NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-1398
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THOMAS K. VAUGHAN, JR.,
Appellant
v.
THE BOEING COMPANY
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. Action No. 2-15-cv-04845)
District Judge: Honorable Gerald A. McHugh
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Submitted Under Third Circuit LAR 34.1(a)
December 15, 2017
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Before: CHAGARES, RESTREPO, FISHER Circuit Judges.
(Filed: May 22, 2018)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
RESTREPO, Circuit Judge.
Plaintiff-Appellant Thomas Vaughan, Jr. appeals from an order of the District
Court granting summary judgment to his former employer, The Boeing Company, on his
federal and state law claims of race discrimination and retaliation. We will affirm.
I1
As the District Court aptly remarked, this case presents an unfortunate situation:
the falling out between a long-time employee and his employer. In 2013, after eighteen
years of working at Boeing, Vaughan was fired from his position as a composite
fabricator due to an altercation with a shift manager. However, Vaughan was able to
negotiate his return pursuant to a Reinstatement and Last Chance Agreement entered into
by Vaughan, his union, and Boeing. The Last Chance Agreement required Vaughan to
meet regularly with an Employee Assistance Program (“EAP”) counselor, Richard
Buxton, who worked on-site at Boeing but was employed by a third-party counseling
agency.2 This agreement also put Vaughan “on notice that any incident, considered to be
insubordination, either direct or indirect, [would] result in his immediate discharge.” JA
140.
Upon Vaughan’s return to Boeing, he was moved from the department where he
had worked for the previous six years and the task with which he was familiar—
1
Because we write solely for the benefit of the parties, we recite only the facts
necessary to this opinion.
2
The conversations between employees and any third-party EAP counselors are
confidential, and counselors may only break that confidentiality in extreme circumstances
or if given permission by the employee.
2
“deflash,” or the grinding down of airplane parts to ensure smoothness. Instead, Vaughan
was assigned to a new task in a new department with a new supervisor. Specifically,
Vaughan was assigned to perform “bonding,” or attaching component parts to aircrafts, in
the V-22 Osprey Department (“V-22 Department”) under the direction of Charles Moyer,
a white supervisor. Out of approximately twenty to twenty-five employees, Vaughan was
the only black composite fabricator in Moyer’s bonding operation in the V-22
Department.
Initially, Vaughan was tasked with sweeping the floor, rather than with substantive
bonding work. After several weeks of being constrained to sweeping work, Vaughan
expressed his frustration to Moyer. Vaughan also conveyed his concern to Buxton that he
was spending an unusual amount of time sweeping and still had not been given
substantive work. Vaughan gave Buxton permission to relay this concern to the employee
relations department, which Buxton did. Within a week of Buxton’s notice to employee
relations, Vaughan was finally given “meaningful work[.]” JA 147.
Once performing his primary task in bonding—attaching fuel bag hangers to
airplane fuel tanks—Vaughan felt that he was not receiving enough hands-on training,
and he relayed this concern to Buxton. Vaughan also expressed this training concern to
Moyer on several occasions. On one such occasion, Moyer responded to Vaughan’s
request for training by asking “if [he] was an idiot.” JA 90. Vaughan notified Buxton of
Moyer’s unprofessional and unfortunate insult, who in turn relayed the comment to
Vaughan’s union. In response, Boeing transferred Vaughan the next day to a different
supervisor in the same V-22 Department, Mark Muldowney, who was white. Following
3
this transfer, Vaughan reported to Buxton that he was “more optimistic” in the new
arrangement, now that he was performing substantive work. JA 147.
At the same time, Vaughan consistently experienced difficulty following Boeing’s
safety protocol regarding Foreign Object Debris (“FOD”), or items foreign to the aircraft
under construction. To prevent stray tools in particular from being left behind in a
worksite, Boeing employs a “chit” system in order to regulate the checking out of tools
from any toolbox. Under this system, employees must leave a chit—or piece of plastic
marked with an employee identification number—in place of a tool while it is in use.
Once no longer in use, employees must return the tool to the box and retrieve the
placeholder chit. Employees are required to remove all tools and FOD from the worksite
every time they leave the worksite, no matter how short the break. At the end of their
shifts, employees are required to return all tools to the toolbox and account for all chits. If
any tool or chit is missing, employees are required to notify a manager, and the factory is
shut down until the tool or chit is located. Because of the seriousness of the FOD safety
protocol, all composite fabricators are required to undergo an annual FOD training.
