Opinion
Civil Action No. 99-3028.
March 31, 2004
MEMORANDUM ORDER
Plaintiff Mark Anthony Lewis brought this action pro se against his former employer, Kinko's of Ohio ("Kinko's") alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the Pennsylvania Human Relations Act ("PHRA"), PA. CON. STAT. § 951 et seq., and 42 U.S.C. § 1981. Plaintiff initiated the instant action filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). After reviewing the complaint, the EEOC issued Plaintiff a right to sue letter. Plaintiff then filed the instant action in this Court. Presently before the Court is Defendant's Motion for Summary Judgment. (Doc. No. 35.) For the following reasons, Defendant's Motion will be granted, and Plaintiff's Request will be denied.
Plaintiff has been prolific in his filings. These filings contain numerous allegations that are not supported in the evidentiary record. Since, as discussed below, pursuant to Rule 56 of the Federal Rules of Civil Procedure we are required to consider "such facts as would be admissible in evidence" at trial, and since "Rule 56(e) does not allow a party resisting the motion to rely merely on bare assertions, conclusory allegations or suspicions," Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982), we have omitted these unsupported allegations from the statement of facts.
Plaintiff is an African American male, hired by Defendant in 1994. Initially, Plaintiff was employed as a copy consultant, making copies for customers in Defendant's Walnut Street store. (Lewis Dep. of Jan. 13, 2000 at 31, 33.) At some point thereafter, Plaintiff transferred to Defendant's City Line Avenue store. (Id. at 31.) While at the City Line Avenue location, Plaintiff's official title was that of copy consultant. But Plaintiff also assisted the desktop publishing department in completing graphic design jobs for customers. (Id. at 35.) Plaintiff was then invited to transfer to Defendant's Willow Grove location as an employee in the desktop publishing department. He was given "family friendly hours" at his request. (Id. at 44-46.)
Despite being confident that he would deliver excellent performance at the Willow Grove location, Plaintiff received what he believed to be a less than enthusiastic welcome upon his arrival from the store manager, Jim Alexander. (Id. at 172-73.) At his deposition, Plaintiff testified that Alexander "barely wanted to put his hand to shake mine," did not discuss job parameters or responsibilities with him, and did not provide Plaintiff with a paycheck until he had been at the Willow Grove location for "almost a month." (Id. at 172-73.)
Plaintiff was given a verbal warning in January 1995, and later was "written up and counseled" in December 1995, for installing and using non-standard fonts on Defendant's computer system. Plaintiff claims that although he never actually violated the Defendant's nonstandard font policy, he was treated more severely than a white female employee who in fact did violate the policy on a regular basis. (Id. at 174.) With regard to this claim, Plaintiff stated: "To my knowledge all disciplinary actions that took placed [sic] were cleared up and removed from my file once proper review was requested by the second in command at the Willow Grove location." (Pl. Interrog. Resp. No. 8.) Plaintiff also stated that any disciplinary actions taken against him related to the unauthorized use of fonts, were subsequently cleared up and withdrawn "[b]ecause it was a misunderstanding." (Lewis Dep. of Jan. 13, 2000 at 171.)
Plaintiff's Amended Complaint also alleges that Plaintiff did not receive wages comparable to his white co-workers, and did not receive any explanation as to this alleged disparity in pay. Regarding his own wages, Plaintiff testified that he had believed he would receive an initial wage of $9 per hour at the Willow Grove location. Plaintiff points to an undated document which was signed by the store manager but not signed by Plaintiff, which states that the Plaintiff "will be" paid a rate of $9.00 per hour. (Pl. Add. to Summ. J. Req. Ex. 2.) In fact, Plaintiff initially was paid a rate of $7 per hour at the Willow Grove location, but he negotiated a wage increase of $8 per hour after he found out that he was, in fact, only receiving $7 per hour. (Lewis Dep. of Jan. 13, 2000 at 201.) Later, Plaintiff received another wage increase to $8.50 per hour. (Id. at 67.) Defendant's records as of December 20, 1995 show that Plaintiff's pay rate was $8.67 per hour. (Def.'s Mot. for Summ. J. Ex. 4 "Autopay Payroll Register".)
