Opinion
Civil Action No. 02-1584.
April 12, 2005
OPINION
I. Introduction
Plaintiff Petros Tatsis (Tatsis) brought this action against his former employer, FreeMarkets, Inc. (FreeMarkets), now known as Ariba, Inc. (Ariba), for national origin discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (Title VII), for civil rights violations under 42 U.S.C. § 1981 (Section 1981), for violations of the Pennsylvania Human Relations Act (PHRA), and for breach of the covenant of good faith and fair dealing.
Presently before the Court is Ariba's Motion for Summary Judgment on all claims. After a complete review of the record, and the Court having held oral argument and thereafter afforded Plaintiff the opportunity to identify record evidence precluding summary judgment, the Court finds that Ariba is entitled to judgment as a matter of law on each of Tatsis' claims.
II. Facts
The following facts are derived from the evidence of record and are taken in the light most favorable to Tatsis, the nonmovant. See Strozyk v. Norfolk Southern Corp., 358 F.3d 268, 277 n. 7 (3d Cir. 2004). Tatsis is a Caucasian man who was born in, and is a citizen of, Greece. He came to the United States in 1991 and received his college diploma in 1994. He attended Rochester Institute of Technology for two years and then began full-time employment as a systems analyst for Compunetix in 1996. He sought to leave Compunetix in 2000 and was contacted by a recruiter working on behalf of FreeMarkets.
Tatsis interviewed for a software engineer position and by letter dated September 8, 2000, FreeMarkets offered him the position of Senior Software Engineer. The letter set forth certain terms and conditions of Tatsis' prospective employment with FreeMarkets, including the following relevant terms under the heading "Salary":
This quoted rate is for convenience and is not intended as a guarantee of employment for any fixed period. Neither you nor [FreeMarkets] are obligated to fulfill any set term. This employment relationship may be terminated by either party for any reason at any time.
Tatsis accepted FreeMarkets' offer and signed the letter acknowledging its terms on September 10, 2000.
Tatsis began working for FreeMarkets on September 25, 2000 with the Technology and Engineering division. Shortly thereafter, he was assigned to work under the direction of FreeMarkets Development Manager, Joseph Hayes (Hayes). Tatsis' responsibilities included participating in the analysis, design, construction, unit testing and implementation of FreeMarkets' software applications, analyzing business requirements, and playing a lead role in the development of an application implementation strategy. He worked on projects with other employees on teams. The ability to work with others is important because of the frequent interaction among team members.
Tatsis' 2000 year-end performance review documented his need "to work on his two-way communication with other employees" and his confrontational nature. Following the performance review, Tatsis and Hayes discussed ways for Tatsis to improve his performance and he agreed to work on those areas which needed improvement.
Tatsis' annual performance review was completed by Hayes and delivered on September 5, 2001. Tatsis was given a general performance rating of 2.8 out of 5. Specifically, he was given a 2 out of 5 (occasionally achieves) for interaction with team members and the comments noted that, although he had improved in this area, "he needs to become more aware that others may not read [his competitiveness] correctly." In the category of communication, Tatsis also received a 2 out of 5 rating.
Tatsis' principal responsibility during the months before his discharge involved the FreeMarkets Desktop application, one of FreeMarkets' software products. He was assigned to the Frequently Asked Questions (FAQ) and management web services functions. In or about the end of Summer 2001, Tatsis was asked to take the lead on a technical project related to the FAQ function. The project had an unusually high number of defects which prevented the release of the software, the project was not completed on time, and other employees had to be assigned to the project to correct the problems.
Tatsis was also assigned by Hayes to be the lead technical person to complete file management web services functions and to perform application installation tasks for FreeMarkets Desktop and established a testing deadline of October 22, 2001. Tatsis acknowledges that he knew about this deadline and that he failed to meet it. Hayes believed that Tatsis failed to start the assignment promptly and failed to coordinate his work with other team members.
