Kunle Ade v. Kidspeace Corp ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-1868
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KUNLE ADE,
Appellant,
v.
KIDSPEACE CORPORATION
______________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 09-cv-01071)
District Court Judge: Honorable Jan E. Dubois
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 15, 2010
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Before: AMBRO, FISHER, GARTH, Circuit Judges.
(Opinion Filed: November 15, 2010)
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OPINION
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GARTH, Circuit Judge:
1
Appellant Kunle Ade (“Ade”) appeals from the District Court’s grant of summary
judgment in favor of appellee KidsPeace Corporation (“KidsPeace”). Ade alleged claims
of racial and national origin discrimination in violation of Title VII of the Civil Rights
Act, 42 U.S.C. § 2000e et seq. (“Title VII”), the Pennsylvania Human Relations Act, 43
P.S. § 951 et seq. (“PHRA”), and 42 U.S.C. § 1981. He also alleged retaliatory
termination under 42 U.S.C. § 1981, and common law wrongful termination and breach
of implied contract.
The District Court granted appellee’s motion for summary judgment as to all
claims. In his brief to this Court, Ade does not appeal his common law claims, but
appeals the grant of summary judgment as to all other claims. We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we set forth only those facts necessary to our
analysis.
Ade, an African-American male of Liberian descent, was hired on January 15,
2006 by KidsPeace, a private charity that serves the behavioral and mental health needs
of children and teens. Ade began as a late-night child care counselor, a position which
provides security and support for residential clients. He worked at the Patriot Center,
which is a collection of homes located in Orefield, Lehigh County, Pennsylvania. In
April 2006, Ade also began working as a part-time member of the therapeutic support
staff at the Patriot Center. In December 2007, KidsPeace terminated Ade.
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At the time Ade was hired, he was provided with a KidsPeace employee
handbook. The handbook includes a Harassment Policy, which prohibits employees from
engaging in acts of harassment and/or discrimination based on sex and provides that
violations may result in disciplinary action, up to and including termination of
employment.
KidsPeace avers that Ade was involved in several inappropriate incidents
involving female co-workers, and this was the main reason for his termination.1 In
response to Ade’s inappropriate conduct, KidsPeace verbally disciplined Ade and
provided him with written discipline prior to termination. After investigating the third
and fourth incidents and determining that Ade violated the KidsPeace Harassment Policy,
KidsPeace ultimately terminated Ade.
There were four main incidents of inappropriate conduct. First, on January 3,
2007, Kara Williams complained that Ade made sexually inappropriate comments to her
about her breasts. According to Williams, Ade pointed to her breasts and stated, “What
would you do if I touched those?” KidsPeace maintains that Ade was verbally counseled
regarding this incident with Ms. Williams. No formal disciplinary action was taken, but
the cases that Ade and Williams shared were reassigned, and Ade and Williams no longer
worked together after January 2007.
Second, on March 1, 2007, Pam Peters complained that Ade behaved
inappropriately towards her by purposely opening a desk drawer into her stomach. Ms.
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In addition, Ade was given verbal warnings for violating KidsPeace attendance policies.
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Peters’ complaint was investigated by KidsPeace, but ultimately, Ade was not disciplined
for the incident because Peters’ allegations could not be corroborated.
The third incident occurred the night of March 22, 2007. Ade and Jeanine
Martincavage were working together as late night counselors at Revere house. The
incident began when Ade became angry that Martincavage was feeding stray cats. The
versions of the story vary slightly—Ade avers that Martincavage pushed him before he
pushed her—but it is clear that during the exchange Ade pushed Martincavage. Ms.
Martincavage also alleged that Ade repeatedly cursed at her and threatened to hurt the
cats. In response to the incident with Martincavage, KidsPeace employees conducted an
investigation, during which they obtained statements from both Ade and Martincavage.
KidsPeace ultimately concluded that Ade’s actions violated the KidsPeace Employee
Conduct and Harassment Policies. Ade’s actions were deemed to be discourteous and
abusive and were thus grounds for immediate termination. Nevertheless, Ade was not
terminated and was provided with a final written warning. On April 4, 2007, three days
after receiving the warning, Ade provided Doran with a letter stating he felt that
KidsPeace’s decision was unfair and biased.
Finally, on November 25, 2007, Ade worked a night shift with Amanda Warner.
Three days later, Ms. Warner reported a complaint to Donna Doran, a Supervisor at the
time. Warner complained that Ade sexually harassed her both verbally and physically.
She told Doran that Ade forced himself on top of her, touched her breasts and tried to kiss
her. She also stated that when she told him to stop and raised her voice, he covered her
mouth with his hand. Warner prepared a handwritten complaint for Doran. Upon
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complaint by Warner, KidsPeace began an investigation. As part of this investigation,
Ade was questioned and given an opportunity to provide his side of the story, though he
was not shown a copy of Ms. Warner’s written complaint. Based upon the results of this
investigation and Ade’s history of inappropriate conduct, he was placed on immediate
administrative leave with the recommendation that he be terminated.