Plaintiff points to the wages three white employees received, as evidence that he was discriminated against based on his race. The first white employee, named Desmond, was hired at a rate of $9 per hour in the same department as Plaintiff. According to Plaintiff, "[Desmond] lied to Kinko's and said that he knew desktop publishing but he didn't." (Lewis Dep. of Jan. 13, 2000 at 52.) Plaintiff testified that Desmond had also informed him that as a result of Desmond's poor performance, he was being moved to the lower-skilled position of copy consultant, but would receive the same $9 per hour pay rate. (Id.) Soon after being moved to the position of copy consultant, Desmond was "pushed out the door." (Id. at 58.) The second white employee, named William Mavracic, allegedly received a pay increase from $7.50 per hour to $8.25 per hour in August, 1995, when he went from being a part-time employee to a full-time employee. (Def.'s Mot. for Summ. J. Ex. 5.) The third white employee, named Eric, told Plaintiff that he got a pay increase after "his father called Jim [Alexander] up and told him it was some type of injustice. . . ." (Lewis Dep. of Jan. 13, 2000 at 56.) Plaintiff also testified that it was his personal impression that the standard industry wage rate was $12 per hour. (Id. at 47.)
On February 22, 1996, Plaintiff was involved in an extended confrontation with a customer named Jim DiQuattro at Kinko's Willow Grove location. According to Plaintiff, the customer entered a non-public area of the store, and Plaintiff was concerned that he might steal something. (Id. at 65.) A protracted confrontation between the two men ensued. Plaintiff testified that in response to a series of insults and threatening actions by DiQuattro, he told the customer "I am 245 pounds of all man. There is not one ounce of me scared of you, but because I have responsibilities, you are allowed to disrespect me this way. . . ." (Id. at 85.) Plaintiff described his physical demeanor during the confrontation: "I unloosened my shirt. I am visibly sweating when someone's jerking in front of you. . . . I am dripping. I am — I am now pissed off. . . ." (Id. at 85-86.) Customers and co-workers observed the confrontation between the two men. (Id. at 89, 90.) The confrontation at the store apparently lasted somewhere between fifteen minutes and one hour. Plaintiff admitted he was emotional and loud during the confrontation, but denied yelling at DiQuattro. (Id. at 96.)
On three separate occasions during the confrontation, Plaintiff walked out of the store. The first time, Plaintiff claims that he began "punching out" on the time clock but then "storm[ed] out" in order to avoid DiQuattro's taunts and insults, and "to take a drive," although he ultimately decided not to drive because of traffic. (Lewis Dep. of Jan. 13, 2000 at 86, 102.) At that point, immediately outside the door to the store:
I said to [a bystander customer] — as [DiQuatto's] hollering about he's scared of me. The P's scared of me. You can't go nowhere. You can't go nowhere. And I said to the [bystander] customer . . . I am 245 pounds of man. I am not scared of that customer and if I did not have a daughter and I was younger and didn't have to worry about responsibilities . . . all that he's asking for he would receive. . . . I said that to a customer.
(Id. at 89.)
After a customer informed Plaintiff that DiQuattro was "not going anywhere. He's waiting for something," Plaintiff re-entered the store. (Id. at 90.) DiQuattro then immediately approached Plaintiff and continued his verbal harassment of Plaintiff. (Id. at 101.) This particular confrontation lasted only two to three minutes, since, as Plaintiff put it, "I knew who his boss was, I didn't have to reason with him." (Id.) Plaintiff then motioned to another employee to call the police, and walked out of the store a second time. (Id. at 101-102.) He stood in front of the store for two or three minutes, but then re-entered the store even though the police had not yet arrived. (Id. at 113.) The confrontation between Plaintiff and DiQuattro renewed, and Plaintiff testified that DiQuattro approached him and "was right up in my face." (Id. at 119.) After a few more words with DiQuattro, Plaintiff left the store a third time. (Id.) Plaintiff was unsure why he exited the store a third time, stating "[i]f you want me to be logical now, I would be hard pressed to do it in terms of exactly why I did what I did. . . ." (Id.) Plaintiff later testified that as he left the store this third time, DiQuattro was "maybe two, three inches in front of my face." (Id. at 121.) At this close range with DiQuattro, Plaintiff was "nodding my head up and down as if to say okay, yeah . . . and I said, you know what, may Allah be with you. . . ." (Id. at 124.) At some point during the confrontation, Plaintiff's co-worker James Spells, "ran from the back all the way up to the front." Plaintiff testified that "all I know is that James . . . had wrapped his arm around me and said, yo, brother." (Id. at 123, 126.) Plaintiff explained his own conduct in this incident: "this speaks to the silly thing about testosterone." Id. at 123.