Following the missed deadline, on October 31, 2001, and in light of what his supervisors considered to be ongoing performance deficiencies and apparent unwillingness on Tatsis' part to improve them, Hayes and his supervisor, Michele Myers, discussed Tatsis' deteriorating performance with FreeMarkets' People Development Manager, Craig Stambaugh. At that time, Hayes and Myers informed Stambaugh that Tatsis was not performing at the level of Senior Software Engineer. Among other things, Tatsis had missed deadlines and his attitude and performance were still lacking. Consequently, FreeMarkets concluded that providing Tatsis additional time for improvement would not yield increased performance results for the company.
Hayes was not authorized to discharge employees, and the decision to discharge Tatsis was the result of a group discussion and consensus between Hayes and Myers, with review and concurrence by human resources manager Stambaugh. After considering the information presented to him by Hayes and Meyer, Stambaugh determined that the termination of Tatsis' employment was warranted. Tatsis was discharged on November 6, 2001.
Tatsis avers that Hayes, his direct supervisor, and Matthew Choate, a non-supervisory co-worker, acted discriminatorily towards him. Soon after Tatsis started work with FreeMarkets in September 2000, Hayes asked Tatsis to teach him Greek slang and obscene language. According to Tatsis, Hayes would use these words in addressing him on many occasions and later began to comment on the sex habits of Greek philosophers. Tatsis contends that he found the use of this language and these comments offensive. Nevertheless, Tatsis never told Hayes to stop using the Greek swear words and admits that he used the words himself when talking with Hayes.
In May or June 2001, several months prior to Tatsis' discharge, Tatsis states that Hayes exhibited a bias toward foreign employees when he referred to two foreign engineers, Godwin Gonzales, a Senior Sofware Engineer of South Asian descent, and Dejan Sudjeric, a Principal Consultant of Serbian descent, as "foreigners" and stated that he "wanted to get rid of them" because they made six-figure salaries and did not deserve them. Tatsis admits, however, that Hayes never referred to him as a "foreigner." Furthermore, Hayes did not have supervisory authority over Gonzales or Sudjeric.
In addition, according to Tatsis, Choate, a non-supervisory co-worker, on one occasion, uttered the words "goddamn Greeks" to him while the two of them were alone and passed each other in a hallway.
Tatsis never mentioned or complained to anyone at FreeMarkets prior to his discharge about any of the statements or actions he attributes to Hayes and Choate.
III. Discussion
Summary judgment is required on an issue or a claim when "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986); Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). An issue is "material" only if the factual dispute "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248.
"Summary judgment procedure is properly regarded not as a disfavorable procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (internal quotation marks omitted). The parties have a duty to present evidence; neither statements of counsel in briefs nor speculative or conclusory allegations satisfy this duty. Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999). After the moving party has filed a properly supported motion, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The non-moving party must make a showing sufficient to establish the existence of each element essential to her case on which she will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.
A. National Origin Discrimination
Tatsis contends that Ariba discriminated against him on the basis of national origin in violation of Title VII, 42 U.S.C. § 2000e et seq., the PHRA, 43 P.S. § 951, et seq., and Section 1981, 42 U.S.C. § 1981. In order to survive summary judgment, on each of these claims Tatsis must "set forth specific facts showing that a genuine issue of material fact exists. . . . Speculation and conclusory allegations do not satisfy this duty." Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999) (citations omitted).
1. Section 1981
In order to state a claim under Section 1981, Tatsis must present evidence that he was subjected to intentional discrimination based on his race, "rather than solely on the place or nation of his origin." St. Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987); see also Bennun v. Rutgers State Univ., 941 F.2d 154, 172 (3d Cir. 1991). Tatsis testified that his race is Caucasian. He did not assert race as a basis for his EEOC charge and there is no allegation or evidence anywhere in the record that Tatsis was subjected to discrimination because he is Caucasian, as distinct from his Greek origin. Accordingly, Ariba is entitled to judgment as a matter of law on this claim.