On or about December 2, 2007, Ade met with Amy Remmel in Human Resources.
Ms. Remmel testified that during this meeting Ade stated that he did not trust the women
at KidsPeace. Finally, on December 4, 2007, KidsPeace terminated Ade.
Ade makes several allegations of conduct that are pertinent to his claims of
discrimination and retaliation. Ade’s allegations can be summarized as follows: (1) that
certain employees at KidsPeace made discriminatory comments toward him; (2) that
KidsPeace treated Ade unfairly in regard to complaints of sexual harassment made
against him; and (3) that KidsPeace generally treated white employees more favorably
than black employees.
When Ade was hired, he was initially assigned to work under Jane Marino, a
Supervisor, and Donna Doran, an Assistant Supervisor at the time. On or about his third
day of work, Ade met Pam Peters, a colleague who never exercised supervisory authority
over him. Ms. Peters was a fellow late night child care counselor. When Marino
introduced Ade to Peters, Peters asked Ade if it were true that he was from Africa and
commented that Ade did not have the “typical African accent.” She then asked Ade: “Is
it really true you people from Africa wear leaves?” Ade complained about the comment
to Ms. Marino once that day and once a few months later as part of a more general
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conversation. About a year after being hired, Ade complained about the comment to
Scott Pompa, a late night manager for KidsPeace.
In approximately May or June of 2007, Ade was eating lunch with a Syrian co-
worker, who offered him some Syrian food. Ms. Doran, who at this point had been
promoted from Assistant Supervisor to Supervisor, pointed to the food and said “That
looks like a turd. Will you eat that?” She then asked, “you guys eat stuff like that in
Africa?” Ade reported this comment to Ms. Remmel. Ms. Remmel told Ade he should
discuss the comment with her boss Scott Pompa if he wanted to pursue the complaint.
After this discussion, Ade never discussed the comment with Pompa or made a formal
complaint about it.
In addition to complaints about discriminatory comments, Ade alleges that he was
treated unfairly in regard to allegations of inappropriate conduct and sexual harassment
against him. Ade alleges that, after the incident with co-worker Jeanine Martincavage, he
was treated less favorably than her. Ade alleges that Martincavage pushed him to prevent
him from scaring the stray cats, and he then pushed her back. Ade argues that he was
written up for this incident but Ms. Martincavage was not because of their different racial
backgrounds.
Ade also alleges that he was treated unfairly regarding Amanda Warner’s
accusations of sexual harassment against him. After Warner made an accusation of
sexual harassment against Ade, Ade denied the accusations, and complained verbally to
Doran and Lea Nissley on November 28, 2007 that he was being treated differently
because of his race and gender. Ade asked to see the written complaint by Ms. Warner,
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but Remmel would not show it to him. Ade wrote a letter to Doran requesting that
KidsPeace investigate Ms. Warner’s accusations, and gave this letter to Remmel on
December 3, 2007.
Finally, Ade alleges that black employees were generally treated less favorably
than white employees. He points to the fact that certain white employees were not
punished for feeding stray cats. However, KidsPeace maintained no official policy
against feeding stray cats. Ade further points to the fact that KidsPeace terminated a
black employee, Sherwood Dejoie, for sleeping on the job, but did not discipline white
employees who allegedly slept on the job. Ms. Doran personally observed Dejoie
sleeping on the job three or four times. The evidence of white employees sleeping on the
job consisted of pictures that Ade took of these employees.
Ade alleges that Jeff Onuschco, a white employee, sexually harassed co-workers,
but was not disciplined for it, while Ade was terminated for alleged sexual harassment.
Ade has provided the following evidence that Onuschco sexually harassed co-workers.
First, Jacqueline Burns, a former employee of KidsPeace, testified in her deposition that
Jeff made inappropriate comments to her between May 2006 and October 2006. She
further testified that she told Ms. Marino about these comments. She also testified that
she wrote something down regarding the issue and gave it to Ms. Marino.
Additionally, Kimberly Fleming-Arnold testified that Mr. Onuschco sent her a
naked picture of himself. She testified that she told him to stop, and he did thereafter;
thus she took it no further. Ms. Fleming-Arnold’s husband testified that, in the summer
of 2006, he reported to Mr. Pompa that Mr. Onuschco had sent sexual emails to his wife.
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He testified that Mr. Pompa dismissed the complaints. Mr. Arnold then spoke with Bob
in Human Resources, and handed him certain emails from Mr. Onuschco to Ms. Arnold.
