Houser et al v. Visionquest National LTD

Filing 66

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Yvette Kane on 11/29/17. (rw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DONALD HOUSER,
YVETTE BRAXTON,
WILLIAM HOUSER,
SANTELL MILLER,
Plaintiffs
v.
VISIONQUEST NATIONAL LTD.,
Defendant

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No. 1:15-cv-00327
(Judge Kane)

MEMORANDUM
Plaintiffs Donald Houser (“DHouser”), William Houser (“WHouser”), Yvette Braxton
(“Braxton”), and Santell Miller (“Miller”) filed a complaint against Defendant VisionQuest
National Ltd. (“VisonQuest”), on February 17, 2015, alleging that they were fired by
VisionQuest due to their race and that Defendant retaliated against them, all in violation of 42
U.S.C. § 1981. (Doc. No. 1.) Miller subsequently settled with Defendant.
Defendant filed motions for summary judgment with respect to the three remaining
plaintiffs on July 14, 2017. (Doc. Nos. 38, 41, 44.) The motions have been fully briefed.
Pursuant to Plaintiffs’ request, the Court held oral argument on the motions on Friday, October
20, 2017. For the reasons that follow, the Court will deny Defendant’s motions for summary
judgment.
I.

BACKGROUND1
A. Plaintiffs Donald and William Houser

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The following relevant facts of record, taken from Defendant’s statements of undisputed
material facts (Doc. Nos. 39, 42, 45), are undisputed unless otherwise noted. Defendant’s
statements of material facts contain specific citations to the record in numbered paragraphs. The
Court also incorporates facts set forth in Plaintiffs’ responses to Defendant’s statements of
material facts (Doc. Nos. 50-52), as well as other documents of record, where appropriate.
1

Defendant VisionQuest provides juvenile rehabilitation services and operated several
facilities in Pennsylvania. (Doc. Nos. 39 ¶ 110, 42 ¶ 81, 51 ¶ 110, 52 ¶ 81.) DHouser, who is
African-American, was hired by Defendant in May 2011 as a childcare worker at Defendant’s
South Mountain location. (Doc. Nos. 39 ¶ 15, 51 ¶ 15.) Over the next two years, DHouser was
promoted three times and received $25,000 in raises. (Doc. Nos. 39 ¶¶ 18-27, 51 ¶¶ 18-27.)
During his period of employment, other African-Americans worked for Defendant at South
Mountain, and Defendant was interested in hiring more African-American staff members. (Doc.
Nos. 39 ¶¶ 36-41, 51 ¶¶ 36-41.)
WHouser, who is African-American, was hired as a direct care worker at Defendant’s
South Mountain location in April 2012. (Doc. Nos. 42 ¶¶ 17-18, 52 ¶¶ 17-18.) In seven months,
WHouser was promoted and offered a $9,500 raise. (Doc. Nos. 42 ¶¶ 19, 21, 52 ¶¶ 19, 21.)
WHouser was tasked with training employees on diversity issues. (Doc. Nos. 42 ¶ 31, 52 ¶ 31.)
In addition, WHouser brought more African-American staff members to South Mountain
pursuant to a directive from Defendant’s administrators. (Doc. Nos. 42 ¶ 34, 52 ¶ 34.) WHouser
testified that white staff members were jealous of WHouser’s successes at South Mountain.
(Doc. Nos. 42 ¶ 36, 52 ¶ 36.)
From 2012 to 2013, Plaintiffs claim that numerous racial incidents occurred at
Defendant’s South Mountain and Breezewood locations. For example, staff members were
accused of calling children racist names (Doc. Nos. 47-1 at 49, 47-3 at 24-25); white staff
members refused to work with African-American staff members (Doc. No. 47-3 at 23); and four
employees made a series of racist YouTube videos on Defendant’s property that were viewed by
other employees (Doc. No. 47-5 at 19-20). Plaintiffs felt that white staff members were not