2. Title VII and PHRA
Title VII makes it unlawful for an employer "to discriminate against any individual with respect to her compensation, terms, conditions, or privileges of employment because of race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). Tatsis has failed to present any direct evidence that the decision maker placed substantial negative reliance on national origin in reaching their decision to discharge him. Therefore, the Court will analyze the case under the McDonnell Douglas/Burdine/Hicks pretext framework. See Fuentes v. Perskie, 32 F.3d 759, 766 (3d Cir. 1994); Simpson v. Kay Jewelers, 142 F.3d 639, 644 (3d Cir. 1998); compare Glanzman v. Metropolitan Management Corp., 391 F.3d 506, 514 (3d Cir. 2004).
This case is clearly not a mixed motive case because Tatsis has pointed to no direct evidence that the "decisionmakers placed substantial negative reliance on [national origin] in reaching their decision." Price Waterhouse, 490 U.S. at 277. Price Waterhouse explicitly states that statements made by non-decisionmakers or by a decision maker unrelated to the decisional process itself are not direct evidence. Id.
To survive summary judgment on his Title VII claim and his PHRA claim, Tatsis must initially establish a prima facie case of national origin discrimination. See Simpson, 142 F.3d at 644. Once the plaintiff makes out a prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for its action. Id. If the defendant meets its burden of persuasion, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. a. Prima Facie Case
PHRA claims are analyzed under the same framework as Title VII claims. See Simpson v. Kay Jewelers, 142 F.3d 639, 644 n. 4 (3d Cir. 1998).
To establish a prima facie case of national origin discrimination, Tatsis must show that (1) he was a member of a protected class; (2) he was qualified for the job; and (3) he was discharged while other employees not in his protected class were retained. See Jalil v. Avdel Corp., 873 F.2d 701 (3d Cir. 1989). There is no dispute that Tatsis, a native of Greece, is a member of a protected class. In addition, taking the facts in the light most favorable to Tatsis, he was, at least initially, qualified for the job.
Ariba contends, however, that Tatsis has failed to satisfy the third element of his prima facie case. The Court agrees that Tatsis has failed to identify any evidence to show that comparator employees not in his protected class were retained while he was discharged. Tatsis' unsupported assertion that other unnamed employees were late with assignments or played video games at work, yet were not discharged, is simply too general and lacks context with respect to his discrimination claim. Consequently, the Court finds that Tatsis has failed to establish a prima facie case of national origin discrimination.
In addition, Tatsis has failed to show that Ariba's articulated reasons for his discharge were pretextual. Therefore, in the interest of judicial economy and for the benefit of the Court of Appeals should Tatsis seek review, the Court will complete its analysis under the McDonnell Douglas framework.
b. Legitimate Nondiscriminatory Reason
At step two, Ariba satisfies its burden of production if it introduces "evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision." Fuentes, 32 F.3d at 763. Ariba "need not prove that the tendered reason actually motivated its behavior, as throughout this burden-shifting paradigm the ultimate burden of proving intentional discrimination always rests with the plaintiff." Id. (emphasis in original). "[F]ederal courts are not arbitral boards ruling on the strength of `cause' for discharge. The question is not whether the employer made the best, or even a sound, business decision; it is whether the real reason is [discrimination]." Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997) (quoting Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996)).
Here, Ariba contends it terminated Tatsis because of his inability to work with others on team projects, documented performance deficiencies, missed deadlines, sub-standard work on the project to which he was assigned, and his confrontational nature. For purposes of summary judgment, the court finds that these reasons satisfy Ariba's burden of articulating a legitimate nondiscriminatory reason for Tatsis' dismissal. The burden of production now shifts back to Tatsis to show by a preponderance of the evidence that these reasons are pretextual.
c. Evidence of Pretext
To discredit the employer's articulated reasons, Tatsis must point to "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons [such] that a reasonable factfinder could rationally find them `unworthy of credence'" and hence infer that the proffered nondiscriminatory reason "did not actually motivate" the employer's action. Simpson, 142 F.3d at 644 (quoting Fuentes, 32 F.3d at 764-65).
"[T]he plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder 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)." Fuentes, 32 F.3d at 764 (internal citations omitted) (emphasis in original). Tatsis must show, not merely that Ariba's proffered reasons are wrong, but that they are so plainly wrong that they cannot have been the real reason for his discharge. Keller, 130 F.3d at 1109; Fuentes, 32 F.3d at 765. Accordingly, Tatsis cannot survive summary judgment by pointing to evidence that could convince a reasonable factfinder that he did as well as he could under the circumstances. See Keller, 130 F.3d at 1109.
