Dunsmuir v. May Dept Stores Co

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
2-1-2005
Dunsmuir v. May Dept Stores Co
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1413
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 04-1413
WILLIAM DUNSMUIR,
Appellant
v.
MAY DEPARTMENT STORES COMPANY
On appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No. 3:CV-01-1891
District Judge: The Honorable Thomas I. Vanaskie, C.J.
Submitted Pursuant to LAR 34.1(a)
January 21, 2005
Before: ALITO, M cKEE, and SMITH, Circuit Judges
(Filed: February 1, 2005)
OPINION OF THE COURT
SMITH, Circuit Judge.
In a one count complaint, William Dunsmuir alleged that his former employer, the
May Department Stores Company, wrongfully discharged him in retaliation for pursuing
a claim for workers’ compensation benefits after sustaining an injury at the distribution
facility where he worked. The District Court granted the May Department Stores’
summary judgment motion.1 We will affirm.
Our review of the denial of a motion for summary judgment is plenary. Rivas v.
City of Passaic, 365 F.3d 181, 193 (3d Cir. 2004). We “apply the same standard that the
District Court should have applied.” Abramson v. William Paterson College of New
Jersey, 260 F.3d 265, 276 (3d Cir. 2001).
Dunsmuir, a maintenance engineer at a May Department Stores distribution
facility, fractured his right arm on May 23, 2000 when the top step of a stepladder broke
while he was on it. He was treated that day at a local hospital and visited the following
morning by two of his superiors, Eric Fritz and Rick Cheevers. Cheevers allegedly told
Dunsmuir that he did not want Dunsmuir to pursue workers’ compensation benefits.
Instead, Cheevers encouraged Dunsmuir to use his sick and personal time. Dunsmuir was
not receptive to this suggestion.
Notice of the fact that Dunsmuir had been injured, however, had been provided to
the Eastern Regional Claims Office for May Department Stores on the very day he was
injured. As a result, Dunsmuir received workers’ compensation benefits effective the
following day, May 24, 2000. Those benefits were terminated upon Dunsmuir’s return to
work on June 26, 2000.
Thereafter, Dunsmuir committed several safety violations: repeatedly crossing a
moving conveyor system; stepping momentarily upon a wheeled cart to elevate himself to
1
The District Court had diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). We
exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291.
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a motor on which he was working; and stepping down onto the top step of a tall ladder.
He was disciplined for the first two violations and was discharged on February 20, 2001,
after the third violation.
Dunsmuir contends that he was wrongfully discharged in February 2001 because
he pursued and collected workers’ compensation benefits for the injury he sustained in
May 2000. In Shick v. Shirey, 716 A.2d 1231, 1238 (Pa. 1998), the Pennsylvania
Supreme Court held that a “cause of action exists under Pennsylvania law for wrongful
discharge of an employee who files a claim for workers’ compensation benefits.”
Although the Pennsylvania courts have yet to enumerate the elements of this cause of
action, several federal district courts in Pennsylvania have analogized this cause of action
to a retaliatory discharge claim under Title VII. See Landmesser v. United Air Lines, Inc.,
102 F. Supp. 2d 273, 277-78 (E.D. Pa. 2000); see also Christman v. Cigas Machine Shop,
Inc., 293 F. Supp. 2d 538, 543 (E.D. Pa. 2003); Kennelly v. Pennsylvania Turnpike
Comm’n, 208 F. Supp. 2d 504, 517 (E.D. Pa. 2002). This approach is sound in our view.
Thus, an employee must establish: (1) that he engaged in protected activity; (2) that he
suffered an adverse employment action either after or contemporaneous with the
protected activity; and (3) that there is a causal connection between his protected activity
and the employer’s adverse action. See Shellenberger v. Summit Bancorp, Inc., 318 F.3d
183, 187 (3d Cir. 2003). If the employee is able to show these elements, the burden shifts
to the employer to articulate a legitimate, non-discriminatory reason for its action. Id. If
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the employer satisfies this burden, the employee may defeat summary judgment by
discrediting the proffered reason or adducing evidence to demonstrate that retaliatory
animus was a motivating factor in the employer’s decision. Fuentes v. Perskie, 32 F.3d
759, 765 (3d Cir. 1994).
Here, the District Court concluded: (1) that Dunsmuir had failed to establish the
prima facie element of causation; and (2) that, even if a prima facie case had been
demonstrated, Dunsmuir had not demonstrated that May Department Stores’ legitimate
nondiscriminatory reason for discharging him was pretextual. We agree. With respect to
the element of causation, we find it significant, as the District Court pointed out, that the
decision to terminate Dunsmuir was made by Stephen Zirnheld, the Vice President of
Distribution and manager of the distribution facility, who had no knowledge of
Dunsmuir’s previous receipt of workers’ compensation benefits. The notice to the claims
department of Dunsmuir’s injury on the very day of his accident further attenuates any
inference of causation between Dunsmuir’s collection of benefits and his subsequent
termination. In light of these circumstances, Cheevers’s statement nine months earlier
that Dunsmuir should refrain from pursuing a workers’ compensation claim was nothing
more than a stray remark that is insufficient to support a claim of retaliatory discharge.
See Walden v. Georgia-Pacific Corp., 126 F.3d 506, 521 (3d Cir. 1997) (finding stray
remarks by non-decisionmaker insufficient to support an inference of discrimination).
We also agree with the District Court that Dunsmuir failed to establish that the
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reason for discharging him was pretextual. We recognize that Dunsmuir’s expert opined
that M ay Department Stores’ safety program was inadequate because it failed to identify,
evaluate and control safety hazards and to communicate this information to its employees.
In light of these inadequacies, the expert concluded that Dunsmuir did not violate any
specific safety rule and that M ay Department Stores was to blame for Dunsmuir’s actions.
This conclusion, however, ignores that the evidence established that May Department
Stores was concerned with safety at its distribution center and regularly discussed safety
concerns with its staff. It is also undisputed that Dunsmuir committed the safety
violations for which he was disciplined and that his actions were a genuine risk to his
well-being. Thus, the expert’s report merely challenges the wisdom of discharging
Dunsmuir under the circumstances. It does not cast doubt on the employer’s articulated
reason for discharging Dunsmuir. As Fuentes instructs, an employee does not discredit
his employer’s proffered reason by showing that it was wrong or mistaken. 32 F.3d at
765. That is because the dispositive issue is whether retaliatory animus motivated the
employer’s decision. Id.
For the foregoing reasons, we will affirm the judgment of the District Court.
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