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being appropriately disciplined for racist behavior, and DHouser reported and recommended
punishment for racist incidents. (Doc. No. 47-1 at 49-50, 53, 56.)
In April 2013, two of Defendant’s administrators, Jim Yester and Gerry Fox, received an
email (“April 2013 email”) from a VisionQuest employee containing links to newspaper articles
that discussed DHouser’s and WHouser’s criminal histories. (Doc. Nos. 39 ¶ 48, 42 ¶¶ 41-42, 51
¶ 48, 52 ¶¶ 41-42.) This email did not mention race. (Doc. Nos. 39 ¶ 51, 42 ¶ 43, 51 ¶ 51, 52 ¶
43.) Fox questioned DHouser and asked whether DHouser spent time in prison for his crimes.
(Doc. Nos. 39 ¶¶ 54-56, 51 ¶¶ 54-56.) DHouser responded “no” to this question, although there
is dispute as to what part of DHouser’s criminal record he thought he was being questioned
about. (Doc. Nos. 39 ¶¶ 55-56, 51 ¶¶ 54-56.) However, DHouser had spent ten years and ten
months in prison. (Doc. Nos. 39 ¶ 57, 51 ¶ 57.) Around the same time, WHouser was told that
his “rap sheet” was not within his personnel file. (Doc. Nos. 42 ¶ 39, 52 ¶ 39.) WHouser went
home to get his criminal background documentation for his file. (Doc. Nos. 42 ¶¶ 44-45, 52 ¶¶
44-45.)
As part of its investigation into DHouser’s and WHouser’s criminal history, Defendant
reviewed DHouser’s and WHouser’s employment applications. (Doc. Nos. 39 ¶ 72, 42 ¶ 48, 51
¶ 72, 52 ¶ 48.) In these applications, DHouser and WHouser were asked whether they had any
criminal convictions, to which they responded in the affirmative. (Doc. Nos. 39 ¶ 73, 42 ¶ 49, 51
¶ 73, 52 ¶ 49.) The application asked them to elaborate on any convictions. (Doc. Nos. 39 ¶ 72,
42 ¶ 50, 51 ¶ 72, 52 ¶ 50.)
DHouser wrote, “1997 drug offense.” (Doc. Nos. 39 ¶ 7, 51 ¶ 7.) DHouser signed the
employment application, representing that the information he provided was true and complete.
(Doc. Nos. 39 ¶ 94, 51 ¶ 94.) DHouser recognized that providing false information on his

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application could result in dismissal from employment. (Doc. Nos. 39 ¶ 95, 51 ¶ 95.) DHouser
then outlined his criminal history in more detail in a separate letter, which was not signed. (Doc.
Nos. 39 ¶¶ 78-80, 51 ¶¶ 78-80.) In this letter, DHouser wrote, in part, that he “was found not
guilty of all the charges except the possession of drugs.” (Doc. Nos. 39 ¶ 82, 51 ¶ 82.)
However, DHouser was actually convicted of charges that included criminal conspiracy,
burglary, robbery, and simple assault. (Doc. Nos. 39 ¶¶ 84-86, 51 ¶¶ 84-86.) The parties dispute
whether DHouser clarified his convictions later in the letter. (Doc. No. 51 ¶¶ 80, 82.)
Elaborating on his criminal history, WHouser wrote on his application, “Only as a
juvenile, never as an adult. Will explain in interview.” (Doc. Nos. 42 ¶ 51, 52 ¶ 51.) However,
WHouser was convicted of a crime when he was an adult; at age 19, he pled guilty to robbery.
(Doc. Nos. 42 ¶ 56, 52 ¶ 56, 59 at 144.) In addition, WHouser pled no contest to criminal
attempted homicide when he was 19 years old. (Doc. No. 42 ¶ 58, 52 ¶ 58.)
Defendant terminated DHouser’s and WHouser’s employment about ten days after
Defendant received the email questioning their criminal history (Doc. Nos. 39 ¶¶ 48, 104, 51 ¶
104, 59-3 at 2). When DHouser and WHouser were terminated, Defendant’s administrators told
them that their termination was due to their dishonesty about their criminal history. (Doc. Nos.
39 ¶ 105, 42 ¶ 74, 51 ¶ 105, 52 ¶ 74.) However, DHouser and WHouser claim that they were
honest about their criminal backgrounds in their interviews and throughout their employment
with Defendant. (Doc. Nos. 51 ¶¶ 13, 15, 17, 78-82, 100-101, 52 ¶¶ 62-64.)
DHouser alleges that during his interview with employee Barry Williams, he and
Williams reviewed DHouser’s background check and convictions, which Williams disputes.
(Doc. No. 51 ¶¶ 13, 15.) DHouser also states that he taught classes about his prison experience
at South Mountain and that numerous administrators, including South Mountain Chief

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Administrator Kris Smihal, knew about and discussed his prison experience with children
residing at South Mountain. (Doc. Nos. 47-1 at 23, 51 ¶ 17.)
WHouser avers that he was unintentionally misleading on his employment application.
He claims that when he was sentenced at nineteen years old, he was already in prison for a crime
committed while he was a juvenile. (Doc. No. 47-3 at 46.) Therefore, when he filled out
Defendant’s employment application years later, he thought that all of his convictions were from
when he was a juvenile. (Id.) He says he explained his different convictions and sentences in his
interview with Williams. (Id.)
Defendant had an Employee Handbook as well as policies prohibiting discrimination and
retaliation. (Doc. Nos. 39 ¶ 116, 42 ¶ 87, 51 ¶ 116, 52 ¶ 87.) Defendant’s employees received
training on cultural diversity at the time of their hire and through ongoing trainings internally by
Williams. (Doc. Nos. 39 ¶¶ 114-15, 42 ¶¶ 85-86, 51 ¶¶ 114-15, 52 ¶¶ 85-86.)
B. Plaintiff Yvette Braxton
Braxton, who is African-American, was hired as a Case Manager at Defendant’s
South Mountain location in May 2011. (Doc. Nos. 45 ¶¶ 12-13, 50 ¶¶ 12-13.) Before Braxton
started her Case Manager position, Defendant contacted her and offered her the advanced
position of Director of Treatment at South Mountain, at an annual salary of $35,000. (Doc. Nos.
45 ¶ 14, 50 ¶ 14.) Months later, in October 2011, Defendant promoted Braxton to Director of
Compliance and Treatment at South Mountain. (Doc. Nos. 45 ¶ 15, 50 ¶ 15.) Her promotion
included a financial raise of approximately 30%, which resulted in an annual salary of $45,000,
and entrusted Braxton with additional responsibilities. (Doc. Nos. 45 ¶¶ 16-17, 50 ¶¶ 16-17.)
From 2012 to 2013, Braxton claims to have observed and reported numerous raciallycharged incidents at South Mountain. For example, she describes attempting to discipline an

