NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-4811
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WAYNE MCNEILL,
Appellant
v.
GREYHOUND LINES, INC.
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-13-cv-01947)
District Judge: Honorable Anita B. Brody
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 5, 2015
Before: CHAGARES, JORDAN and NYGAARD, Circuit Judges
(Opinion filed: October 5, 2015)
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OPINION*
___________
PER CURIAM
*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Wayne McNeill, pro se, appeals from an order of the District Court granting
Greyhound Lines, Inc.’s motion for summary judgment. For the following reasons, we
will affirm.
McNeill, an African American man who has worn his hair in dreadlocks since
2007, was a Philadelphia-based driver for Greyhound from 1998 until his termination in
2013. Greyhound’s employee grooming policy requires that men’s hair be styled so that
it does not “stick out over [the] shirt collar.” Under Greyhound’s “personal
conduct/courtesy” policy, drivers must “be pleasant and courteous in dealing with
passengers . . . and fellow employees” and refer disputes to a supervisor for resolution so
as to avoid arguments. Under Greyhound “Work Rules,” an employee may be
discharged for “[d]iscourtesy to any customer.”
Once he started wearing dreadlocks, McNeill sometimes tied them back in a
ponytail hanging down his back while at work. Supervisors would tell him to “tie it up,
cover it up. Do something with it.” Greyhound Northeast Regional Vice President
Michael Fleischhauer noticed that McNeill wore his hair hanging down his back in
violation of the grooming policy and, according to McNeill, would warn him about the
violation every time they spoke.
In February 2011, Greyhound Pool Manager Mark Black conducted a “road
check” on McNeill, who was driving the Philadelphia-Scranton route. After driving to
Scranton, Black observed, McNeill deviated from his route by driving to a Walmart near
Mt. Pocono for two hours with a female Greyhound driver from New York as a
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companion. Black cited McNeill for the deviation and for violating the uniform policy—
including for wearing his braided hair “over his jacket collar to his shoulder blades”—
and he was suspended without pay for three days in March 2011. In May 2011, McNeill
filed a complaint with Equal Employment Opportunity Commission (“EEOC”) and
Pennsylvania Human Rights Commission (“PHRC”), alleging that Greyhound
supervisors were discriminating against him based on gender and race.
On November 3, 2011, Philadelphia Operation Manager Reginald James and
District Manager Evan Burak saw McNeill in the Philadelphia terminal. McNeill said his
hair was tied up at the time but a few strands might have fallen out. Burak approached
him and asked if he was “taking care of that problem,” and McNeill asked in reply,
“What problem?” Based on that incident, James suspended McNeill without pay for
three days for violating the grooming policy. McNeill filed another EEOC and PHRC
complaint alleging race and gender discrimination on November 14, 2011.
On December 22, 2012, a Greyhound dispatcher in Texas sent McNeill out to
rescue a bus en route to New York that broke down in Sugarloaf, Pennsylvania. She
directed McNeill to, once there, wait with the disabled bus for the tow truck to arrive
while the other driver, Dana Hawkins, drove her passengers on to New York in McNeill’s
bus. Once he arrived, Hawkins told him to drive to New York because she was too tired
to, although McNeill knew she still had driving hours left on her schedule. They called
the dispatcher on Hawkins’ cell phone for clarification, and got into a disagreement on
the nearly empty broken down bus over who should drive. The dispatcher transferred the
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call to a Greyhound manager in Texas, Michael Massinburg, who told McNeill to drive.
James then called McNeill on his cell phone and asked him to “be the bigger person” and
drive the passengers to New York. McNeill agreed, returned to his bus, which all but one
of the passengers—who had arranged to be picked up in Sugarloaf—had boarded, and
left without saying anything else to Hawkins or the lingering passenger.
James undertook an investigation of the Sugarloaf incident and solicited
statements from Hawkins and McNeill. Hawkins alleged that McNeill cursed, called her
lazy, demonstrated enough anger to cause the passenger to comment, threw her phone
after the call with Massinburg ended, ignored the passenger’s question to him, and drove
off, leaving them behind. James reviewed McNeill’s disciplinary record and discussed
firing him with City Manager Roderick Gibson and Human Relations Manager Gerrod
Norman. On January 3, 2013, Greyhound terminated McNeill for violating the “personal
conduct/courtesy” driver rule at Sugarloaf coupled with his prior disciplinary record.
McNeill sued Greyhound under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e–2(a), 3(a), and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa.
Cons. Stat. § 955, alleging that Greyhound—specifically, Fleischhauer and Burak—
engaged in (1) racial and gender discrimination on account of his ethnic and cultural
hairstyle and (2) retaliation for his filing discrimination complaints with the EEOC and
PHRC. He advanced disparate treatment and disparate impact theories. On November 5,
2013, the District Court dismissed his disparate impact claims. On November 25, 2014,
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the District Court entered summary judgment in Greyhound’s favor, dismissing
McNeill’s disparate treatment claims. McNeill timely appealed.
We have jurisdiction under 28 U.S.C. § 1291. McNeill does not challenge the
District Court’s dismissal of his disparate impact claims, only its entry of summary
judgment against his disparate treatment claims.1 We review de novo an order granting
summary judgment. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002). Summary
judgment is appropriate where there is no genuine dispute of material fact and the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). To survive summary
judgment, there must be sufficient evidence to support a reasonable jury returning a
verdict in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). We view the evidence in favor of the nonmoving party and give him
the benefit of all reasonable inferences. Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir.
