VAUGHAN v. THE BOEING COMPANY

Filing 28

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 1/19/17. 1/19/17 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THOMAS K. VAUGHAN, JR.,
Plaintiff,
v.
THE BOEING COMPANY,
Defendant.

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MCHUGH, J.

CIVIL ACTION
No. 15-4845

JANUARY 19, 2017
MEMORANDUM

This is an unfortunate case of a falling out between employer and employee. Plaintiff
Thomas K. Vaughan, Jr., an African American, worked for Defendant The Boeing Company for
eighteen years before being fired for an altercation with a supervisor. Shortly after Vaughan was
rehired under a probationary agreement and assigned a different role, he violated a Boeing
safety-related employee policy multiple times, leading to a three-day suspension. Once back,
Vaughan ran afoul of employee policies again and was fired for good. He sued Boeing for race
discrimination and retaliation, and Boeing now moves for summary judgment. Though it is
always troubling when a veteran employee loses a good, stable job, I find that Vaughan’s claims
fail as a matter of law and will therefore grant Boeing’s Motion.
I.

Background
Vaughan began working at Boeing’s Ridley Park plant in 1995. He held different roles

over the years, and in 2007 became a composite fabricator, working with the type of materials—
like graphite, Kevlar, and resin—that are used to make aircraft. Specifically, Vaughan did
“deflash,” the grinding down of aircraft parts to ensure there are no sharp edges. Six years into
that role, however, Vaughan got into an altercation with his supervisor and was fired—but after
1

his union negotiated a settlement, Vaughan was allowed to return to work under the terms of a
Last Chance Agreement. The Agreement required Vaughan to meet regularly with a counselor,
Richard Buxton, who worked onsite at Boeing but was employed by a separate counseling
company. 1
The Agreement also provided, in line with its title, that Vaughan was “on notice that any
incident, considered to be insubordination, either direct or indirect, will result in his immediate
discharge.”
A. Initial Issues After Vaughan’s Return
Vaughan returned to Boeing on October 11, 2013, still a composite fabricator but now
reassigned from deflash to “bonding,” which in Vaughan’s case entailed attaching fuel bag
hangers to aircraft. He was also put in a new department (working on V-22 Ospreys) and given a
new supervisor—Charles Moyer, who is white. Of the twenty-odd employees who did bonding
on V-22 Ospreys under Moyer, Vaughan was the only one who is black.
Vaughan’s first assignment back, which continued for almost a month, was sweeping the
floor. The parties disagree about why. Boeing claims that for safety reasons it usually requires
employees to complete trainings and obtain certifications relevant to their type of work before
starting. For Vaughan, who was new to bonding, there were two required certifications, and it
took until October 18 for him to obtain the first and until October 31 for the second. Before the
first, he could not do any substantive bonding work at all, and before the second, he could not
perform his primary assignment of attaching fuel bag hangers. So in the meantime, Vaughan
was told to sweep—which Boeing maintains was the usual practice. 2

1

With limited exceptions, conversations with such counselors are confidential.

2

As Vaughan points out, Boeing’s argument here is largely supported not by its
employees’ deposition testimony, but instead by eleventh-hour affidavits filed by those very
2

Vaughan gives a different explanation. 3 The gist of his account is that Boeing thrust him
into a new job and did not properly train him to do that job, telling him to sweep instead. The
certifications rationale, Vaughan claims, is just a post hoc excuse that was not given at the time.
Moreover, the training Vaughan was supposed to receive (and needed), from coworkers whom
Moyer assigned to help Vaughan learn bonding, never actually happened—in fact, those
coworkers acted dismissively toward him.
As a result, Vaughan complained about the lack of training and about having to sweep to
multiple people, including Moyer, and raised it during an October 28 counseling session with
Buxton. During that session Vaughan did not directly connect his sweeping complaints to
discrimination, 4 but Buxton independently thought it possible that discrimination was the cause
and got Vaughan’s permission to reveal their otherwise-confidential exchange to Paul
Mulholland, Boeing’s human resources head. Buxton told Mulholland only “what Mr. Vaughan
had related to” him: that Vaughan “was spending an unusual amount of time sweeping the
floor.” Buxton Dep. 42:3–9. Although Mulholland then spoke with Vaughan and Moyer about
the situation, nothing changed immediately.