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employee for using racist language in the workplace, but being thwarted by Smihal. (Doc. No.
47-5 at 13-14.) She felt that on numerous occasions, Smihal failed to discipline white staff
members for racist conduct. (Id. at 13-14, 16-18, 24.) She also recalled conversations with
Smihal that she perceived to be racist. (Id. at 18.)
In January 2013, DHouser became the Chief Administrator at Defendant’s Breezewood
location. (Doc. Nos. 45 ¶ 18, 50 ¶ 18.) Braxton alleges in her complaint that she then requested
a transfer to Breezewood. (Doc. Nos. 45 ¶ 21, 50 ¶ 21.) Braxton testified, “I received a phone
call from Jerry Fox, And I don’t know Jerry’s position, but he a corporate person . . . and Jerry
talked to me about possibly transferring to Breezewood. And his words were they need strong
African American female staff there, and we think you would make a great addition to the
Breezewood Camp.” (Doc. Nos. 45 ¶ 23, 50 ¶ 23.) Braxton agreed that it was important from a
clinical perspective to have an African-American in a predominant role at the Breezewood
location. (Doc. Nos. 45 ¶ 25, 50 ¶ 25.) Braxton testified that her supervisor at South Mountain,
Smihal, asked her not to leave. (Doc. Nos. 45 ¶ 26, 50 ¶ 26.)
Prior to transferring to Breezewood, Defendant asked Braxton to find and train a
replacement to work at the South Mountain location, which she did. (Doc. Nos. 45 ¶¶ 29-30, 50
¶¶ 29-30.) On April 1, 2013, Braxton started her new position at Breezewood as a Clinical
Supervisor. (Doc. Nos. 45 ¶ 31, 50 ¶ 31.) Braxton claims that when she arrived, racist incidents
were occurring at Breezewood, in part because white staff members were unhappy that DHouser
brought another black employee to Breezewood. (Doc. No. 47-5 at 36-38.) Braxton was
allegedly called derogatory names. (Id. at 36.) Numerous staff meetings were held to address
the racial tension at Breezewood. (Id. at 37.)

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On or about April 24, 2013, DHouser was terminated from his position at Breezewood.
(Doc. Nos. 45 ¶ 32, 50 ¶ 32.) Also in April, Defendant held a finance meeting to discuss
financial issues at Breezewood. (Doc. Nos. 45 ¶ 33, 50 ¶ 33.) Braxton acknowledges that
Defendant’s CEO suggested eliminating a position, including possibly Braxton’s position, but
that Fox suggested eliminating a different position. (Doc. Nos. 45 ¶ 34, 50 ¶ 34.) Yester
testified that after Defendant terminated DHouser, Fox became the interim Chief Administrator
at Breezewood. (Doc. Nos. 45 ¶ 36, 50 ¶ 36.)
In addition to Breezewood, only two of Defendant’s locations, the New Directions
Shelter and South Mountain, employed a Clinical Supervisor in addition to a Chief
Administrator. (Doc. Nos. 45 ¶ 38, 50 ¶ 38.) The New Directions Shelter and South Mountain
were two of Defendant’s larger locations, with an average census (number of children residents)
of 78 and 59, respectively. (Doc. Nos. 45 ¶ 39, 50 ¶ 39.) Defendant’s smaller locations did not
employ a Clinical Supervisor. (Doc. Nos. 45 ¶ 40, 50 ¶ 40.) The following locations did not
employ a Clinical Supervisor: (a) VisionQuest Academy at Franklin (average census 49), (b)
VisionQuest Academy at Standing Timbers (average census 27), (c) Lee Preparatory Academy at
Meadville (average census 29), (d) Lee Preparatory Academy in Philadelphia (average census
18), and (e) Bucks County Group Home (average census 6). (Doc. Nos. 45 ¶ 41, 50 ¶ 41.)
Breezewood’s census was, at best, one-half of the census of the two Defendant locations
employing Clinical Supervisors, and at one point was only one-third of the census of those
locations. (Doc. Nos. 45 ¶ 43, 50 ¶ 43.) Defendant determined that it was in its best interest to
eliminate Braxton’s position at Breezewood, laying her off on May 21, 2013. (Doc. Nos. 45 ¶
45, 50 ¶ 45.) Defendant informed Braxton that the layoff was due to financial issues at the
Breezewood location. (Doc. Nos. 45 ¶ 46, 50 ¶ 46.)