Finally, Ade argues that employees were not disciplined for stealing money from
the children’s fund box. Kathleen Somers, an employee at KidsPeace, testified that she
was aware that money from the children’s funds was being taken. She reported this to
the man who had control of the money box, Sean McPeek, a Caucasian. McPeek gave
her the “runaround.” Somers never reported the issue to anyone else.
Pertinent to his retaliation claim, Ade alleges the following adverse employment
actions. First, Ade was assigned to work at Paul Revere House, a co-ed house, after he
requested not to be assigned to this house. Second, Ade was terminated.
II.
The District Court had subject matter jurisdiction over Ade’s federal claims
pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the state law claims
pursuant to 28 U.S.C. § 1367. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
This Court’s scope of review over the District Court’s grant of summary judgment
is plenary. Lauren W. v. Deflaminis, 480 F.3d 259, 265 (3d Cir. 2007). We affirm those
orders if our review reveals that “there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.” Id. We review the facts “in the
light most favorable to the non-moving part[y], and draw all reasonable factual inferences
in” his favor. Id. A genuine issue of material fact exists “if the evidence is such that a
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reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
III.
A. Race and National Origin Discrimination claims
The framework for evaluating summary judgment motions under Title VII was
established by the Supreme Court in McDonnell Douglas Corp v. Green, 411 U.S. 792,
802 (1973). As explained in Texas Dept. of Cmty. Affairs v. Burdine:
First, the plaintiff has the burden of proving by the preponderance of
the evidence a prima facie case of discrimination. Second, if the
plaintiff succeeds in proving the prima facie case, the burden shifts
to the defendant to articulate some legitimate, nondiscriminatory
reason for the employee's rejection. Third, should the defendant
carry this burden, the plaintiff must then have an opportunity to
prove by a preponderance of the evidence that the legitimate reasons
offered by the defendant were not its true reasons, but were a pretext
for discrimination.
450 U.S. 248, 252-53 (1981) (internal citations and quotation marks omitted). “The
ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.” Id. at 253.
Section 1981 and PHRA claims alleging race and national origin discrimination are
analyzed under the same burden-shifting framework as Title VII claims. Jones v. School
Dist. of Phila, 198 F.3d 403, 410 (3d Cir. 1999).
Even if we assume that Ade has established a prima facie case of discrimination,
KidsPeace has satisfied its burden of articulating a legitimate reason for Ade’s
termination: Ade’s violation of the KidsPeace Harassment Policy. Ade fails to satisfy
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the third step of the McDonnell Douglas framework because he has provided insufficient
evidence to establish that KidsPeace’s proffered legitimate reason was a pretext for
discrimination.
Ade’s evidence fails to cast sufficient doubt upon KidsPeace’s reason for
terminating him. The ultimate question is not whether KidsPeace was absolutely right to
determine that Ade had violated the Harassment Policy, but whether it was so clearly
wrong as to imply a discriminatory animus.
To counter KidsPeace’s assertions that he violated the Harassment Policy and
engaged in inappropriate conduct, Ade simply offers denials of his own inappropriate
conduct, and his opinion that the real reason was a racial animus. A denial that he
engaged in the conduct for which he was purportedly terminated is insufficient to create a
genuine issue of material fact. See Waggoner v. Garland, 987 F.2d 1160, 1166 (5th Cir.
1993) (veracity of underlying charge “largely irrelevant” where employer had “good faith
belief” that employee committed offensive behavior). His own personal belief that the
true reason for the discharge was racial discrimination is similarly insufficient to create a
genuine issue of material fact. See id. at 1164 (subjective belief that discharge was based
on a discriminatory animus insufficient to establish claim for purposes of summary
judgment).
Ade disputes the substance of the harassment claims, but cannot dispute that
complaints were made to KidsPeace management and that KidsPeace investigated those
complaints. The record reflects that KidsPeace was made aware of four separate
incidents involving Ade and different female employees. KidsPeace investigated the
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misconduct regarding three of these complaints, verbally counseled Ade for the first, and
determined that disciplinary action was required in response to the third and fourth. In
response to the Martincavage incident, KidsPeace found Ade had violated its policies and
issued Ade a written warning, stating that any further incident could lead to termination.
Finally, after an investigation into the Warner complaint, KidsPeace again determined
that Ade had violated the organization’s harassment policy, and ultimately terminated his
employment. The record does not display sufficient, if any, facts to demonstrate that
KidsPeace’s proffered reason is plainly wrong.
Ade can also survive summary judgment by pointing to evidence in the record
“from which a factfinder could reasonably . . . believe that an invidious discriminatory
reason was more likely than not a motivating or determinative cause.” Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir. 1994). For example, a “plaintiff may show that the
employer has previously discriminated against [him], that the employer has discriminated
against other persons within the plaintiff's protected class or within another protected
class, or that the employer has treated more favorably similarly situated persons not
within the protected class.” Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d
639, 645 (3d Cir. 1998).
