NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-3064
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DARNELL TURNER,
Appellant
v.
PRO-SOLUTIONS FOR CHIROPRACTIC, INC.
_____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-07-cv-01269)
District Judge: Honorable Donetta W. Ambrose
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Submitted Under Third Circuit L.A.R. 34.1(a),
July 15, 2010
Before: FUENTES, VANASKIE, and WEIS, Circuit Judges.
(Opinion Filed: August 5, 2010)
OPINION OF THE COURT
FUENTES, Circuit Judge:
Darnell Turner, an African-American, brought this Title VII action against his
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former employer, Pro-Solutions For Chiropractic, Inc. (“Pro-Solutions”), alleging that his
firing was the result of racial discrimination. The District Court granted defendant Pro-
Solutions’ motion for summary judgment. The Court concluded that Turner had satisfied
the first stage of the familiar McDonnell-Douglas inquiry, making out a prima facie case
for race employment discrimination, and that Pro-Solutions had met its burden at the
second stage by explaining that it terminated Turner because it suspected he had
unlawfully attempted to sell its equipment. However, the court found that at the third
stage of the inquiry, Turner failed to show that Pro-Solutions’ explanation for its
employment decision was a pretext for discrimination.
Turner appeals, arguing that a jury could disbelieve Pro-Solutions’ stated reason
for firing him because he was not confronted about the attempted theft while he worked at
the company, and since his employer could not articulate a specific basis for fearing
retaliation from him. We disagree and will affirm.1
I.
Because we write primarily for the parties, we set forth only the facts and history
that are relevant to our conclusion. Defendant Pro-Solutions sells therapeutic and
diagnostic equipment, including television monitors, for use by chiropractors. Plaintiff
Turner, an African-American, began working for the company in February 2006, shipping
1
The District Court had federal question jurisdiction pursuant to 28 U.S.C. § 1331.
We have jurisdiction pursuant to 28 U.S.C. § 1291.
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and tracking products sent from a warehouse in Cecil, Pennsylvania to Pro-Solutions’
customers. Prior to Turner’s hiring, Pro-Solutions outsourced the warehousing and
shipping for which Turner became responsible.
Nicholas Pisciottano, the brother of Pro-Solutions’ President and CEO, Dr.
Maurice Pisciottano, also worked in the warehouse, though he was not involved in
packaging and shipping. Pisciottano is Caucasian. In May 2006, upon Turner’s
recommendation, Pro-Solutions hired Bryan Cherry, who is African-American, to assist
Turner in the warehouse.
In September 2006, the warehouse owner, Richard Erenberg, told Dr. Pisciottano
that Turner had asked one of Erenberg’s employees if he wanted to buy a television out of
the warehouse. Dr. Pisciottano asked Harry Freucht, the Chief of Police for nearby Peters
Township, for advice. Freucht explained that the warehouse was outside his jurisdiction,
but suggested Pisciottano set up a “sting” operation and contact the Cecil police.
Dr. Pisciottano instead told Pro-Solutions’ Director of Operations Edward Bishop
to fire Turner, Cherry, and Nicholas Pisciottano, and tell them the company intended to
look into outsourcing the warehouse functions. According to Dr. Pisciottano, he was
concerned about retaliation should he accuse Turner of stealing. “[H]e could beat me up,
he could pull a gun on me,” Dr. Pisciottano explained in his deposition testimony. (Supp.
App. at 39a.) “People who sell [stolen] TVs, I think they’re probably a little crazy. I
don’t know what else they might do.” (Id. at 39a.)
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Pro-Solutions did not outsource its warehouse operation. Approximately one week
after the three firings, the company hired Timothy Linden, who is Caucasian, to work in
the warehouse. He quit about one month later. Employees already working for Pro-
Solutions assumed warehouse duties thereafter.
According to the affidavit of Raymond Hunter, an employee of another warehouse
tenant, Nicholas Pisciottano told him that what the company had done to Turner was
“messed up,” that his brother Dr. Pisciottano “did not ‘do well’ around black people,” and
that the explanation for the firings “was false.” (Rep. & Recc. at 4.) Hunter relayed this
to Cherry, who told Turner. However, apart from the alleged employment discrimination
complained of by Turner in this case, neither Turner nor Cherry ever experienced any
form of discrimination, nor heard any derogatory comments concerning their race, while
they were employed at Pro-Solutions.