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In the 2013 fiscal year ending in June 2013 (within one month of Braxton’s departure),
Breezewood’s financial loss was $101,831. (Doc. Nos. 45 ¶ 49, 50 ¶ 49.) By way of
comparison, the Breezewood location had made a net profit in the 2011 and 2012 fiscal years of
$86,086 and $93,844, respectively. (Doc. Nos. 45 ¶ 50, 50 ¶ 50.) Further, the census at
Breezewood declined in the months after Braxton’s layoff. (Doc. Nos. 45 ¶ 51, 50 ¶ 51.) The
census fell from an average of 27 residents in the last quarter of 2012 to 21 residents in the last
quarter of 2013 – nearly a 20% decline. (Doc. Nos. 45 ¶ 52, 50 ¶ 52.) After her termination,
Defendant did not replace Braxton. (Doc. Nos. 45 ¶ 53, 50 ¶ 53.) Defendant laid off three other
people from mid-January 2013 through mid-September 2013, all of whom were white. (Doc.
Nos. 45 ¶ 56, 50 ¶ 56.) Defendant’s Vice President of Administration, Beth Rosica, testified
that Defendant closed 6 facilities in the past few years, including the Breezewood facility, which
ultimately closed in September 2015. (Doc. Nos. 45 ¶ 57, 50 ¶ 57.)
However, prior to her termination, Braxton claims she felt targeted as the only AfricanAmerican member of the management team at Breezewood. (Doc. No. 47-5 at 44.) She asserts
that her schedule was changed when the other white managers’ schedules were not and that she
was called to meetings on her days off that the white managers were not forced to attend. (Id. at
42-44) In addition, she questions the financial motive of her termination, as Fox had recently
spoken to her about giving her a raise and Breezewood’s census did not change between her
arrival and her termination. (Id. at 44.) Furthermore, although Defendant points to other
employees who were terminated for financial reasons around the same time as Braxton, Braxton
indicates that these employees were terminated three to four months before and after her
termination. (Doc. No. 57 at 200-01.) Finally, although the Breezewood facility eventually

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closed due to financial difficulties, it did not close under September 2015, over two years after
Braxton was allegedly terminated for financial reasons. (Id. at 190)
During her deposition, Braxton testified that she had no recollection of racist or
discriminatory statements made by Defendant supervisors Yester or Fox. (Doc. Nos. 45 ¶ 59, 50
¶ 59.) Defendant had an Employee Handbook as well as policies prohibiting discrimination and
retaliation. (Doc. Nos. 45 ¶ 60, 50 ¶ 60.) Defendant employees received training on cultural
diversity at the time of their hire and through ongoing trainings internally by Williams. (Doc.
Nos. 45 ¶ 61, 50 ¶ 61.)
II.

LEGAL STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is

warranted “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). A factual dispute is
material if it might affect the outcome of the suit under the applicable law, and it is genuine only
if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a
verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49
(1986). At summary judgment, the inquiry is whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it is so one-sided that one party must
prevail as a matter of law. Id. at 251-52. In making this determination, the Court must “consider
all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City
Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
The moving party has the initial burden of identifying evidence that it believes shows an
absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d
135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of

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evidence to support the non-moving party’s claims, “the non-moving party must rebut the motion
with facts in the record and cannot rest solely on assertions made in the pleadings, legal
memoranda, or oral argument.” Berckeley Inv. Grp. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir.
2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving 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 at trial,” summary judgment is warranted.
Celotex, 477 U.S. at 322. With respect to the sufficiency of the evidence that the non-moving
party must provide, a court should grant a motion for summary judgment when the non-movant’s
evidence is merely colorable, conclusory, or speculative. Anderson, 477 U.S. at 249-50. There
must be more than a scintilla of evidence supporting the non-moving party and more than some
metaphysical doubt as to the material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Further, a party may not defeat a motion for
summary judgment with evidence that would not be admissible at trial. Pamintuan v. Nanticoke
Mem’l Hosp., 192 F.3d 378, 387 (3d Cir. 1999).
III.

DISCUSSION
A. Race Discrimination Claims
1. Legal Standard Applicable to Race Discrimination Claims
In this case, Plaintiffs bring claims of race discrimination and retaliation under 42 U.S.C.

