NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4201
___________
TONY JACKSON,
Appellant
v.
PLANCO
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 08-cv-05144
(Honorable Stewart Dalzell)
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 10, 2011
Before: SCIRICA, BARRY and VANASKIE, Circuit Judges.
(Filed: June 14, 2011)
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
Tony Jackson appeals the grant of summary judgment in favor of his former
employer, PLANCO Financial Services, L.L.C. (PLANCO), in a discrimination and
retaliation suit brought under the Americans with Disabilities Act (ADA), 42 U.S.C. §
12101 et seq., the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.,
1
and the Pennsylvania Human Relations Act (PHRA), 43 Pa. Cons. Stat. § 951 et seq. We
will affirm.
I.1
PLANCO, a subsidiary of The Hartford, hired Tony Jackson on a temporary basis
in September, 2004. In December, 2004, PLANCO hired Jackson full-time to administer
Lotus Notes, an electronic mail system. Throughout Jackson‟s employment at PLANCO,
the company had an internet policy forbidding access to inappropriate internet websites.
The company also blocked employee access to certain sites using a filter.
In January, 2006, Jackson suffered a heart attack and two strokes. He took a
medical leave, began working from home, and eventually returned to work full-time.
Jackson took another short leave in September, 2006, while suffering from gout.
PLANCO began to question Jackson‟s work performance. On October 9, 2006,
Jackson‟s supervisor, Christie Vazquez, and the department head, Steven Olshevski, met
with Jackson to address his work performance, which they perceived as substandard.
Jackson received negative performance reviews in November, 2006, and January, 2007.
Throughout the performance evaluation process—referred to by the parties as
“performance management”—Jackson repeatedly contested his supervisors‟ evaluations
and contended he was doing adequate work.
1
Because we review a grant of summary judgment, we recite the facts most favorable to
the non-moving party, and draw all reasonable inferences from the evidence in favor of
the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
2
On March, 22, 2007, Jackson complained to human resources he felt he was being
singled out for review because of his disability. Specifically, he contended Olshevski
found fault with his work, and failed to provide guidance to help him improve. He also
contended Olshevski assigned him work on several occasions as he was departing the
office for medical appointments.
Through its human resources department, PLANCO investigated the allegations.
During the investigation process, Vazquez and Olshevski were instructed to cease
“performance managing” Jackson. The investigation found no basis for Jackson‟s
discrimination allegations, and also found adequate documentation that Jackson‟s
performance was substandard. Human resources reported the results of the investigation
to Jackson on April 30, 2007. At that time, Jackson was offered a lower paying position
with fewer responsibilities—a position PLANCO describes as a demotion. Jackson
declined the position in a manner that made the human resources representative believe
Jackson was angry and “disgusted.”
The next day, Jackson learned PLANCO‟s internet filter was broken and visited
several websites routinely blocked by the filter, among them the Playboy website and
several gun websites. Vazquez, who was aware Jackson owned guns and frequently
engaged in target shooting, and who, as Jackson‟s supervisor, knew he was upset and
angry, noticed Jackson viewing the gun websites. She testified she became afraid of
Jackson, and decided not to deliver several negative performance memoranda she had
prepared to give him.
3
On May 2, 2007, Vazquez informed human resources she was afraid for herself
and for Olshevski. Human resources requested an internet usage report, which confirmed
Jackson had accessed gun websites. Vazquez‟s complaint and the internet evidence was
presented to Kevin Connor, the Executive Vice President of PLANCO. Connor was
informed Jackson‟s performance was subpar, he was being unsuccessfully “performance
managed,” was upset about the process, had rejected an offer for a different position with
PLANCO, and in light of this, his visiting gun websites created fear on the part of other
employees for their safety.
Connor, on behalf of PLANCO, placed Jackson on leave, disabled his workplace
access, and arranged for police officers to be present at PLANCO the next day. Vazquez
and Olshevski were notified they were not required to come to work that day.
When Olshevski was informed, he too became concerned for his safety and
warned his children to stay away from Jackson. Vazquez and Olshevski expressed their
fear to human resources. Vazquez noted Jackson knew where she lived. In response,
human resources telephoned Jackson and inquired about the incident. Jackson admitted
he knew the filtering system was disabled and visited the gun websites. He also said he
owned guns.
Human resources, determining employees were afraid of Jackson (especially in the
wake of the then-recent Virginia Tech shootings), approached Connor with two courses
of action: warn Jackson or terminate his employment. The human resources
representative recommended termination, believing the reported employee fears were
4
legitimate. Connor elected to terminate Jackson‟s employment based on his accessing
blocked internet sites and the resulting safety concerns. Jackson was terminated on May
8, 2007. PLANCO subsequently arranged for a police detail to be present at the
workplace for three to four weeks.