Instead of pointing to record evidence to discredit Ariba's reasons, Tatsis appears to contend that summary judgment is simply not appropriate in national origin discrimination cases. This theory is clearly contrary to Third Circuit precedent. In addition, the only record evidence Tatsis identifies fails to establish that Ariba's articulated reasons for his discharge are pretextual. Accepting Tatsis' claim that Hayes made a remark about "foreigners," this remark occurred several months prior to Tatsis' discharge. More importantly, there is no evidence that suggests it was related in any way to his discharge. Accordingly, Hayes' statement is insufficient to satisfy Tatsis' burden of production as to pretext. Similarly, Tatsis' claim that Choate uttered the words "goddamn Greeks" on a single occasion fails to show pretext. Choate was a non-supervisory co-worker who had no involvement in Ariba's decision to discharge Tatsis.
The Court finds that Tatsis has failed to establish a prima facie case of national origin discrimination and has failed to show that Ariba's legitimate nondiscriminatory reasons for his discharge were pretextual. For these reasons, Ariba is entitled to judgment as a matter of law on Tatsis' Title VII and PHRA discrimination claims. C. Retaliation under Title VII or PHRA
To the extent Tatsis is attempting to assert a hostile work environment claim, this claim also fails. In order to establish a hostile work environment claim under Title VII, Tatsis must show that (1) he suffered intentional discrimination because of his national origin; (2) the discrimination was pervasive and regular; (3) it detrimentally affected him; (4) it would have detrimentally affected a reasonable person of the same protected class in his position; and (5) there is a basis for vicarious liability. See Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001). Tatsis' evidence falls short of showing that any alleged discrimination was pervasive and regular or that there is a basis for imposing vicarious liability on Ariba.
To the extent Tatsis is attempting to assert a retaliation claim under Title VII or the PHRA, this claim also fails as a matter of law. To establish a prima facie case of retaliation, Tatsis must demonstrate that: (1) he engaged in a protected activity under Title VII; (2) the employer took an adverse employment action after or contemporaneous with the protected activity; and (3) a causal link exists between the protected activity and the adverse action. Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1299 (3d Cir. 1997). A plaintiff's ultimate burden in a retaliation case is to convince the factfinder that retaliatory intent had a "determinative effect" on the employer's decision. See Woodson v. Scott Paper Co., 109 F.3d 913, 931-35 (3d Cir. 1997). Tatsis has failed to present evidence to prove any of the elements of this claim and it must be dismissed as a matter of law.
D. Breach of Covenant of Good Faith and Fair Dealing
Under Pennsylvania law, a covenant of good faith and fair dealing cannot exist in the absence of a contract. It is clear from the record that Plaintiff's employment with FreeMarkets was at-will. In an at-will employment situation, the covenant of good faith and fair dealing is not implicated. See Brachvogel v. Beverly Enterprises, Inc., 173 F. Supp.2d 329, 333 (E.D. Pa. 2001); Donahue v. Federal Exp. Corp., 753 A.2d 238, 243 (Pa.Super. 2000). Accordingly, Tatsis' claim for breach of the covenant of good faith and fair dealing fails as a matter of law.
IV. Conclusion
The Court concludes, considering the complete record before it, that Tatsis has failed to cite any evidence that other employees not in his protected class were retained while he was discharged. Moreover, there is insufficient evidence to permit a reasonable factfinder to conclude that Ariba acted with discriminatory intent with respect to Tatsis' discharge. Tatsis has not presented sufficient evidence to permit a factfinder either to disbelieve the company's proffered nondiscriminatory reasons or to conclude that discrimination based on national origin was the real reason for his discharge. Finally, Tatsis has not presented evidence to permit a factfinder to conclude that retaliation was a reason for his discharge, and his good faith and fair dealing claim fails as a matter of law.
An appropriate order follows.