At some point, an African American co-worker of Plaintiff's, Alvin Huttson, asked both Plaintiff and DiQuattro to calm down. (Id. at 224-25.) Plaintiff testified that, "[w]hen an African American male hears another African American male being called the kind of names that should trigger a response[,] and when I got into the stern voice I had mentioned . . . any African American would have said that." (Id. at 225.) Huttson later told the new manager at the Willow Grove Store, Jill Schulter, that Plaintiff was emotional and muttering under his breath. (Id.) Plaintiff testified that he did this "in order to calm myself down." Id. Plaintiff testified did not feel threatened by DiQuattro and was not physically harmed by DiQuattro. (Id. at 49).
The Kinko's 1996 Co-Worker Handbook contains a section entitled "Standards of Conduct." This section states, in pertinent part:
Kinko's commitment to providing an exemplary working environment for its co-workers and customers requires that each and every co-worker behave in an ethical and professional manner at all times. To preserve these principles, certain types of conduct have been determined to be unacceptable and grounds for immediate dismissal without benefit of progressive disciplinary measures. . . . The following should be considered as a representative list:
. . .
4. Obscene, abusive, intimidating, or threatening language/behavior with customers, co-workers, or non-employees. . . .
(Def.'s Mot. for Summ. J. Ex. 7) (emphasis added). On her first day in the position of manager at the Kinko's Willow Grove store, and one day after Plaintiff's confrontation with DiQuattro, Schulter terminated Plaintiff's employment. (Lewis Dep. of Jan. 13, 2000 at 131). Plaintiff testified that by the time he reported to work the next day,
[Schulter] had already known everything. In fact, not only did she already know everything, she had all of her notes prepared that day and said she talked to all of the co-workers that day and talked to [DiQuattro] that day. . . . He had come in in a suit and tie. . . .
(Id. at 131.) The former store manager also had apparently called Schulter to tell her about Plaintiff's confrontation. (Id. at 132.)
In discussing the incident Plaintiff stated that "the key thing is I never touched the customer. I never touched the customer. So if you're going to analyze and help a situation out where there was a full-fledged fist fight . . . that's all well and fine, but my situation left more room for you to side with me." (Id. at 147.) Plaintiff testified that he thought Schulter and everyone in the chain of command had handled the incident incompetently. (Id.) In one of the documents that Plaintiff sent to Kinko's after his termination, Plaintiff wrote the following statement: "this case clearly proves Rase [sic] Based practices are used at Kinko s [sic] or that you are Incompetent at your current position. Clearly!!" (Def.'s Mot. for Summ. J. Ex. 6.)
II. PROCEDURAL BACKGROUND
Plaintiff first filed a charge with the EEOC on May 24, 1996. In his EEOC complaint, he alleged wage discrimination on the basis of race, disparate disciplinary treatment on the basis of race, and unlawful termination on the basis of race. The EEOC issued Plaintiff a right to sue letter on March 17, 1999.
Plaintiff initiated this federal action on June 15, 1999 by filing a motion to proceed in forma pauperis. That motion was denied. Plaintiff filed his initial Complaint on July 15, 1999. On March 24, 2000, the Court granted Defendant's Motion to Dismiss the original Complaint, and Plaintiff filed appealed. On appeal, the Third Circuit reversed the Order of the district court dismissing the Complaint, concluding that the Complaint was readily curable. The case was then reassigned to this Court. On December 17, 2001, we Ordered Plaintiff to file an amended complaint. In January, 2002, Plaintiff filed two documents entitled "An Amendment of the Amendment to the Original Charge of Discrimination," (Doc. No. 20), and "Amendment to the Original Charge of Discrimination," (Doc. No. 21). Subsequently, Defendant filed a Motion to Dismiss these amended pleadings on January 16, 2003. In response, Plaintiff filed yet another document entitled "Re: Plaintiffs' Amendment to the Charge of Discrimination," (Doc. No. 23). After denying the Motion to Dismiss, we entered an Order directing the Clerk of Court to attempt to find counsel to represent Plaintiff. However, Plaintiff expressly declined the appointment of counsel at a status conference held in open court. We therefore vacated the aforesaid Order so that Plaintiff could proceed pro se.
On May 9, 2002, we issued an Order scheduling discovery and directing that it be completed by September 6, 2002. In compliance with this order, Defendant filed employment status and last known address information for those former Kinko's employees whom Plaintiff wished to depose. (Doc. No. 29.) However, Plaintiff conducted virtually no discovery in this case. The record yields no indication that Plaintiff conducted any depositions to gather evidence in support of his case. After having three months to conduct discovery, on September 5, 2002, Plaintiff submitted a document to the Court entitled "Motion for Enlargement (Special)." Plaintiff argued that we should extend the discovery deadline in this action, in part because he had not yet deposed these individuals. Plaintiff asserted that Defendant had supplied "the wrong addresses" for the former employees. We denied Plaintiff's request for an extension of the discovery deadline. Defendant then filed this Motion for Summary Judgment. (Doc. No. 35.)