§ 1981. Section 1981 provides, in relevant part, that “[a]ll persons . . . shall have the same right
in every State and Territory to make and enforce contracts.” Id. “[T]he term ‘make and enforce
contracts’ includes the making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Id.
When employment discrimination claims are brought under § 1981, courts apply the tests used to

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evaluate employment discrimination claims brought under Title VII of the Civil Rights Act of
1964. 42 U.S.C. § 2000e et seq.; Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 267 (3d
Cir. 2010). There are two tests that are applied to such race discrimination claims, but the parties
agree that the McDonnell Douglas analysis governs this case.
Under the McDonnell Douglas test, a plaintiff must first establish a prima facie case of
race discrimination, which includes establishing that (1) the plaintiff is a member of a protected
class, (2) he was qualified for his position, (3) he suffered an adverse employment action, and (4)
the circumstances raise an inference of unlawful discrimination. Sarullo v. U.S. Postal Serv.,
352 F.3d 789, 797 (3d Cir. 2003). If a plaintiff meets this burden, the defendant must “articulate
some legitimate, nondiscriminatory reason” for firing the plaintiff. Id. If the defendant does so,
the plaintiff must show that the defendant’s reason for firing him is pretext. Id.
2. Plaintiff Donald Houser’s Race Discrimination Claim
The parties agree that DHouser is a member of a protected class and suffered an adverse
employment action. However, the parties disagree as to whether DHouser was qualified for his
position and whether the circumstances of his termination raise an inference of unlawful
discrimination. The parties also dispute whether DHouser sufficiently established pretext.
a. Qualifications
Defendant argues that DHouser fails to state a prima facie case of race discrimination in
that he cannot show that he was qualified for his positions with Defendant. Specifically,
Defendant argues that DHouser was unqualified because he was dishonest or misleading on his
employment application, which is also the legitimate reason proffered by Defendant for
DHouser’s termination. (Doc. No. 40 at 20, 23.) Defendant cites to Nelson v. Devry, No. 074436, 2009 WL 1213640, at *6 (E.D. Pa. Apr. 23, 2009), for the proposition that “[w]hen an

11

employee violates a company policy resulting in that employee’s discharge, it is clear that such
an employee is not meeting the employer’s legitimate expectations, and, thus, is not qualified for
the position.” (Doc. No. 40 at 20.)
However, numerous circuit courts have found that “a court may not consider the
employer’s alleged nondiscriminatory reason for taking an adverse employment action when
analyzing the prima facie case.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 574 (6th
Cir. 2003); Melendez v. Autogermana, Inc., 622 F.3d 46, 51 (1st Cir. 2010); EEOC v.
Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193 (10th Cir. 2000). Doing so would “bypass
the burden-shifting analysis and deprive the plaintiff of the opportunity to show that the
nondiscriminatory reason was in actuality a pretext designed to mask discrimination.” Wexler,
317 F.3d at 574; Melendez, 622 F.3d at 51; Horizon, 220 F.3d at 1193. This reasoning has been
adopted by various district courts in the Third Circuit, see Ace v. Armstrong Utils. Inc., No. 14526, 2016 WL 738051, at *25 (W.D. Pa. Feb. 25, 2016) (“To require Plaintiff to rebut this reason
in order to establish a prima facie case of discrimination improperly imports into the prima facie
analysis the later stages of the McDonnell Douglas test.”); Miller v. Keystone Blind Ass’n/TPM,
No. 11-887, 2013 WL 93651, at *5 (W.D. Pa. Jan. 8, 2013); Nunez v. Temple Prof’l Assocs.,
No. 03-cv-6226, 2005 WL 435238, at *4 (E.D. Pa. Feb. 22, 2005), and Nelson does not mention
this line of decisions.2 Therefore, Nelson’s reasoning is unpersuasive.

2

In addition, Nelson’s reasoning has been further whittled away by numerous cases that indicate
that “whether a plaintiff subjectively fulfilled an employer’s expectations is more appropriately
considered during the pretext stage of the analysis.” Sweeney v. Roche Diagnostics Corp., No.
4:11-cv-01691, 2013 WL 6731049, at *7 (M.D. Pa. Dec. 19, 2013); Weldon v. Kraft, Inc., 896
F.2d 793, 798 (3d Cir. 1990); Fowle v. C & C Cola, 868 F.2d 59, 64-65 (3d Cir. 1989).
Accordingly, Nelson’s discussion of “the employer’s legitimate expectations” in the context of
the prima facie case of discrimination is unpersuasive.
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Pursuant to the above-cited precedent, consideration of DHouser’s dishonesty on his
employment application during Plaintiff’s prima facie case would deny him the opportunity to
show that Defendant’s proffered nondiscriminatory reason is pretext. Therefore, this Court
declines to find DHouser unqualified due to his dishonesty on his employment application.
Evidence of DHouser’s dishonesty is properly analyzed during the second and third parts of the
McDonnell Douglas test.
Aside from his dishonesty on his employment application, Defendant does not offer any
reason why DHouser was unqualified for his position. (Doc. No. 40 at 20-21.) In addition,
Defendant admits to promoting DHouser multiple times during his first two years of
employment. (Doc. No. 39 ¶¶ 18-30); see Miller, 2013 WL 93651, at *5 (“First, Defendant
promoted Plaintiff to the position of Lead Attendant, thus it cannot easily contend that he was
‘unqualified’ for the position.”). These promotions were accompanied by significant salary
increases. (Doc. No. 39 ¶¶ 18-30.) DHouser also received positive performance evaluations and
various awards during his tenure with Defendant. (Id. ¶¶ 17-18, 20, 28, 34.) Consequently, this
Court finds that DHouser has met his initial burden of establishing that he was qualified for his
positions with Defendant.
b. Inference of Discrimination & Pretext
In order to raise an inference of discrimination, the fourth element of a prima facie case, a
plaintiff in a race discrimination action must show acts that, “if otherwise unexplained, are more
likely than not based on the consideration of impermissible factors.” Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 577 (1978); see Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 356 (3d
Cir. 1999) (explaining that “Supreme Court precedent . . . clearly require[s] only ‘evidence
adequate to create an inference that an employment decision was based on an illegal