employees who had already been deposed. These affidavits strike me as analogous to sham
affidavits—the difference being that while that term typically refers to affidavits that “come[] in
later to explain away or patch up an earlier deposition in an attempt to create a genuine issue of
material fact,” In re CitX Corp., Inc., 448 F.3d 672, 679 (3d Cir. 2006) (emphasis added), Boeing
uses them here to try and win summary judgment. Needless to say, “prior depositions are more
reliable than affidavits,” Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007),
particularly where—as here—“there is [no] independent evidence in the record to bolster an
otherwise questionable affidavit,” Baer v. Chase, 392 F.3d 609, 625 (3d Cir. 2004). I find
counsel’s tactic troublesome, and have not relied on any of the affidavits in resolving this
Motion.
3

Vaughan does not dispute that other employees occasionally swept the floor, but claims
he had never seen anyone else sweep as much and for as long as he did.
4

In a response to an interrogatory, however, Vaughan stated that he did tell Buxton that
“other employees were not helping him because he was the only Black employee in his shop
area.” Boeing Br. Ex. Y ¶ 11.
3

A few days later, Vaughan finished his last certification, which allowed him to start
attaching fuel bag hangers. But Vaughan’s real gripe continued to be with the lack of hands-on,
on-the-job training showing him how to bond—without which, he says, he could not properly
perform the job. When he told Moyer as much, however, Moyer asked him if he was an “idiot.”
Vaughan took issue, telling his union shop steward about Moyer’s comment, and the two filed a
report with a Boeing human resources representative. The head of the local union then met with
Moyer’s boss, Dennis Garehan, who kept Vaughan in the same job but reassigned him from
Moyer to the supervision of Mark Muldowney (also white). Soon after, Vaughan told Buxton
that he was “more optimistic now that he has returned to meaningful work.”
B. Vaughan’s Suspension
In aircraft manufacturing, Foreign Object Debris (FOD) is any item that is foreign to the
part of the aircraft currently under construction. FOD can be a tool, an extra nut, or even a stray
piece of paper. Because unaccounted-for FOD can ultimately damage an aircraft and cause it to
crash, FOD control is a major and constant concern for Boeing. Boeing therefore requires that
its employees, such as Vaughan, complete annual FOD-control training. 5
With respect to tools, Boeing uses a “chit” system to prevent FOD problems. A chit is a
piece of plastic marked with an employee’s identification number. When an employee removes
a tool from his toolbox for use on an aircraft, he must leave a chit in its place; when he is done
with the tool, he retrieves the chit. Any time the employee leaves the worksite, even for a break,
he must remove all his tools and any other FOD from the aircraft, and at the end of his shift, he
must return all tools to his toolbox and ensure that he has all his chits. If either a tool or chit is

5

Indeed, shortly before the events in this case, the entire Ridley Park plant was shut
down because of multiple FOD incidents. Vaughan testified that a white employee was
responsible for this shutdown but was not terminated.
4

missing, the employee must tell his manager, and the factory will be shut down until the missing
item is found.
Not long after Vaughan had started work under Muldowney (and a month after he was
rehired), Muldowney noticed that Vaughan had left FOD on an aircraft while on break.
Recognizing that Vaughan was a “new employee” to the V-22 Osprey Department and “unaware
of the processes here,” Muldowney, together with Garehan, told Vaughan about the issue and
gave him an informal coaching session on FOD control. Vaughan was told that future violations
could result in a corrective action, which, under the first step of Boeing’s progressive-discipline
regime, usually means human resources gets involved and a written warning is issued.
A week later, and two days after Vaughan reiterated (this time to Muldowney instead of
Moyer) that he needed additional bonding training, Muldowney saw that Vaughan had left tools
out on a cart overnight. There is no real dispute that Vaughan did this; what is disputed is why.
Vaughan claims that while new employees to an area are typically given a locker to store their
tools, he had never been given one, and so he had been leaving his tools on a cart overnight as a
matter of course. Vaughan also testified that he observed white employees frequently leaving
tools out overnight without facing discipline. 6 Boeing, by contrast, acknowledges the long delay
in getting Vaughan a locker, but says this could not have been the reason for Vaughan’s
noncompliance in this instance, because that very night Vaughan had told Muldowney that he
did not have a locker and Muldowney had responded by getting Vaughan both a lock and locker.
In any event, Muldowney emailed Raymond Bates, the human resources representative for the
V-22 Osprey Department, outlining what had happened, including Vaughan’s earlier FOD issue.
Because this was a subsequent violation, Muldowney requested “no less than a written warning.”