It appears that Plaintiff has submitted a number of documents to this Court in violation of the Clerk's Office document filing rules. On February 21, 2003, the Court received a letter from Plaintiff suggesting that the Clerk's Office misinformed him regarding document filing procedures, and asking the Court to file documents for him. These documents include an unsigned one-page document entitled "Request for Summary Judgment" which states in its entirety:
The Defendant is unable to enter any GENUINE ARGUMENT addressing the specifics of plaintiffs' charge(s).
Here again, more than a sufficient amount of time has passed without the defendant requesting an enlargement of time or attaching their affirmed position to the non-compliant submissions they've offered to date. Therefore plaintiff requests of the COURT an ORDER of summary judgment on all charges asserted against the defendant for the plaintiff.
(Pl. Request for Summ. J., submitted Aug. 24, 2002.) Plaintiff also submitted an "Addendum to Summary Request" in response to Defendant's Motion for Summary Judgment, as well as a document entitled "Supreme Court Facts in Support of Plaintiffs' [sic] Complaint," and a document entitled "Memorandum (In Support of Plaintiffs' [sic] Request that the Court allow Plaintiff Readily Curable amendments on complaints with defects that Liberal Application of the Laws be applied in behalf on the plaintiff)."
III. STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial burden of demonstrating that there are no facts supporting the non-moving party's legal position. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-324 (1986). The burden then shifts to the nonmoving party who "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "The nonmoving party . . . cannot `rely merely upon bare assertions, conclusory allegations or suspicions to support its claim." Townes v. City of Philadelphia, No. Civ. A. 00-CV-138, 2001 WL 503400, at *2 (E.D. Pa. May 11, 2001) (quoting Fireman's Ins. Co. v. DeFresne, 676 F.2d 965, 969 (3d Cir. 1982)). Rather, the party opposing summary judgment must go beyond the pleadings and present evidence admissible at trial through affidavits, depositions, or admissions on file to show that there is a genuine issue for trial. See Celotex, 477 U.S. at 324. "If the non-moving party's evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Kershaw v. Aspin, Civ. A. No. 94-216, 1994 WL 683384, at *1 (E.D. Pa. Dec. 5, 1994) (citations omitted). When deciding a motion for summary judgment, the court must construe the evidence and any reasonable inferences therefrom in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine issue of material fact exists only when "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248.
While a pro se litigant's pleadings are subject to more liberal review than a district court's review of pleadings prepared by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), "this judicial grace does not relieve the pro se plaintiff of the burden of coming forth with some evidence" to avoid summary judgment. Kershaw, 1994 WL 683384, at *2.
IV. DISCUSSION
Discrimination claims under Title VII, 42 U.S.C. § 1981, and the PHRA are analyzed under the framework set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973). See Pamintuan v. Nanticoke Mem. Hosp., 192 F.3d 378, 385 (3d Cir. 1999) (noting that Title VII and Section 1981 are to be analyzed under the McDonnell Douglas burden-shifting framework); Fekade v. Lincoln Univ., 167 F. Supp.2d 731, 740 (E.D. Pa. 2001) (applying McDonnell Douglas burden-shifting framework to discrimination claim under the PHRA). In order to survive summary judgment in race discrimination cases, a plaintiff must first establish a prima facie case of discrimination. Goosby v. Johnson Johnson Med., Inc., 228 F.3d 313, 318 (3d Cir. 2000). Once a plaintiff establishes this prima facie case, this creates an inference of discrimination on the part of the employer. Stewart v. Rutgers, The State Univ., 120 F.3d 426, 432 (3d Cir. 1997). The burden then shifts to defendant to prove a legitimate, nondiscriminatory reason for its actions. Goosby, 228 F.3d at 319. If the employer's evidence creates a genuine issue of fact, the presumption of discrimination drops from the case. Stewart, 120 F.3d at 432. The burden then falls back on the plaintiff to demonstrate "that the proffered reason was merely a pretext for unlawful discrimination." Goosby, 228 F.3d at 319. To make the requisite showing of pretext:
the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the plaintiff must demonstrate such weakness, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them "unworthy of credence," and hence infer "that the employer did not act for [the asserted] nondiscriminatory reasons."Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (emphases added). To survive summary judgment, Plaintiff "must present sufficient evidence to raise a genuine issue of fact as to whether the defendant's proffered reasons were not its true reasons for the challenged employment action." Stewart, 120 F.3d at 433.