13

discriminatory criterion’”). A plaintiff may raise this inference by showing that similarlysituated individuals outside the protected class were treated more favorably than the plaintiff,
Matczak v. Frankford Candy and Chocolate Co., 136 F.3d 933, 939 (3d Cir. 1997); Hileman v.
Penelec/FirstEnergy Corp., No. 1:14-cv-1771, 2017 WL 2778562, at *5 (M.D. Pa. June 27,
2017), but the test is a flexible one, and different factual circumstances may call for different
analyses. Pivirotto, 191 F.3d at 357.
In this case, there exist disputed material facts, construed in the light most favorable to
DHouser, from which a reasonable factfinder could infer that unlawful discrimination motivated
Defendant’s decision to terminate DHouser’s employment. The record shows that Defendant
may have known about DHouser’s criminal history for almost two years before it fired him for
lying about that history. (Doc. Nos. 47-1 at 22-28, 47-13 at 16.) DHouser claims that Yester,
who made the decision to terminate his employment, and other administrators and managementlevel employees knew about his criminal history and supported his employment by Defendant
prior to the receipt of the April 2013 email. (Doc. Nos. 47-1 at 26-29, 47-13 at 16.) Moreover,
Defendant did not terminate white employees for racist behavior engaged in on Defendant’s
property, but terminated DHouser for lying on his application almost two years after he
submitted the application, after many upper-level employees allegedly knew about his criminal
background, and after he received numerous promotions, raises, and awards. (Doc. No. 47-1 at
76-77.) These disputed facts permit a sufficient inference of race discrimination to establish a
prima facie case, requiring Defendant to articulate a “legitimate, nondiscriminatory reason”
justifying its decision to terminate DHouser’s employment.

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Defendant’s proffered legitimate reason for terminating DHouser’s employment is
DHouser’s dishonesty on his employment application.3 “[T]o avoid summary judgment, the
plaintiff’s evidence rebutting the employer’s proffered legitimate reasons must allow a factfinder
reasonably to infer that each of the employer’s proffered non-discriminatory reasons was either a
post hoc fabrication or otherwise did not actually motivate the employment action (that is, the
proffered reason is a pretext).” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). “[T]he nonmoving plaintiff must demonstrate 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.
DHouser has identified sufficient disputed material facts, construed in the light most
favorable to DHouser, that could support a reasonable factfinder’s conclusion that Defendant’s
reason for terminating him was pretextual. As discussed above, Defendant claims to have
terminated DHouser for lying about his criminal history on his employment application (Doc.
Nos. 39 ¶ 105, 51 ¶ 105), although DHouser maintains that he told Defendant’s employees in his
interview and throughout his employment about his criminal history and prison time (Doc. No.
51 ¶¶ 13, 15, 17, 78-82). In light of the racial issues occurring at South Mountain and
3

Although DHouser disputes the fact that he was dishonest on his application (Doc. Nos. 39 ¶
76, 51 ¶ 76), he agrees that he wrote “1997 drug offense” in the criminal background section of
the application, in spite of his other convictions. (Doc. Nos. 39 ¶¶ 74-75, 51 ¶¶ 74-75.) He also
agrees that in an explanatory letter outlining his criminal history, he wrote that he was charged
with disorderly conduct, criminal conspiracy, and possession of drugs, but was “found not guilty
of all the charges except the possession of drugs.” (Doc. Nos. 39 ¶¶ 80-82, 51 ¶¶ 80-82.)
However, DHouser was convicted of numerous crimes aside from drug possession. (Doc. Nos.
39 ¶¶ 83-84, 51 ¶¶ 83-84.) DHouser recognized that by signing the application, he represented
that the information was true and complete to the best of his knowledge, and that to the extent his
application contained false or misleading information, it could result in disqualification or
discharge from employment. (Doc. Nos. 39 ¶¶ 94-95, 51 ¶¶ 94-95.) Defendant has therefore
articulated a legitimate, non-discriminatory reason for DHouser’s termination.
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Breezewood during DHouser’s employment and his attempts to call attention to and remedy
these issues, a reasonable factfinder could find Defendant’s proffered nondiscriminatory reason
for DHouser’s termination to be pretextual. Therefore, this Court will deny Defendant’s motion
for summary judgment with respect to DHouser’s race discrimination claim.
3. Plaintiff William Houser’s Race Discrimination Claim
The parties agree that WHouser is a member of a protected class and suffered an adverse
employment action. However, the parties disagree as to whether WHouser was qualified for his
position and whether the circumstances of his termination raise an inference of unlawful
discrimination and pretext.
a. Qualifications
Defendant argues that WHouser is unqualified because the evidence shows that he was
dishonest or misleading on his employment application. (Doc. No. 43 at 20.) However, based
on the discussion supra regarding DHouser’s qualifications and considering WHouser’s
numerous promotions, raises, and awards during his employment with Defendant (Doc. Nos. 42
¶¶ 19, 21, 25, 52 ¶¶ 19, 21, 25), this Court finds WHouser qualified for his positions with
Defendant.
b. Inference of Discrimination & Pretext
In this case, there exist disputed material facts, construed in the light most favorable to
WHouser, from which a reasonable factfinder could infer that unlawful discrimination motivated
Defendant’s decision to terminate his employment. The record shows that Defendant may have
known about WHouser’s criminal history for ten months before it terminated him for lying about
that history (Doc. No. 47-3 at 39-41), as WHouser claims that he reviewed his background check
with Williams during his interview and that he saw Williams hand his background check to a