6

Vaughan identified one such employee by name.
5

As Bates investigated, Vaughan’s FOD troubles continued. Two weeks after
Muldowney’s email, Muldowney discovered that Vaughan had left paper backing on an aircraft.
Muldowney approached Vaughan about it and told him to be more careful, and updated Bates via
email. Two days later, an employee who shared a toolbox with Vaughan told Muldowney that a
sander was missing from the toolbox, but there was no chit in its place. When confronted,
Vaughan admitted he had been using the sander, but claimed his chits were at the other end of
the building. Muldowney updated Bates with this news as well.
Finally, on December 18, Boeing issued Vaughan a written warning and a three-day
suspension because of his numerous FOD violations. The disciplinary memo specifically cited
each of the above violations except the paper-backing incident. Both Muldowney and Vaughan
signed the memo, although Vaughan again disputed any reference to leaving his tools out on a
cart overnight, claiming he had no place to put them.
C. Vaughan’s Termination
Vaughan returned to work in early January 2014, 7 his future at Boeing uncertain. Soon
after Vaughan got back, Muldowney pointed out that he had made mistakes in attaching certain
fuel bag hangers, which required their replacement. Muldowney told Vaughan that he would not
pursue discipline but that this sort of workmanship problem could trigger it—and given
Vaughan’s prior infractions, discipline likely meant termination. Vaughan responded that he had
“not been given the chance to succeed” and was “being set up to fail.” After giving Vaughan
notice, Muldowney then called Buxton to tell him Vaughan was having “difficulties on the job”
and recommend that he meet with Vaughan. When the two met later that day, Buxton noted that
Vaughan had “mild anxiety over discipline given him for poor workmanship.”
7

Vaughan was out on a medical restriction during the intervening period, the result of a
workplace injury he suffered a few days before the December 18 disciplinary action.
6

Vaughan’s problems continued. Less than a week later, Muldowney emailed Bates and
Garehan to ask that Vaughan be disciplined because he had worked unauthorized overtime.
Because Boeing’s governing collective bargaining agreement sets out specific criteria for
distributing overtime, employees cannot work overtime without authorization. Muldowney,
moreover, had reminded his employees that very week that overtime was given by invitation
only. For his part, Vaughan does not dispute any of this, but testified that white employees in his
area commonly worked unauthorized overtime (and openly discussed doing so) and were not
disciplined. 8 In a now-familiar pattern, shortly after Muldowney approached Vaughan about the
overtime issue, Vaughan met with Buxton, telling him he thought Muldowney was “out to get
me.” 9 Vaughan also told Buxton that he had continued to ask for more job training, but to no
avail. Buxton’s notes from that session read: Vaughan “fears job loss.”
That fear proved well-founded. The next day, after Vaughan’s shift, Donald Clayton, a
manager, and also African American, emailed Muldowney that he had found an unsecured
orbital sander on a cart in the bonders’ work area. When Clayton had returned the sander to the
toolbox, he found Vaughan’s chit in its place. Unlike with his previous infractions, Vaughan
disputes this, claiming he “did not leave anything out” and he was “not the only one with access
to that toolbox.” Nevertheless, given the allegation, as well as Vaughan’s prior incidents,
Muldowney recommended to Bates that Vaughan be fired. And on January 27, 2014, Boeing did
just that, its termination memo specifically citing Vaughan’s overtime and sander incidents.
Vaughan thereafter exhausted state and federal administrative remedies. Significantly, a
Boeing internal investigation conducted during that time revealed data regarding employees who
8

Vaughan identified two such employees by name.

