-discriminatory reason for its employment
Because PHA articulated a non-discriminatory reason, the burden shifts back to
Paradoa, who can, by direct or circumstantial evidence, either discredit PHA’s proffered
justification or present evidence that her termination was because of her race. Fuentes,
32 F.3d at 764. A plaintiff may discredit the proffered reason by demonstrating “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, . . . , and hence infer that the employer did
not act for [the asserted] non-discriminatory reasons.” Id. at 765 (emphasis removed)
(citations and internal quotation marks omitted); see also DeAngelo v. DentalEZ, Inc.,
738 F. Supp. 2d 572, 580 (E.D. Pa. 2010). A plaintiff can meet her burden by “point[ing]
to evidence with sufficient probative force” from which a fact-finder could conclude that
the adverse employment action was more likely than not the result of discrimination.
Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644-45 (3d Cir. 1998);
Fuentes, 32 F.3d at 764.
Examples of such evidence include previous acts of
discrimination against the plaintiff, discrimination against other persons within the
plaintiff’s protected class or within another protected class, or a showing that the
defendant has treated similarly situated non-Hispanic employees more favorably.
Simpson, 142 F.3d at 645.
Making bald, conclusory statements that the articulated reason is not credible is
insufficient. See Olympic Jr., Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir.
1972); see also Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (holding that
conclusory allegations of discrimination are insufficient to avoid summary judgment).
Rather, the plaintiff must produce evidence that will “allow a factfinder reasonably to
infer that [the employer’s] proffered non-discriminatory reason was either a post hoc
fabrication or otherwise did not actually motivate the employment action.” Fuentes, 32
F.3d at 764 (internal citations omitted); Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d
Cir. 2005) (holding that plaintiff is required “to present evidence contradicting the core
facts put forward by the employer as the legitimate reason for its decision”); Stanziale v.
Jargowsky, 200 F.3d 101, 106-07 (3d Cir. 2000) (upholding summary judgment where
the plaintiff attempted to show pretext by disputing the importance of the difference in
educational qualifications between himself and the person hired rather than challenging
the disparity itself or proving that the qualifications at issue bore no actual relationship to
the employment being sought).
Paradoa does not rely upon direct evidence to establish pretext. Instead, she
cites facts that she claims undermine PHA’s proffered explanation for firing her.
Primarily, she stresses the lack of a signed acknowledgement that she received the
1999 nepotism policy and the employee handbook; the absence of a prohibition against
speaking Spanish at the workplace; and the lack of evidence that she and Martez talked
negatively about other employees in Spanish.
She also contends that DeVose’s
questions during the interview, considered alone, show pretext.68
The Court: Tell me all the indirect evidence you have to show that their excuse was
Mr. Ely: The comments made –
The Court: – as part of their case?
Mr. Ely: The same evidence, the comments, made at the time of the meeting that led to
her termination. Are you Hispanic? Do you speak Spanish?
5/14/14 Hr’g Tr. 18:1-8.
The Court: I want to be clear. The evidence that you rely on that gets you to the jury
which satisfies your burden at that last stage, them having shown a nondiscriminatory
reason is the two comments during the interview?
Mr. Ely: That’s correct.
The Court: Are you Hispanic? And did you speak Spanish.
The focus of the pretext inquiry is on whether discriminatory animus motivated
the employer. Fuentes, 32 F.3d at 763-65. “What matters is the perception of the
decision maker.” Billups v. Methodist Hosp. of Chicago, 922 F.2d 1300, 1304 (7th Cir.
1991) (noting that the inquiry regarding genuineness of the nondiscriminatory reason “is
limited to whether the employer’s belief was honestly held”); see also Holder v. City of
Raleigh, 867 F.2d 823, 829 (4th Cir. 1989) (“[A] reason honestly described but poorly
founded is not a pretext.”); Hicks v. Arthur, 878 F. Supp. 737, 739 (E.D. Pa. 1995) (“[A]n
ill-informed decision or an ill-considered decision is not automatically pretextual if the
employer has given an honest explanation.”), aff’d, 72 F.3d 122 (3d Cir. 1995)).
In this case, DeVose investigated the complaints and determined that, based on
the statements of the people she interviewed, Paradoa had violated PHA policies by
supervising her first cousin and bullying her subordinates. She reported the results of
her investigation to Strauss, who consulted with Dr. Little and Muffley. Together, they
decided that termination was warranted.
Significantly, Paradoa’s contention that Martez disclosed to PHA that she had a
relative working at the agency does not contradict Strauss’s determination that Paradoa
herself failed to report the relationship to PHA. Paradoa does not deny supervising
Martez. She does not dispute that she did not report the relationship. Nor does she
allege that she was not aware of the impropriety of directly supervising her cousin.
To prevail on a race-based discrimination claim, “the plaintiff cannot simply show
that the employer’s decision was wrong or mistaken.” Fuentes, 32 F.3d at 765. She
Mr. Ely: Correct.
The Court: And that is it? I want to make sure I got this whole thing.
Mr. Ely: That’s right. Being Hispanic has nothing to do with their investigation.
must show “that [the plaintiff’s proffered reason] was so plainly wrong that it cannot
have been the employer’s real reason.” Keller v. Orix Cred. Alliance, Inc., 130 F.3d
1101, 1109 (3d Cir. 1997). Paradoa has made no such showing. She has not carried
her burden to show that PHA’s proffered reason was mere pretext for intentional
discrimination. Therefore, we shall grant PHA’s motion for summary judgment.
Paradoa has failed to make out a prima facie case for discrimination. Even if she
had, she failed to produce evidence of pretext. Therefore, we shall grant PHA’s motion
for summary judgment on all claims.69
To sustain a claim under § 1981, “a plaintiff must show (1) that [she] belongs to a racial
minority; (2) ‘an intent to discriminate on the basis of race by the defendant; and (3) discrimination
concerning one or more of the activities enumerated in’ § 1981, including the right to make and enforce
contracts.” Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 569 (3d Cir. 2002) (quoting Brown v.
Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001)). Section 1981 claims are evaluated pursuant to the
same burden-shifting framework as Title VII claims. Accordingly, for the same reasons stated above, we
shall grant PHA’s motion for summary judgment with respect to the § 1981 claim.
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