2014) (citation omitted).
At the threshold, Greyhound argues that McNeill’s appeal should be denied
because he filed a disorganized and indecipherable brief that fails to develop any issues
or cite authority and lacks an appendix. Because McNeill is proceeding pro se on appeal,
we liberally construe his filings and hold them to “less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
citation and quotation marks omitted). Even pro se litigants’ briefs must present and
1 We do not distinguish between McNeill’s Title VII and PHRA claims because the same
standards govern each. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 409 (3d Cir. 1999).
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argue issues, however, so that we may know what district court action they dispute. See
Fed. R. App. P. 28(a)(5)–(8); Al–Ra’id v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995).
McNeill asserts that the District Court incorrectly decided the facts and
erroneously applied the law without explaining how it did either. The only issues
McNeill even minimally develops concern his claims that Greyhound “submitted
numerous false statements” and, during depositions, its counsel “coached witnesses,
raised repeated speaking objections, and interrupted [Greyhound’s] own witnesses before
they could reveal damaging information.” He does not explain, however, what
statements were false or support his assertions with evidence.2 He also claims that
Greyhound witnesses heard each other’s testimony. McNeill was represented by counsel
during the depositions. His attorney had the opportunity to object to any inappropriate
behavior, to cross-examine witnesses on any testimony that Greyhound sought to
obscure, or to move for a witness-sequestration order pursuant to Fed. R. Civ. P. 26(c)(1).
Finally, McNeill failed to address most of these issues on summary judgment before the
District Court. See Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir. 1983) (“It
is a well-settled rule that a party opposing a summary judgment motion must inform the
trial judge of the reasons, legal or factual, why summary judgment should not be entered.
If it does not do so, and loses the motion, it cannot raise such reasons on appeal.”)
2 While McNeill disputes Greyhound’s and Hawkins’ claim that McNeill improperly left
behind on the broken-down bus the passenger who was undisputedly awaiting a separate
ride from Sugarloaf, the mere fact that he disagrees with their characterization of the
incident does not mean that Greyhound’s or Hawkins’ statements were knowingly false.
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McNeill also argues that the District Court should have ignored Greyhound’s
statement of facts entirely, as the district judge’s briefing procedure left him no
opportunity to dispute them. This argument is meritless. The District Court’s scheduling
order directed parties to adhere to a “traditional” summary judgment procedure and
submit statements of facts along with the motion and response. McNeill could have
disputed Greyhound’s factual assertions in his response; indeed, his statement of facts at
times relies entirely on certain claims in Greyhound’s statement. Greyhound understood
and seized its opportunity to dispute McNeill’s facts in its reply. The District Court
properly deemed undisputed any of Greyhound’s facts that did not contradict those
presented by McNeill. See Fed. R. Civ. P. 56(e)(2).
McNeill fails to specifically challenge any other action by the District Court. His
generalized assertions of legal and factual error are unhelpful and insufficient to raise
issues for our review. See Al–Ra’id, 69 F.3d at 31. Similarly, the seemingly haphazard
attachments to McNeill’s brief—to the extent we can decipher them and infer their
import—present either irrelevant material or excerpts of argument submitted to the
District Court prior to summary judgment. By and large, these documents do not indicate
how the District Court’s ensuing decision is allegedly reversible. See id.3
3 The final page of McNeill’s submission is blurred and portions of the text are cut off.
In pertinent part, McNeill appears to claim that Greyhound provided evidence of his
disciplinary history that actually related to another driver or is otherwise factually
disputed. However, the disputed records, accurate or not, were only briefly mentioned by
the District Court and not dispositive in its analysis. Further, whether or not Greyhound’s
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Moreover, we have reviewed the record and the parties’ arguments before the
District Court and cannot find any meritorious argument that McNeill could have raised
on appeal. McNeill made an insufficient showing that Greyhound’s proffered reason for
terminating him—his disciplinary history culminating in conduct that violated the
personal conduct/courtesy policy during the Sugarloaf incident—was a pretext for racial
or gender discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); Smith v. Borough of Wilkinsburg, 147 F.3d 272, 278 (3d Cir. 1998). Nor was
there evidence causally connecting his termination to the EEOC and PHRC complaints he
filed more than a year earlier. See Leboon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503
F.3d 217, 232–33 (3d Cir. 2007). Because there was insufficient evidence to support
McNeill’s racial and gender discrimination and retaliation claims, the District Court
properly entered summary judgment in Greyhound’s favor. See Anderson, 477 U.S. at
248.
For the foregoing reasons, we will affirm the judgment of the District Court.
McNeill’s motion requesting that we reconsider granting Greyhound leave to file a
supplemental appendix is denied.
reactions thereto were fair, McNeill was undeniably involved in other disciplinary
incidents along with the crucial Sugarloaf episode, providing Greyhound with a
legitimate reason for terminating him. See Keller v. Orix Credit All., Inc., 130 F.3d
1101, 1109 (3d Cir. 1997) (noting that question is not the wisdom of the employer’s
decision but whether it was due to discrimination).
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