Vaughan had taken the annual FOD training.
Shortly after beginning substantive work, Muldowney noticed that Vaughan left
FOD on an aircraft while on break. Because Vaughan was new to the V-22 Department
and stated he was “unaware of the processes” in that operation, Muldowney briefed
Vaughan about the issue and provided an informal coaching session on FOD control. JA
334. Muldowney informed Vaughan that, pursuant to Boeing’s discipline policy, future
4
violations could result in corrective action, which typically entailed the involvement of
human resources (“HR”) and the issuance of a written warning.
One week later, Vaughan left out several tools on a cart overnight and Muldowney
emailed the HR representative for the V-22 Department about both this infraction and the
previous incident. Because it was not Vaughan’s first infraction, Muldowney requested
that HR issue Vaughan a written warning. Shortly thereafter, while an HR investigation
and decision on the overnight FOD incident was pending, Muldowney observed that
Vaughan left paper backing on an aircraft. Two days later, Vaughan checked out a sander
from a toolbox without placing a chit in its place. Vaughan was ultimately given a written
warning and a three-day suspension in light of his four FOD infractions.
Following his suspension and return to work, Vaughan worked overtime without
prior approval. Earlier on the same day of this violation, Muldowney had discussed the
overtime workplace policy with his employees, including Vaughan. Muldowney notified
HR and requested that Vaughan be disciplined for this infraction. While that decision was
pending, Donald Clayton, a black manager from another operation, notified Muldowney
that he saw an orbital sander left overnight in a cart in the bonders’ work area and that
one of Vaughan’s chits was in the sander’s place. Muldowney reported this final incident
to HR, recommending that Vaughan be fired. Vaughan disputes the sixth and final
infraction—he maintains that he did not leave the orbital sander out, as stated by
Clayton.3
3
Because Vaughan disputes that the sixth and final violation took place, the Court
construes the facts in Vaughan’s favor, as it must at this stage, and considers only his first
5
On January 27, 2014, less than four months after Vaughan’s return, Boeing
terminated Vaughan citing his unauthorized overtime and FOD infractions. Although
Vaughan offers explanations for them, he does not dispute that the first five infractions—
four FOD and one overtime—occurred.
Vaughan filed this action against Boeing asserting claims of race discrimination
and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq.; 42 U.S.C. § 1981; and the Pennsylvania Human Relations Act
(“PHRA”), 43 Pa. Stat. §§ 951–63. The District Court granted summary judgment in
favor of Boeing on all claims. Vaughan timely appeals.
II
The District Court had jurisdiction pursuant to 28 U.S.C §§ 1331 and 1367, and
we have jurisdiction pursuant to 28 U.S.C. § 1291.
We exercise plenary review over a District Court’s order granting summary
judgment. Mandel v. M & Q Packaging Corp., 706 F.3d 157, 164 (3d Cir. 2013).
Therefore, we apply the same standard as the district court. Id. Summary judgment is
appropriate where “the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We
view the facts in the light most favorable to the nonmoving party; do not engage in
five infractions. Moreover, to the extent that a jury’s consideration of the disputed
infraction would not impact the outcome, this dispute is not one of material fact sufficient
to preclude summary judgment. See Hampton v. Borough of Tinton Falls Police Dep’t,
98 F.3d 107, 112 (3d Cir. 1996) (“[T]he non-moving party must demonstrate a dispute
over facts that might affect the outcome of the suit.”); Fuentes v. Perskie, 32 F.3d 759,
766–67 (3d Cir. 1994).
6
credibility determinations; and draw all inferences in the non-movant’s favor. Mandel,
706 F.3d at 164. If the nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial,” then there can be no genuine issue of material fact and
we will affirm a District Court’s grant of summary judgment. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986).
III
All claims of race discrimination brought under Title VII, § 1981, or the PHRA
are governed by the “familiar burden-shifting framework” set forth in McDonnell
Douglas v. Green, 411 U.S. 792 (1973).4 Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410
(3d Cir. 1999). Under this framework, a plaintiff first “carr[ies] the initial burden . . . of
establishing a prima facie case of racial discrimination.” McDonnell Douglas, 411 U.S. at
802; see also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981). In
order to establish a prima facie claim of discrimination, “[a] plaintiff must show that: 1)
[he] is a member of a protected class, 2) [he] was qualified for the position [he] sought to
attain or retain, 3) [he] suffered an adverse employment action, and 4) the action occurred
4
We have previously held that “the substantive elements of a claim under section
1981 are generally identical to the elements of an employment discrimination claim under
Title VII.” Brown v. J. Kaz, Inc., 581 F.3d 175, 181–82 (3d Cir. 2009). The same is true
for claims brought pursuant to the PHRA. Atkinson v. LaFayette College, 460 F.3d 447,
454 n.6 (3d Cir. 2006) (“Claims under the PHRA are interpreted coextensively with Title
VII claims[.]”). Accordingly, we evaluate Vaughan’s several race discrimination claims
simultaneously.