9

In discussing this meeting, Buxton also testified that “Vaughan really is not someone in
my judgment that looked to trump up charges.”
7

committed FOD violations—which Vaughan claims show that white violators were consistently
disciplined less harshly than similarly situated black and Hispanic violators.
Vaughan sued Boeing for race discrimination and retaliation, bringing claims under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e–17; the Pennsylvania Human
Relations Act, 43 Pa. Stat. and Cons. Stat. Ann. §§ 951–963; and 42 U.S.C. § 1981. 10 Boeing
moves for summary judgment.
II.

Legal Standard
Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). On such a motion, “‘[a]ll reasonable inferences from the record must be drawn in favor
of the nonmoving party’ and the court ‘may not weigh the evidence or assess credibility.’”
Goldenstein v. Repossessors Inc., 815 F.3d 142, 146 (3d Cir. 2016) (alteration in original)
(citation omitted). But if the nonmoving party “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,” there is no genuine issue of any material fact and the moving party is
entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
III.

Discussion
I ultimately conclude that Boeing’s Motion should be granted because both Vaughan’s

discrimination and retaliation claims fail as a matter of law.

10

For present purposes there is no difference between these statutes, as the familiar
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), governs
claims under each. See Jones v. Sch. Dist., 198 F.3d 403, 410 (3d Cir. 1999).
8

A. Discrimination Claims
Title VII forbids an employer “to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions or privileges of
employment, because of such individual’s race.” 42 U.S.C. § 2000e–2(a)(1). Under McDonnell
Douglas’s three-step framework, (1) a plaintiff must first establish a prima facie case of
discrimination; (2) if he does, the employer must give a legitimate reason for its conduct; and
(3) if the employer meets its burden, the plaintiff must show the employer’s reason is pretext.
Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 325–26 (3d Cir. 2015). I take each step in turn.
1. Prima Facie Case
To establish a prima facie case of discrimination under Title VII, a plaintiff must show
that (1) he belongs to a protected class, (2) he was qualified for the position, (3) he was subject to
an adverse employment action despite being qualified, and (4) the circumstances support an
inference of discrimination. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003).
Because Boeing concedes the first three elements (with the adverse employment actions being
Vaughan’s three-day suspension and termination), the only question for me is whether the record
supports an inference of discrimination.
For this Vaughan offers four pieces of evidence. First, that he was assigned to sweep far
in excess of what white employees were ever required to do. Second, that he was never trained
properly for his job as a bonder. Third, that white employees committed FOD violations and did
not face significant, if any, discipline. Finally, that white employees worked unauthorized
overtime and were not disciplined. 11

11

Comparator evidence is usually analyzed under the pretext step of the analysis, see
Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643–45 (3d Cir. 1998), but since it
9

I find there is enough here to create a discriminatory inference, but it is marginal, and
most of Vaughan’s evidence does not take him very far. Take sweeping first. To start, Vaughan
claims “the evidence is undisputed that [he] was assigned sweep duty far in excess of what may
have been required of his non-Black coworkers.” Notably, Vaughan fails to support that with
any citation to the record. And to the extent Vaughan testified that he observed no white
employees sweeping to the same extent as he did, he does not make any showing that these white
employees were “similarly situated” to him—that is, had recently been hired into a new role and
were awaiting certification. Key to the question whether employees are similarly situated is
whether there are any “differentiating or mitigating circumstances as would distinguish . . . the
employer’s treatment of them.” McCullers v. Napolitano, 427 F. App’x 190, 195 (3d Cir. 2011)
(quoting Radue v. Kimberly–Clark Corp., 219 F.3d 612, 617–18 (7th Cir. 2000)). Thus, without
passing on the validity of Boeing’s certifications justification, I find it a factor distinguishing
Boeing’s treatment of Vaughan. So as far as sweeping goes, Vaughan points to no one else
similarly situated but treated differently.
Moving past comparators but still on sweeping, Vaughan claims there is no evidence that
Boeing’s certifications were actually required to do bonding or fuel bag hanging work, and, in
any case, this justification for his menial assignments was never given at the time. As a surface
matter, it does seem that, regardless of whether Vaughan needed certifications or not, roughly a
full month is a long time for a nearly twenty-year employee to be told to sweep. But ultimately I
find this dispute immaterial because Vaughan’s sweeping has little if anything to do with this
case: Vaughan was suspended and fired long after his sweeping assignments stopped, long after
he had been transferred to a new supervisor, and long after he had—as he says—resumed
also goes to whether there is an inference of discrimination, it can be viewed as part of the prima
facie case, see id. at 646. In line with how the parties have briefed it, I will thus consider it here.
10

