Schwartzberg v. Mellon Bank, N.A. , 307 F. App'x 676 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-26-2009
Schwartzberg v. Mellon Bank NA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1110
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1110
ALBERT AVRAHAM SCHWARTZBERG,
Appellant
v.
MELLON BANK, N.A.
On Appeal from the United States District Court
for the Western District of Pennsylvania
(Case No. 06-cv-01006)
District Judge: The Honorable Terrence F. McVerry
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 6, 2009
Before: FUENTES and FISHER, Circuit Judges, and PADOVA,
Senior District Judge *
(Filed: January 26, 2009)
___________
*
Hon. John R. Padova, Senior District Judge for the Eastern District of Pennsylvania,
sitting by designation.
OPINION OF THE COURT
___________
PADOVA, Senior District Judge
Appellant Avraham Schwartzberg sued his former employer, Mellon Bank, N.A.
(“Mellon”), asserting claims of religious discrimination and retaliation under Title VII
and the Pennsylvania Human Relations Act. He now appeals a District Court order
granting summary judgment in Mellon Bank’s favor on these claims. Inasmuch as we
write this memorandum opinion only for the convenience of the parties, who are familiar
with the facts, we need not reiterate those facts, which are set forth at great length in the
District Court’s memorandum opinion.
Schwartzberg is an Orthodox Jew, who holds a religious belief that homosexuality
is immoral. On two occasions, Schwartzberg sent correspondence to employees at
Mellon, expressing his beliefs about homosexuality in strident terms. After the first such
correspondence, Mellon issued a warning to Schwartzberg that such conduct violated
Mellon’s harassment policy and would not be tolerated. After the second such
correspondence, he was given a “Final Written Warning,” which notified him that any
other violations of Mellon’s policies or procedures could result in further corrective
action, including termination of his employment. Thereafter, Schwartzberg, who worked
in Mellon’s call center, was found sleeping on the job on three separate occasions. He
was advised that this conduct was serious and that, given his Final Warning status, any
subsequent violations of Mellon's policies could lead to termination. The very next day,
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however, Schwartzberg was again found sleeping on the job and his employment was
terminated.
Schwartzberg takes the position in his suit against Mellon that the issuance of the
Final Written Warning constituted discrimination against him on account of his religious
beliefs, and that it was the existence of this Final Written Warning that led to his
termination, such that his termination was also discriminatory. On summary judgment,
the District Court analyzed Schwartzberg’s religious discrimination claim as a “failure to
accommodate” claim, which requires proof that the plaintiff holds a religious belief that
conflicts with an employer requirement. Finding that there was no evidence of any
conflict between Schwartzberg’s religious beliefs, i.e., his belief that homosexuality is
immoral, and any employer requirement, including Mellon’s policy against conduct that
constitutes harassment, the District Court concluded that Schwartzberg had failed to make
out a prima facie case of religious discrimination. With respect to Schwartzberg’s
retaliation claim, the District Court also concluded that the record did not contain
evidence to support a prima facie case. As it explained, one element of the prima facie
case for retaliation is proof of a causal link between protected activity and adverse
employment action and, in this case, there was no evidence that Mellon was even aware
that Schwartzberg had complained about religious discrimination until after it had
discovered him sleeping on the job the first time and had warned him (a second time) that
he could be terminated for any further violations. The District Court further noted that,
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even if a prima facie case of retaliation had been developed, Schwartzberg failed to rebut
the undisputed record evidence that the adverse action taken against him was based on
non-discriminatory and non-retaliatory reasons.
We review orders granting summary judgment de novo, applying the same
standard that is applied by the District Court. Int’l Assoc. Local 19 v. Herre Bros., Inc.,
201 F.3d 231, 239 (3d Cir. 1999). Pursuant to Federal Rule of Civil Procedure 56, it is
appropriate to grant summary judgment when the pleadings, depositions, answers to
interrogatories, admissions, and affidavits show that there is no genuine issue of material
fact and that the moving party is entitled to judgment as a matter of law.
On appeal, Schwartzberg argues, among other things, that the District Court erred
in granting judgment in Mellon’s favor on his religious discrimination claim based on his
alleged failure to establish the elements of a prima facie case, when he had direct
evidence of discrimination. He has, however, identified no direct evidence of
discrimination in the summary judgment record, and we can discern none. Schwartzberg
also appears to argue that the District Court should not have analyzed his claim using only
the “classic legal framework of religious discrimination based on lack of
accommodation.” Br. of Appellant at 32. However, Schwartzberg himself largely
characterized his claim as a lack of accommodation claim in his summary judgment
papers and he has not presented evidence that would permit him to survive summary
judgment on a disparate treatment theory.
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We have considered all other arguments made by Schwartzberg on appeal and
conclude that no further discussion is necessary. Indeed, after careful review of the
appellate briefs and appendices submitted by the parties, we find no basis for disturbing
the District Court’s rulings. We will therefore affirm the judgment for substantially the
same reasons as those set forth in District Judge McVerry’s memorandum opinion dated
January 8, 2008.
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