7
under circumstances that could give rise to an inference of intentional discrimination.”
Mandel, 706 F.3d at 169 (quoting Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008)).
If a plaintiff is able to set out a prima facie case of discrimination, the burden then
“shift[s] to the employer to articulate some legitimate, nondiscriminatory reason for the
employee’s rejection.” McDonnell Douglas, 411 U.S. at 802. Finally, if the employer
articulates such a reason, the burden shifts back to the plaintiff to show that the
employer’s “stated reason . . . was in fact pretext.” Id. at 804.
A plaintiff can defeat summary judgment by demonstrating pretext in one of two
ways: 1) by “point[ing] to evidence in the record that would cause a reasonable juror to
disbelieve the employer’s articulated legitimate non-discriminatory reason, thereby
creating a genuine dispute of material fact as to the credibility of that reason[,]” Burton v.
Teleflex Inc., 707 F.3d 417, 430–31 (3d Cir. 2013) (citing Fuentes, 32 F.3d at 762), or
2) “pointing to evidence that indicates that the employer acted with discriminatory
animus[,]” id. If proceeding by the first method, a plaintiff need not provide evidence that
the employer acted with animus, but rather only that the employer’s rationale is
“unworthy of credence[.]” Id. (quoting Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691
F.3d 294, 302 (3d Cir. 2012)).
To establish a prima facie claim of retaliation, a plaintiff must show that “(1) [he]
engaged in activity protected by Title VII; (2) the employer took adverse employment
action against [him], and (3) there was a causal connection between [his] participation in
the protected activity and the adverse employment action.” Moore v. City of Phila., 461
F.3d 331, 340 (3d Cir. 2006). “[A]t the prima facie stage, a plaintiff need only proffer
8
evidence sufficient to raise the inference that [his] engagement in a protected activity was
the likely reason for the adverse employment action[.]” Carvalho-Grevious v. Del. State
Univ., 851 F.3d 249, 253 (3d Cir. 2017) (emphasis in original).
IV
A
Boeing does not dispute that Vaughan has met the first three elements of a prima
facie case of race discrimination. Therefore, the only question remaining for Vaughan to
establish a prima facie claim is whether the circumstances surrounding his termination
give rise to an inference of race discrimination. The District Court reasonably found the
question a close one, and ultimately decided Vaughan narrowly made a showing
supporting a discriminatory inference. But, even if we presume Vaughan has made such a
showing and has, therefore, stated a prima facie case of race discrimination, Vaughan’s
claim would nonetheless fail at the third step of the McDonnell Douglas framework:
pretext.
At the first step, we assume arguendo that Vaughan has set forth a prima facie
claim. At the second step of the McDonnell Douglas framework, Boeing has articulated a
legitimate, non-discriminatory rationale for Vaughan’s termination: Vaughan’s many
FOD infractions and his overtime violation. At the third step, Vaughan has not overcome
that rationale by pointing to evidence that would either undermine the credibility of
Boeing’s legitimate, non-discriminatory reason for terminating him or suggest that
Boeing acted with discriminatory animus. Burton, 707 F.3d at 430–31.
9
First, there is no basis to “disbelieve [Boeing’s] articulated legitimate reasons[.]”
Fuentes, 32 F.3d 759, 764 (3d Cir. 1994). Vaughan contends that there is a genuine
dispute of material fact on this point because, in his view, Boeing fired him solely
because of the final, disputed FOD incident. But Vaughan’s FOD infractions were
numerous and, with the exception of one, undisputed by Vaughan. The corrective action
memorandum recommending termination recognizes this, noting that Vaughan “ha[d]
been provided numerous coaching sessions and trainings for similar [FOD] incidents[.]”