Jackson filed his complaint on October 29, 2008, alleging discrimination in
violation of the ADA and retaliation for exercising his rights under the ADA and the
FMLA.2 In his complaint, Jackson specifically alleged Olshevski discriminated against
him. PLANCO moved for summary judgment after the close of discovery.
The District Court granted PLANCO‟s motion and dismissed all of Jackson‟s
claims on September 29, 2009, holding PLANCO had articulated a legitimate, non-
discriminatory reason for the termination, and Jackson had not met his burden of
establishing the termination was a pretext.
Jackson timely appealed.
II.3
2
Jackson also brought claims under the Pennsylvania Human Relations Act, 43 Pa. Cons.
Stat. § 951 et seq. We “generally interpret the PHRA in accord with its federal
counterparts.” Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996). Thus we limit our
discussion to the federal claims with which the PHRA claims are coextensive.
3
We have jurisdiction under 28 U.S.C. § 1291. Our review of a district court‟s grant of
summary judgment is plenary. Carrasca v. Pomeroy, 313 F.3d 828, 832-33 (3d Cir.
2002). We apply the same standard the District Court should have applied initially.
Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987) (en banc), abrogated
on other grounds as recognized in Seman v. Coplay Cement, 26 F.3d 428, 438 n.13 (3d
Cir. 1994). Accordingly, summary judgment is appropriate only if “there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). Where, as here, “the nonmovant will bear the burden of
5
We apply the familiar burden-shifting framework to Jackson‟s claims. The
plaintiff “must carry the initial burden under the statute of establishing a prima facie case
of . . . discrimination.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
If it does so, “the burden of production shifts to the defendant to „articulate some
legitimate, nondiscriminatory reason for the [adverse employment action].‟” Fuentes v.
Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (quoting McDonnell Douglas, 411 U.S. at 802).
“Once the employer answers its relatively light burden . . . the burden of production
rebounds to the plaintiff, who must now show . . . the employer‟s explanation is
pretextual.” Id.
On appeal, Jackson only contests the third prong of the burden-shifting analysis—
whether he has met his burden of demonstrating PLANCO‟s non-discriminatory reasons
for terminating his employment were a pretext for discrimination or retaliation.4
persuasion at trial, the party moving for summary judgment may meet its burden by
showing that the evidentiary materials of record . . . would be insufficient to carry the
nonmovant‟s burden of proof at trial.” Chipollini, 814 F.2d at 896.
4
We note that although PLANCO appears to have conceded a prima facie case of
discrimination before the District Court, it did not concede a prima facie case of
retaliation. The court assumed without deciding that Jackson had made out a prima facie
case of retaliation, and ultimately dismissed the claim because Jackson did not adequately
demonstrate pretext. On appeal, Jackson briefs the discrimination and retaliation claims
together, focusing exclusively on the pretext element of the claim and not otherwise
distinguishing between the two claims. See Pl.‟s Br. at 28-42. PLANCO, in turn, does
not press its argument that Jackson has failed to make out a prima facie case of retaliation
and instead centers its argument on the contention that Jackson waived the retaliation
claim, or in the alternative, that its arguments denying pretext apply equally to the
retaliation claim. We do not think that Jackson has waived the retaliation claim in its
entirety, but we do note Jackson has waived any issues surrounding the timing of his
termination because they are not briefed on appeal. See Laborers’ Int’l Union v. Foster
6
PLANCO stated its actions were predicated on Jackson‟s visiting blocked websites in
derogation of its internet policy, and on employees‟ safety concerns within the context of
his shooting hobby, gun ownership, and visiting of gun websites from the workplace.5
We have explained that, at the summary judgment stage, a plaintiff must point to
direct or circumstantial evidence “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.” Fuentes, 32 F.3d at 764.
The second element—an analysis based on the “natural probative force of the
evidence,” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1111 (3d Cir. 1997)—is
not at issue here. The parties focus exclusively on whether Jackson has adduced
sufficient evidence demonstrating a factfinder could reasonably disbelieve PLANCO‟s
reasons for Jackson‟s discharge. Under this analysis, “the plaintiff cannot simply show
that the employer‟s decision was wrong or mistaken . . . . Rather, the non-moving
plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer‟s proffered legitimate reasons for its
actions that a reasonable factfinder could rationally find them unworthy of credence . . .
.” Fuentes, 32 F.3d at 765 (internal quotations omitted). This heightened level of
Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994). Accordingly, we will address together
the discrimination and retaliation claims briefed by the parties, focusing on the pretext
element of the claims.