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secretary to fax to Defendant’s corporate office (Doc. No. 52 ¶ 55). In addition, WHouser
complained about racist staff behavior, some of which was directed at him, and explained that
white staff were jealous of the success he and other African-American staff members were
having with the children under their care. (Doc. No. 47-3 at 23-25.) WHouser even recounts an
incident in which his supervisor, Smihal, made racially insensitive comments in front of him.
(Doc. No. 47-3 at 31.) He was then fired after receiving various promotions, raises, and positive
evaluations. (Doc. Nos. 42 ¶¶ 19, 21, 25, 52 ¶¶ 19, 21, 25.) These disputed facts permit a
sufficient inference of race discrimination to establish a prima facie case and require Defendant
to articulate a legitimate, nondiscriminatory reason justifying its decision to terminate
WHouser’s employment.
Although Defendant proffered a legitimate reason for terminating WHouser’s
employment, namely, WHouser’s dishonesty on his employment application, the abovedescribed disputed facts provide a sufficient basis for a reasonable factfinder to infer that
Defendant’s proffered nondiscriminatory reason for terminating WHouser’s employment was
pretextual and “did not actually motivate the employment action.” Fuentes, 32 F.3d at 764.
Therefore, this Court will deny Defendant’s motion for summary judgment with respect to
WHouser’s race discrimination claim.
4. Plaintiff Yvette Braxton’s Race Discrimination Claim
The parties agree that Braxton is a member of a protected class, was qualified for her
position, and suffered an adverse employment action. However, the parties disagree as to
whether the circumstances of her termination raise an inference of unlawful discrimination.
In this case, there exist disputed material facts, construed in the light most favorable to
Braxton, from which a reasonable factfinder could infer that unlawful discrimination motivated

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Defendant’s decision to terminate Braxton’s employment, and therefore, Braxton has established
a prima facie case of race discrimination. As the only African-American member of the
Breezewood location’s management team, Braxton claims that her schedule was changed when
white managers’ schedules were not changed. (Doc. No. 47-5 at 43.) She also testified that she
was also forced to work nights and weekends, and was called to meetings on her days off to
which white managers were not called. (Id. at 43-44.) Braxton also avers that she attempted to
discipline a white employee for racist behavior, but her attempts were thwarted. (Doc. No. 47-5
at 13-14.)
In response, Defendant claims that Braxton’s employment was terminated for a
legitimate, nondiscriminatory reason, specifically, for financial reasons. (Doc. Nos. 45 ¶ 46, 50 ¶
46.) However, a few months prior to Braxton’s termination, Fox allegedly spoke to her about
giving her a $2,000-$3,000 raise. (Doc. No. 47-5 at 44.) In addition, the financial records
submitted by Defendant show that when Braxton was terminated, Breezewood had the same
number of children residents as it did when she initially requested transfer to Breezewood. (Doc.
No. 47-15 at 39-45.) Although the number of residents declined after Braxton was terminated,
the numbers were higher while Braxton was employed at Breezewood compared to subsequent
months. (Doc. No. 47-15 at 43-51.) In addition, although Defendant claims that other
employees were terminated for financial reasons in close proximity to Braxton’s termination,
those employees were terminated three to four months before and after Braxton’s termination.
(Doc. No. 47-14 at 18.) Further, Braxton identifies racial incidents that occurred while she was
employed at South Mountain and Breezewood, including incidents in which she requested
punishment for white staff members who used racial slurs in the workplace. (Doc. No. 47-5 at
14-16.) Braxton has pointed to sufficient disputed material facts from which a reasonable