JA 259. Moreover, the termination memo cites to Vaughan’s “work[ing] unauthorized
post-shift overtime despite verbal instructions not to do so[.]” Id. Unfortunately for
Vaughan, he was on tenuous ground at the time of this infraction. Acting contrary to
Muldowney’s overtime instructions on the same day they were given could be construed
as “insubordination, either direct or indirect” sufficient to trigger immediate discharge
under the Last Chance Agreement. JA 140. This undisputed evidence regarding the
overtime violation precludes us from finding Boeing’s stated reason for Vaughn’s
termination unworthy of credence.
Second, Vaughan has not “point[ed] to evidence that indicates that the employer
acted with discriminatory animus.” Burton, 707 F.3d at 430–31. Vaughan offers as
comparators the names of white employees who he posits had violated FOD and overtime
requirements without repercussions. But even accepting, as we must at summary
judgment, Vaughan’s testimony that some of his white co-workers were committing
FODs or performing unauthorized overtime without repercussions, neither Vaughan’s
testimony nor the balance of the evidence suggests that those employees were similarly-
10
situated and therefore proper comparators. For example, he has not shown that each of
the identified white employees committed multiple violations with impunity. Moreover,
Vaughan was an employee on a “Last Chance.” Vaughan has not indicated whether the
other white bonding employees were on similar probationary status. Thus, Vaughan has
not provided adequate comparator evidence. See Simpson v. Kay Jewelers, Div. of
Sterling, Inc., 142 F.3d 639, 645 (3d Cir. 1998) (“The plaintiff has the burden of
demonstrating that similarly situated persons were treated differently.” (citing Burdine,
450 U.S. at 258)).
Because Vaughan has not provided reason to disbelieve Boeing or find racially
discriminatory animus in his termination, he has failed to meet his burden to show pretext
under McDonnell Douglas.
B
Finally, Vaughan has failed to state a prima facie claim of retaliation. For the
purposes of this motion, the parties agree that Vaughan engaged in protected activity. We
accept, as we must at summary judgment, Vaughan’s contention that the protected
activity at issue is his communication to Buxton that he believed he was being treated
unfairly because of his race. The parties also agree that he suffered adverse employment
action. Therefore, only the third element is in dispute—that a causal connection existed
between the first and second elements.
The Court agrees with the District Court that Vaughan has failed to establish such
a causal connection. In order “for protected conduct to be a . . . factor in a decision, the
decisionmakers must be aware of the protected conduct.” See Ambrose v. Township of
11
Robinson, 303 F.3d 488, 493 (3d Cir. 2002). Without such awareness, the causal chain is
broken.
Vaughan has presented evidence that Buxton communicated Vaughan’s concern
that he “was spending an unusual amount of time sweeping the floor” to Boeing’s
employee relations department. JA 147. But Vaughan has not presented any evidence that
Boeing was made aware or had knowledge of the component of Vaughan’s
communication which would be protected—that race discrimination may be at the root of
his sweeping concern. Though Buxton testified that he privately believed Vaughan may
have been tasked to sweep for so long due to discrimination, Buxton also testified that he
kept that belief private from both Vaughan and from Boeing. Buxton further testified
that, because his communications with Vaughan were confidential, he only conveyed to
Boeing the portion of their conversation that Vaughan permitted Buxton to relay—that
Vaughan was given “excessive[]” sweeping duties and was concerned that he had not
performed substantive work since his return to Boeing. Id. Buxton did not frame
Vaughan’s sweeping concern as one of race discrimination when conveying it to Boeing.
Vaughan does not dispute Buxton’s testimony, but instead argues that this Court
should nonetheless make the inference that the employee relations department,
Muldowney, and other supervisors nonetheless knew of the discriminatory nature of
Vaughan’s complaint. But, as the District Court reasonably noted, this request goes too
far. At summary judgment, we must view the facts in the light most favorable to Vaughan
only to the extent that there is a genuine dispute as to those facts. Scott v. Harris, 550
U.S. 372, 380 (2007). Similarly, we must only draw all reasonable inferences in
12
Vaughan’s favor “to the extent supportable by the record.” Id. at 381 n.8. To assume that
Boeing knew Vaughan engaged in protected activity where the record suggests otherwise
would be an unreasonable inference that we cannot make. Vaughan has, therefore, failed
to show his protected activity was a factor in Boeing’s decision. Without a showing of
causation, Vaughan has failed to establish a prima facie claim of retaliation.
V
For the foregoing reasons, we will affirm the judgment of the District Court.
13