Ade points to two discriminatory comments allegedly made to him by Pam Peters
and Donna Doran. These two comments were temporally remote and do not tend to show
a discriminatory reason was more likely than not a motivating cause of his discharge.
Peters’ comment was made nearly two years prior to Ade’s termination, and further,
Peters never maintained any supervisory authority over Ade and was not responsible for
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the decision to terminate him. See Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 359
(3d Cir. 1999) (“Stray remarks by non-decisionmakers or by decisionmakers unrelated to
the decision process are rarely given great weight, particularly if they were made
temporally remote from the date of decision.”).
Doran was Ade’s supervisor and involved in the decision-making process to
terminate Ade, but her comment and question relating to a piece of food, made
approximately six months before Ade’s termination, are insufficient to show that a
discriminatory animus was the likely cause of the adverse action. See Keller v. Orix
Credit Alliance, Inc., 130 F.3d 1101, 1112 (3d Cir. 1997) (comment made by decision
maker approximately four to five months prior to termination insufficient to prove by a
preponderance of the evidence that discrimination was a determinative cause of
employee’s termination). Finally, the notion that Ade was discriminated against because
KidsPeace did not accommodate his requests to change facilities is unsubstantiated; there
is no evidence that this was motivated by any discriminatory animus.
Ade’s argument that KidsPeace generally treated employees differently based on
their racial background is not supported by the record. Ade contends that white
employees who were caught sleeping on the job were not fired, while a black employee
was fired for the same behavior. It is true that a black employee was fired for sleeping on
the job several times. However, a supervisor personally observed this employee sleeping
on the job. The evidence that Ade presents of white employees sleeping on the job
consists of photographs that Ade himself provided to KidsPeace. These photos, in
addition to not being personal observations by KidsPeace management, are extremely
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blurry and not conclusive as to whether any of the individuals pictured were asleep. Thus
this evidence is not probative of differential treatment.
Ade’s attempts to show that similarly situated individuals not in the protected class
were treated more favorably than him is similarly unavailing. Ade’s comparators
engaged in very different conduct than that which led to Ade’s termination.
Feeding stray cats is entirely different conduct from sexual harassment and verbal
and physical abuse; it was not the same level of seriousness, nor was it even a clear
violation of KidsPeace policy.
Ade asserts that he was denied a request for personal leave of absence, yet
KidsPeace allowed Scott Pompa, a Caucasian employee, to take six months of personal
leave. Pompa, however, was a Manager of Residential Programs and held an entirely
different position to Ade. The two were therefore not similarly situated.
With respect to the alleged theft of the children’s funds, there is no evidence that
any complaint was ever made to any manager or human resources employee. Without
knowledge of wrongdoing, management could not take any action. Thus this situation is
inapposite.
Finally, Ade argues that he was treated differently from a similarly situated
employee because he was terminated for violating the sexual harassment policy, whereas
KidsPeace did not discipline Jeff Onuschco, a Caucasian employee, for allegedly
subjecting female co-workers to sexual harassment. However, the District Court was
correct to point out that there was a key difference between Ade and Onuschco. All of
the allegations regarding Onuschco related to sexually explicit comments made to female
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employees; there are no allegations that Onuschco ever inappropriately touched a female
employee. Ade, on the other hand, allegedly pushed Jeanine Martincavage and forced
himself on top of Amanda Warner. Additionally, the record discloses four instances of
complaints to superiors of inappropriate conduct by Ade, while only one female
employee (and one male non-employee) complained to KidsPeace supervisors about
Onuschco’s conduct.
In summary, Ade’s evidence is insufficient as a matter of law to show that
KidsPeace’s proffered legitimate reason for terminating him was pretextual. The District
Court properly granted summary judgment on Ade’s claims of race and national origin
discrimination.
B. Retaliation claim
Ade claims that KidsPeace terminated him in retaliation for engaging in protected
activity—namely, his various complaints to KidsPeace that he was being discriminated
against based on his race. The District Court applied the McDonnell Douglas burden-
shifting framework to the retaliation claim and concluded that Ade could not meet his
burden of establishing that KidsPeace’s proffered legitimate reason was a pretext for
retaliatory termination. On appeal, Ade argues that the McDonnell Douglas framework is
not the correct framework for analyzing retaliation claims and that a plaintiff is not
required to show pretext on a retaliation claim. However, Ade’s claim fails both under
the McDonnell Douglas framework and under Hill v. Borough of Kutztown, 455 F.3d
225, 241 (3d Cir. 2006), and Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005).
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The evidence indicates that KidsPeace terminated Ade for legitimate reasons relating to
his conduct as an employee.
The District Court was correct to grant KidsPeace’s motion for summary judgment
as to Ade’s retaliation claim.
IV.
The District Court did not err in granting summary judgment to KidsPeace. For
the foregoing reasons, we affirm the judgment of the District Court.
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