On September 9, 2007, Turner filed a complaint against Pro-Solutions, alleging
that his firing was based on illegal race discrimination in violation of Title VII of the
Civil Rights Act, 42 U.S.C. § 2000e et seq, 42 U.S.C. § 1981 and the Pennsylvania
Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. § 955(a).2 At the close of discovery,
Pro-Solutions filed a motion for summary judgment. Following discovery, the District
2
Cherry filed a substantially similar complaint in December 2007. The District
Court granted defendant Pro-Solutions’ motion for summary judgment. Cherry did not
appeal. Cherry v. Pro-Solutions for Chiropractic, Inc., No. 07-1692, 2009 U.S. Dist. LEXIS
86594 (W. D. Pa. Sept. 22, 2009).
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Court accepted the magistrate judge’s Report and Recommendation and granted
defendant’s motion for summary judgment. Turner filed a timely notice of appeal.
II.
This Court reviews de novo the District Court’s decision granting summary
judgment, applying the same standard of review as that used by the District Court. Curley
v. Klem, 298 F.3d 271, 276 (3d Cir. 2002). Summary judgment is appropriate if “there is
no genuine issue as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c). The evidence must be viewed in the light most favorable
to Turner, the non-moving party. Bartnicki v. Vopper, 200 F.3d 109, 114 (3d Cir. 1999).
Turner’s Title VII race discrimination claims must be scrutinized under the three-
stage inquiry of McDonnell Douglas Corp. v. Green, and its progeny. The analysis
required for adjudicating Turner’s claim under the PHRA is identical, and we therefore
address the claims together. Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313,
317 n.3 (3d Cir. 2000).
Turner met his initial burden to present a prima facie case of race employment
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Makky v.
Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). The burden of production shifted to Pro-
Solutions to articulate a legitimate, non-discriminatory reason for Turner’s termination –
a “relatively light burden.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). After
Pro-Solutions explained that it suspected Turner had attempted to steal company property,
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the burden shifted back to Turner to show by a preponderance of the evidence that the
employer’s proffered reason was pretextual. Id. at 763.
The sole issue is whether the District Court correctly concluded, at the third stage
of the inquiry, that Turner failed to show that Pro-Solutions’ explanation for its
employment decision was a pretext for discrimination. To avoid summary judgment
when Pro-Solutions provided legitimate, non-discriminatory reasons for firing him,
Turner 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.
Id. at 764.
We agree with the District Court that Turner has not demonstrated that Pro-
Solutions’ explanation for firing him is a pretext for unlawful discrimination. The
evidence presented by Turner must “allow a fact finder 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).” Id. Turner’s burden of production accords with the burden of persuasion
resting, at all times, with the plaintiff. See Texas Dept. of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981). The resulting “difficult burden” on the plaintiff is “inherent” to
adjudication of employment discrimination disputes. Ezold v. Wolf, Block, Schorr and
Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992).
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Turner has offered no evidence to dispute Dr. Pisciottano’s and Erenberg’s
testimony concerning Turner’s offer to Erenberg’s employee to buy a television out of the
warehouse, or Chief Freucht’s testimony that Dr. Pisciottano spoke with him about the
attempted theft. Rather, Turner argues that a jury could disbelieve Pro-Solutions’
explanation because he was not confronted about the theft while employed at Pro-
Solutions. However, an employer is not required to discuss accusations of theft with an
at-will employee before firing him. See Weaver v. Harpster, 601 Pa. 488, 500 (2009).
Whether doing so is a better business practice is irrelevant to the question of pretext.
Fuentes, 32 F.3d at 765.
Turner also argues that a jury could disbelieve Pro-Solutions’ explanation because
Dr. Pisciottano failed to articulate a specific reason for fearing retaliation from Turner.
However, he did say: “People who sell [stolen] TVs, I think they’re probably a little
crazy. I don’t know what else they might do.” (Supp. App. at 39a.) Moreover, while
plaintiff’s evidence need not directly contradict defendant’s explanation, Turner may not
simply argue that the fact finder should disbelieve his former employer’s explanation.
Fuentes, 32 F.3d at 764. That Dr. Pisciottano could not specifically identify the basis for
his fear of retaliation does not undermine the evidence supporting his suspicions of
Turner’s illegal activities.
III.
For the foregoing reasons, we affirm the judgment of the District Court.
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