A. Allegations of Discriminatory Application of Discipline Policy
To the extent Plaintiff seeks relief for allegations that Defendant discriminated against him in disciplining him for the use of non-standard fonts, Plaintiff has failed to establish a prima facie case. A prima facie case of disparate treatment on the basis of race requires that a plaintiff offer sufficient evidence (1) that he is a member of a protected class; and (2) that he suffered some form of adverse employment action; (3) under circumstances that give rise to an inference of unlawful discrimination. Goosby, 228 F.3d at 318-319 (3d Cir. 2000) (citing McDonnell Douglas, 411 U.S. 792). First, Plaintiff has not demonstrated that he suffered an adverse employment action. Although "[o]bviously, something less than a discharge could be an adverse employment action," some form of adverse employment action is required. Jones v. School Dist. of Phila., 198 F.3d 403, 411-12 (3d Cir. 1999). In viewing the facts in the light most favorable to Plaintiff, he has not demonstrated that this incident was an adverse employment action. According to Plaintiff's own testimony, the disciplinary incident occurred due to a misunderstanding. Subsequently this misunderstanding was cleared up and removed from his employee file. He has provided no evidence showing that he lost any employment opportunities or any other tangible benefits due to this incident. This incident simply does not amount to an "`adverse employment action' sufficient to evoke the protection of Title VII and the PHRA." Id.; see also Wright v. Pepsi Cola Co., 243 F. Supp.2d 117, 121-22 (D. Del. 2003) (finding that where a plaintiff had not suffered a loss of any tangible benefits, he could not establish that he had suffered from an adverse employment action).
B. Allegations of Discriminatory Wage Practices
Plaintiff has also failed to meet his burden of demonstrating a prima facie case of wage discrimination on the basis of race. He has failed to demonstrate that similarly situated nonmembers of the protected class received more favorable wages. As noted above, a prima facie case of disparate treatment on the basis of race requires that a plaintiff offer sufficient evidence (1) that he is a member of a protected class; and (2) that he suffered some form of adverse employment action; (3) under circumstances that give rise to an inference of unlawful discrimination.Goosby, 228 F.3d at 318-319 (3d Cir. 2000) (citing McDonnell Douglas, 411 U.S. 792). In the unequal pay context, a plaintiff must demonstrate that he performed substantially similar work as compared to similarly situated employees who were not members of a protected class. Watson v. Eastman Kodak Co., 235 F.3d 851, 857-58 (3d Cir. 2000); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1087 (3d Cir. 1996); Lawton v. Sunoco, Inc., Civ. A. 01-2784, 2002 WL 1585582, at *7 (E.D. Pa. July 17, 2002). Plaintiff points to a white employee named Desmond who also held a desktop publishing department position and who told him that he received a wage rate of $9 per hour by lying about his skills in order to obtain the position. Plaintiff has not demonstrated that he and Desmond were similarly situated. We do not know what skills Desmond claimed to have had in obtaining this wage rate. Nor do we know if Desmond was similarly situated. We have no information, for example, regarding whether the Willow Grove location's salary budget was the same at the time of Desmond's employment as when Plaintiff held the same position. More importantly, according to Plaintiff's testimony, once it was exposed that Desmond lacked the requisite job skills that he claimed to have possessed, he was "pushed out" of his job at Kinko's. The mere fact that a white employee was paid more than a black employee, without evidence in the record to support the conclusion that the two employees were similarly situated or that they performed substantially the same work, is not sufficient to establish a prima facie case of wage discrimination. This is particularly so where, as here, that same white employee lied about his credentials, was removed from his position, and was then terminated for poor job performance. See Watson, 235 F.3d at 857-58 (3d Cir. 2000) (finding that a plaintiff who did not provide evidence that he was compensated at a lower rate than similarly situated white employees could not survive summary judgment); Aman, 85 F.3d at 1074 (observing that where plaintiffs did not provide any evidence to demonstrate that the jobs performed by the white employees were the same or that the employees had similar credentials, they failed to establish a case of wage discrimination); see also Goosby, 228 F.3d at 322 (holding that where a black plaintiff had shown only that two white women were treated differently than the plaintiff under the same policy did not demonstrate a pretext for unlawful discrimination, where plaintiff had not demonstrated the white women were similarly situated). Since Plaintiff has failed to establish that similarly situated nonmembers of his protected class were treated more favorably, his claim for discriminatory wage practices must fail.