5
Jackson appears to have conceded these reasons are legitimate and non-discriminatory.
7
specificity, Simpson v. Kay Jewelers, 142 F.3d 639, 646 (3d Cir. 1998), “places a
difficult burden on the plaintiff ,” Fuentes, 32 F.3d at 765.
The admissible evidence Jackson highlights would be insufficient to carry his
burden at trial. See Chipollini, 814 F.2d at 896. Jackson admitted in his deposition that
his personal belief that Olshevski was motivated to terminate him because of his
disability was the primary support for his claim. See Jackson v. PLANCO, 660 F. Supp.
2d. 562, 580 (E.D. Pa. 2009). He points to no circumstantial evidence of discrimination
or retaliation. Instead, to demonstrate pretext, Jackson‟s arguments reduce to the
contention that Vazquez and Olshevski either were not or should not have been fearful
for their or other employees‟ safety upon learning of Jackson‟s viewing of gun websites
after a meeting with human resources in which Jackson was offered a demotion. In turn,
Jackson contends the decisionmaker, Connor, should have conducted a more searching
inquiry into Vazquez and Olshevski‟s purported fear and Jackson‟s past viewing of gun
sites and reputation as a gun owner. Jackson contends Connor‟s failure to investigate
further before making his decision establishes he acted in “bad faith” sufficient to support
a finding of pretext.
Jackson‟s contentions address whether his discharge was a good or wise decision,
not whether discrimination or retaliation motivated Connor‟s termination of Jackson‟s
employment. See Keller, 130 F.3d at 1109. As the District Court aptly noted, “There is .
. . nothing suspect about Vazquez at one time being comfortable with the idea of Jackson
as a gun owner and a gun web site viewer but later being frightened of it in the context of
8
Jackson‟s performance management in May of 2007.” The record demonstrates that
Jackson‟s circumstances changed—that is, his performance came under scrutiny bringing
about a “performance management” process that angered him. Therefore, even assuming
Vazquez was aware of Jackson‟s visiting gun websites from PLANCO in the past,
Vazquez‟s resulting change in attitude toward Jackson‟s actions does not demonstrate an
inconsistency.
Jackson relies on Kowalski v. L & F Products, 82 F.3d 1283 (3d Cir. 1996), in
support of his contention that Connor acted in bad faith in terminating his employment.
In Kowalski, we held “where the contents of the primary piece of evidence upon which
the defendant relies is contradicted by witness testimony and is not even introduced,
summary judgment is inappropriate.” Id. at 1290. Unlike Kowalski, the facts upon which
Connor made his decision—visiting of blocked gun websites by a disgruntled employee
being “performance managed,” and expressed safety fears of employees—are
uncontroverted in the record. Accordingly, we agree with the District Court‟s conclusion
that “Kowalski does not preclude summary judgment here.” Jackson, 660 F. Supp. 2d. at
580.
Jackson‟s arguments that others were not punished for visiting blocked websites
are similarly unavailing. Although Jackson may raise an inference of discrimination by
demonstrating that “similarly situated persons were treated differently,” Simpson, 142
F.3d at 645, he offers no similarly situated comparators. Jackson only points to his own
testimony that Vazquez visited blocked social-networking sites, and that other employees
9
disregarded the internet policies. But unlike Jackson, Vazquez and others were not being
“performance managed.” Moreover, as the District Court noted, Jackson introduces no
evidence that other angry or disgruntled employees viewed blocked sites about weapons
that could be used to cause physical harm—key elements of Connor‟s decision to
terminate Jackson‟s employment. Jackson, 660 F. Supp. 2d at 578.
In light of an uncontroverted record that establishes Jackson was under
“performance management,” he was disgruntled with his work situation, he visited
blocked gun websites the day after being offered a demotion, his immediate supervisors
reported they feared him, and the company took actions consistent with a heightened
concern about workplace safety, PLANCO‟s explanation it terminated Jackson‟s
employment because he violated the internet policy and out of fear he might pose a safety
risk is not implausible. Jackson has not demonstrated inconsistencies or implausibilities
from which a reasonable factfinder could infer PLANCO‟s actions—particularly those of
Connor, the decisionmaker—were a pretext for discrimination owing to Jackson‟s
purported disability or were a pretext for retaliation because of his complaint to human
resources or his medical leave. Accordingly, Jackson has not met his “high burden,” of
producing evidence demonstrating specific “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions,” in PLANCO‟s articulated reasons for
terminating his employment. Fuentes, 32 F.3d at 765.
III.
For the foregoing reasons, we will affirm the order of the District Court.
10