“meaningful work.” Moreover, he was suspended and fired for compliance infractions wholly
unrelated to sweeping. So nothing about sweeping creates a discriminatory inference.
The same reasoning applies to Vaughan’s lack-of-training claim. The record is clear that
Vaughan continually asked for more training over nearly his entire tenure as a bonder. But
Vaughan was neither suspended nor fired for his performance (as each disciplinary memo
indicates), and his only performance-related incident—failing properly to attach fuel bag hangers
in early January 2014—led to nothing more than an admonition from Muldowney. Vaughan’s
claim that Boeing did not train him therefore has nothing to do with the discipline he faced, and
fails to create a discriminatory inference. 12
Each of Vaughan’s last two pieces of evidence of intent relies on disparate treatment of
white comparators: he claims that white employees both (1) committed FOD violations and (2)
worked unauthorized overtime without facing the same discipline he did. Starting with FODviolator comparators, Vaughan is incorrect in claiming that his “testimony alone that he observed
FOD violations by non-Black employees that did not result in discipline is sufficient” to get past
summary judgment. Vaughan only identifies by name one such employee, and the Court of
Appeals has cautioned against “selectively choos[ing] a comparator,” holding (in the age
discrimination context) that a “decision adversely affecting an older employee does not become a
discriminatory decision merely because one younger employee is treated differently.”
Simpson, 142 F.3d at 645–46. Instead, the evidence must be viewed as a whole. Id. Here, the
records from Boeing’s internal investigation (Doc. 23-13 at 240–50)—which Vaughan elsewhere
12

Vaughan additionally emphasizes, but does not press as evidence of discriminatory
intent, that Moyer called him an “idiot” nearly three months before he was fired. Although I
believe courts should hesitate to dismiss racist comments as mere “stray remarks,” Ezold v. Wolf,
Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992), the epithet used here was
universal in character, not racially based, and significantly remote in time from Vaughan’s
termination.
11

relies on—show that whites were disciplined for FOD violations. Those records list all nine
other composite fabricators at Ridley Park who were formally disciplined for FOD violations
during the three-year period ending shortly after Vaughan’s termination. Seven were white, one
was black, and one was Hispanic. 13 These data do not render Vaughan untruthful, but they do
show that the cumulative evidence regarding how FOD violators were disciplined does not
support a discriminatory inference.
Unauthorized-overtime comparators are a slightly different matter. Here, Vaughan offers
two white employees, by name, who he says openly talked about taking unauthorized overtime
without facing discipline. Moreover, unlike in the FOD-violator context, the record contains no
data clearly establishing that white employees who took unauthorized overtime faced discipline.
And Boeing’s argument that I may not consider Vaughan’s testimony about what his two white
coworkers said because it is inadmissible hearsay is unavailing, as Federal Rule of Evidence
801(d)(2)(D) excludes from hearsay statements that are offered against a party and “made by the
party’s . . . employee on a matter within the scope of that relationship and while it existed.” 14 To
be sure, I recognize the sum total of this evidence is thin—for instance, Vaughan makes virtually
no showing that the two white employees were “similarly situated” to him in the sense of having

13

Differences in the specific disciplines given are addressed below under pretext.