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factfinder could infer that Defendant’s articulated legitimate, nondiscriminatory reason for
terminating her employment was a pretext for discrimination. Therefore, the Court will deny
Defendant’s motion for summary judgment with respect to Braxton’s race discrimination claim.
B. Retaliation Claims
1. Legal Standard Applicable to Retaliation Claims
The McDonnell Douglas burden-shifting test also applies to retaliation claims under
§ 1981. To establish a prima facie case of retaliation, Plaintiffs must establish that (1) they
engaged in protected activity, (2) Defendant took an adverse action against them, and (3) there
was a causal connection between their participation in the protected activity and the adverse
action. Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 798 (3d Cir. 2010). In
addition, “[i]n a retaliation case a plaintiff must demonstrate that there had been an underlying
section 1981 violation.” Id. If Plaintiffs meet this burden, Defendant must articulate a legitimate
reason for terminating Plaintiffs’ employment. Id. If Defendant succeeds, Plaintiffs must show
that Defendant’s reasons for firing them were pretext. Id.
“To engage in ‘protected activity’ a plaintiff cannot complain about merely unfair
treatment, rather they must complain about discrimination based on membership in a protected
class.” McClain v. Avis Rent A Car Sys., Inc., 648 F. App’x 218, 224 (3d Cir. 2016).
Complaints may be in the form of formal disciplinary charges or grievances against an employer,
and may also include “informal protests of discriminatory employment practices, including
making complaints to management.” Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir.
2015) (internal quotations omitted); Merke v. Lockheed Martin, 645 F. App’x 120, 124 (3d Cir.
2016).

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2. Plaintiffs’ Retaliation Claims
DHouser identifies the following circumstances that he alleges constitute engagement in
protected activity (Doc. No. 54 at 24): (1) reporting and attempting to remedy racial tension
(Doc. No. 47-1 at 49-50, 53); (2) refusing to lie for Smihal when interviewed during an
investigation into her behavior (id. at 43, 51); (3) addressing staff members’ racially
inappropriate behavior (id. at 49-50, 53, 56); (4) seeking appropriate sanctions for staff who
engaged in racist behavior (id. at 50, 53, 56); (5) exposing Smihal’s inappropriate actions to
Defendant’s administrators (id. at 43); (6) opposing Smihal when she refused to sanction racist
behavior (id. at 50); and (7) attempting to integrate the staff at Breezewood (id. at 54-55).
WHouser claims that he engaged in the following protected activity (Doc. No. 55 at 22):
(1) reporting racist conduct by white staff members (Doc. No. 47-3 at 24-25, 28); (2) reporting
the fact that African-American and white staff members were divided by shift (id. at 22-23); and
(3) asking to be transferred from South Mountain to Breezewood to get away from racial issues
(id. at 34).
Finally, Braxton identifies the following instances of alleged protected activity (Doc. No.
53 at 24-25): while at South Mountain, (1) attempting to discipline a white employee for using
racist language but being thwarted by Smihal (Doc. No. 47-5 at 13-14); (2) complaining to
Smihal about the racist YouTube videos and advocating for the termination of the involved
employees (id. at 23-24, 26); and while at Breezewood, (3) working through racial issues with
Fox and DHouser (id. at 37-38); and (4) being subjected to schedule changes when her white coworkers were not (id. at 43-44).
Protected activity in the context of a § 1981 retaliation claim involves complaining to an
employer about racially discriminatory activities engaged in by that employer. See Crawford v.

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Metro Gov’t of Nashville & Davidson Cnty., 555 U.S. 271, 276 (2009) (“‘When an employee
communicates to her employer a belief that the employer has engaged in . . . a form of
employment discrimination, that communication’ virtually always ‘constitutes the employee’s
opposition to the activity.’”) (citation omitted).
Construing all facts in the light most favorable to Plaintiffs, this Court concludes that
Plaintiffs have sufficiently identified potentially protected activities in which they engaged for
purposes of establishing a prima facie case of retaliation. For example, both DHouser and
Braxton tried to address staff members’ racist behaviors through discipline, which included
opposing Smihal, their superior, when she refused to sanction racist behavior. (Doc. Nos. 47-1 at
49-50, 53, 56, 47-5 at 13-14, 23-24, 26.) In addition, WHouser reported the division of AfricanAmerican staff members and white staff members by shift. (Doc No. 47-3 at 22-23.)
Furthermore, although Plaintiffs have not provided much detail about the timing of these
potentially protected activities relative to their respective terminations, based on the Court’s
review of the record, all of the incidents appear to have occurred within a relatively short time
frame, after which Plaintiffs were terminated. Therefore, the Court finds that, construing all
facts in the light most favorable to Plaintiffs, a reasonable factfinder could find that Plaintiffs’
terminations were causally related to Plaintiffs’ engagement in these activities, and therefore,
Plaintiffs have state a prima facie case of retaliation. Further, in light of the Court’s conclusion
supra regarding the existence of disputed material facts, construed in the light most favorable to
Plaintiffs, from which a reasonable fact-finder could infer that Defendant’s stated
nondiscriminatory reasons for terminating Plaintiffs’ employment were pretextual, the Court will
deny Defendant’s motions for summary judgment with respect to Plaintiffs’ retaliation claims.

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IV.

CONCLUSION
For all of the reasons discussed above, the Court will deny Defendant’s motions for

summary judgment. An appropriate Order follows.

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