Plaintiff also points to the wages of a white employee in the desktop publishing department, William Mavracic, as evidence that he faced wage discrimination at Kinko's. The record shows that Mavracic received a wage increase from $7.50 to $8.25 when he changed from part time to full time status on May 16, 1995. (Def. Mot. Ex. 5). Moreover, payroll records dated December 20, 1995 indicate that Plaintiff received higher compensation than Mavracic: Mavracic received a pay rate of $7.73 per hour. Plaintiff received a pay rate of $8.67 per hour. (Def. Mot. Ex. 4). In any event, given that we have no information regarding whether any of these individuals were similarly situated, the existence of a white employee who received lower wages than Plaintiff certainly does little to help his cause.
C. Plaintiff's Termination
Finally, we conclude that Plaintiff cannot survive summary judgment on his claim that Defendant terminated him on the basis of race. To make a prima facie showing of racially discriminatory discharge, Plaintiff must demonstrate that "(1) he belongs to a racial minority; (2) he was qualified for the position; (3) he was discharged; and (4) other employees not in a protected class were treated more favorably." Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 638 (3d Cir. 1993). Defendant argues that since Plaintiff has not demonstrated that he was qualified for the position, he is unable to establish a prima facie case of discrimination.
At least one court within the Third Circuit has held that in order to satisfy the second prong of the prima facie case, a former employee who has been terminated must demonstrate that his or her job performance was satisfactory. Wright v. Pepsi Cola Co., 243 F. Supp.2d 117, 121 (D. Del. 2003). Here, although Plaintiff has provided testimony that he possesses excellent desktop publishing skills and is therefore qualified for the job, Plaintiff has not provided information such as performance reviews, deposition testimony or affidavits from other witnesses who could verify whether his job performance was satisfactory. Moreover, his job performance as it relates to dealing with customers could be interpreted as unsatisfactory and, in fact, a violation of Kinko's Co-Worker Handbook. Plaintiff's handling of the customer DiQuattro is sufficient reason to conclude that Plaintiff did not have the qualifications for the position.
In any event, even if we were to conclude that Plaintiff had established a prima facie case, Defendant has proffered a legitimate nondiscriminatory reason for Plaintiff's termination. Defendant's explanation that Plaintiff was terminated due to his behavior in the confrontation with DiQuattro is a legitimate, nondiscriminatory reason for termination. The record demonstrates that Plaintiff engaged in this confrontation with DiQuattro, and that a number of other customers and employees observed the confrontation during its various stages. Plaintiff's own testimony indicates that at times during the confrontation, he engaged with DiQuattro at close range, raised his voice, was visibly sweating and had loosened his shirt, was muttering under his breath, and told DiQuattro and another customer that he was not afraid to fight DiQuattro. The situation was so volatile that two African American employees had to tell Plaintiff to calm down. Kinko's coworker handbook informs employees that abusive or threatening conduct with customers is grounds for immediate dismissal.
In response to this proffered explanation, Plaintiff argues that he should not have been fired, he had done nothing illegal, and he had not physically touched the customer. Plaintiff characterized the decision to fire him as managerial incompetence. Plaintiff's own belief that he should not have been fired for this incident is not sufficient to justify a Title VII, Section 1981, or PHRA violation. As noted earlier, Plaintiff "cannot simply show that the employer was wrong or mistaken" in its decision to terminate him, "since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent."Fuentes, 32 F.3d at 765. Rather, Plaintiff's job is to point us to evidence of weakness, implausibilities, inconsistencies, or contradictions in the Defendant's proffered reasons for termination. Id. Plaintiff has failed in this regard. He has simply relied on his own bald assertions and personal suspicions, as well as unauthenticated documents not produced in discovery. We are satisfied that Plaintiff has failed to establish viable claims of race discrimination under Title VII, Section 1981 and the PHRA.
V. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment will be granted, and judgment will be entered in favor of Defendant.
An appropriate order follows.
ORDER
AND NOW, this 31st day of March, 2004, upon consideration of Defendant's Motion for Summary Judgment (Doc. No. 35), and all papers filed in support thereof, and opposition thereto, it is ORDERED as follows:1) Defendant's Motion is GRANTED; and
2) Judgment is entered in favor of Defendant and against Plaintiff.
IT IS SO ORDERED.