14

The obvious rejoinder to this is that the employee statements in question involve
violating Boeing’s policies and thus cannot fairly be said to be on a matter within the scope of
employment. But I find such an interpretation of Rule 801(d)(2)(D) too narrow, because one of
the key allegations in this case is that Boeing allowed such violations to occur. Additionally, I
note that the traditional, agency-based view of “scope of employment”—under which, “[s]ince
few principals employ agents for the purpose of making damaging statements, the usual result
was exclusion”—has since given way to a “substantial trend [that] favors admitting statements
[merely] related to a matter within the scope of the . . . employment.” Fed. R. Evid.
801(d)(2)(D) advisory committee’s note (emphasis added). In the context of what is alleged
here, I think it is plain that the employees’ statements regarding their adherence (or lack thereof)
to Boeing’s overtime policies were “related to a matter” within the scope of their employment.
12

the same existing record of disciplinary infractions that he had. 15 Nonetheless, establishing a
prima facie case is not meant to be “onerous,” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981), and because I find there is enough evidence of disparate treatment regarding
unauthorized overtime to create a discriminatory inference, Vaughan has made out such a case.
2. Legitimate Nondiscriminatory Reason
As Vaughan concedes, Boeing has plainly met its light burden of articulating a legitimate
nondiscriminatory reason for suspending and terminating Vaughan: his repeated violations of
FOD rules and his violation of unauthorized-overtime rules.
3. Pretext
At this stage, “the burden shifts back to the employee, who, to defeat a motion for
summary judgment, must show that the employer’s articulated reason was a pretext for
intentional discrimination.” Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008).
To do this, the 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.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.
1994).
Vaughan fails to make this showing. He puts forth four pieces of evidence of pretext.
First, he again points to the data from Boeing’s internal investigation identifying other FOD
violators. He correctly notes that although the seven white employees were disciplined, they
were all given written warnings, while the black employee was suspended and the Hispanic
employee fired. But a closer look reveals a nondiscriminatory explanation: the white employees
15

Compare, in this respect, Maull v. Division of State Police, 39 F. App’x 769, 773–74
(3d Cir. 2002).
13

were all first-time offenders, while the black employee had previously received a written
warning and the Hispanic employee had previously received both a written warning and three
separate suspensions. Given Boeing’s progressive-discipline system, these outcomes are logical;
at the very least, the data fail to show that white employees were treated better than similarly
situated black and Hispanic employees.
Next, Vaughan refers back to his sweeping assignments, arguing that Boeing’s “shifting
explanations” for why Vaughan was given those assignments should cast doubt on the reasons
put forward for Vaughan’s suspension and termination. A plaintiff may indeed show pretext by
identifying “such . . . inconsistencies . . . in the employer’s proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them ‘unworthy of credence.’” Fuentes,
32 F.3d at 765 (emphasis omitted) (quoting Ezold, 983 F.2d at 523). But Vaughan has not done
this. Any inconsistencies about why he was assigned to sweep (that is, whether Boeing’s
certifications excuse is true or false) are wholly unrelated to Boeing’s “proffered legitimate
reasons for its action”—that is, why it suspended and fired Vaughan. Those reasons are separate
and clear from the record: Vaughan’s multiple compliance failures. As Vaughan has not
identified any inconsistencies in those reasons, he has not shown pretext.
Third, Vaughan claims the fact that he worked for Muldowney for less than two months
shows he was never given a chance to succeed and instead that Muldowney “was intent on
finding a way to terminate him.” But Vaughan’s multiple—and undisputed—violations during
those two months were for non-performance-related work rules, rudimentary matters of
workplace order and safety. As to such matters, it is generally “the prerogative of the employer
. . . to determine what constitutes a breach of protocol and the consequences that follow.”
Fasold v. Justice, 409 F.3d 178, 193–94 (3d Cir. 2005). So the shortness of the time that

14

Vaughan worked for Muldowney, when viewed against the nature of Vaughan’s breaches of
protocol during that time, does not show pretext.
Finally, Vaughan claims that Buxton’s stated positive view of Vaughan’s credibility
(developed through multiple counseling sessions) supports his testimony regarding similarly
situated white employees being treated differently. Necessarily, however, I have applied
throughout my analysis the fundamental precept that on summary judgment the “evidence of the
non-movant is to be believed.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Even
accepting Vaughan’s version of events, I conclude he has failed to show pretext. For this reason,
his discrimination claims fail as a matter of law.
B. Retaliation Claims
Vaughan also claims Boeing retaliated against him because he made sweeping-related
complaints to Buxton, which Buxton then communicated to Mulholland, the Boeing human
resources head. These claims similarly fail. Title VII’s antiretaliation provision “forbids
employer actions that ‘discriminate against’ an employee . . . because he has ‘opposed’ a practice
that Title VII forbids.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006)
(quoting 42 U.S.C. § 2000e–3(a)). 16 Retaliation claims also follow the three-step McDonnell
Douglas framework, see Daniels, 776 F.3d at 193, but here I need go no further than the prima
facie case to reject Vaughan’s claims.
To establish a prima facie case of retaliation, a plaintiff must show that (1) he engaged in
protected activity, (2) his employer took adverse action against him, and (3) there is a causal
connection between the protected activity and the adverse action. Id. Only the protected-activity
16

As with substantive discrimination claims, retaliation claims under the PHRA, see
Daniels v. Sch. Dist., 776 F.3d 181, 192–93 (3d Cir. 2015), and § 1981, see Estate of Oliva ex
rel. McHugh v. New Jersey, 604 F.3d 788, 798 (3d Cir. 2010), are governed by the same standard
as Title VII retaliation claims.
15

and causation prongs are relevant here, as plainly Boeing took adverse actions against Vaughan.
As to protected activity, both parties agree Vaughan engaged in it, even though they define the
activity differently.
But it is immaterial how the relevant activity is viewed, because Vaughan cannot show
that either form of activity was the cause of his suspension or firing. The reason is simple: there
is nothing in the record to suggest that Vaughan or his counselor ever communicated anything to
anyone at Boeing about any allegation of discrimination. As Buxton testified, the only thing he
told Mulholland about his otherwise-confidential sweeping-related exchange with Vaughan was
“what Mr. Vaughan had related to” him: he “was spending an unusual amount of time
sweeping.” Nothing more was said. Vaughan fails to show that anyone at Boeing, let alone the
decision makers in his suspension and firing (Muldowney and Bates), had any knowledge either
that (1) Vaughan told Buxton he felt unfairly treated because he was the only black employee in
his area, or (2) about Buxton’s belief that Vaughan’s sweeping assignments were possibly
connected to discrimination.
“[F]or protected conduct to be a . . . factor in a decision, the decisionmakers must be
aware of the protected conduct.” Ambrose v. Township of Robinson, 303 F.3d 488, 493 (3d Cir.
2002). 17 Here, because Vaughan cannot show this, he instead asks me to “infer from the facts
related to” the Buxton–Mulholland exchange that Mulholland next told Garehan that “Vaughan
believed he was being discriminated against,” and finally Garehan conveyed that view to
Muldowney. But that asks me not only to “heap inference upon inference,” Antol v. Perry, 82
F.3d 1291, 1297 (3d Cir. 1996), but to assume without any evidence that Mulholland somehow
17

I note that it is no longer sufficient for protected activity to be merely one factor in the
decision; rather, “retaliation claims require proof that the desire to retaliate was the but-for cause
of the challenged employment action.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517,
2528 (2013).
16

knew that Vaughan had engaged in protected activity. On summary judgment, the entitlement of
the non-moving party is limited to all “reasonable” inferences. Hampton v. Borough of Tinton
Falls Police Dep’t, 98 F.3d 107, 112 (3d Cir. 1996). Following Vaughan’s suggested approach
would be a bridge too far. For this reason, Vaughan fails to show a causal connection between
his protected activity and his suspension or termination, and thus fails to establish a prima facie
case of retaliation.
IV.

Conclusion
Boeing’s Motion for Summary Judgment will be granted and Vaughan’s discrimination

and retaliation claims will be dismissed. An appropriate order follows.

/s/ Gerald Austin McHugh
United States District Judge

17