Case 2:19-cv-05467-JMG Document 33 Filed 12/02/21 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`ERNEST NELSON,
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`Plaintiff,
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`VERIZON PENNSYLVANIA, LLC,
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`Defendant.
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`__________________________________________
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`Civil No. 2:19-cv-05467-JMG
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`MEMORANDUM OPINION
` December 1, 2021
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`GALLAGHER, J.
`Plaintiff Ernest Nelson was employed by Defendant Verizon Pennsylvania, LLC as a
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`service technician on a three-year, temp-to-hire contract. Verizon did not retain Plaintiff as a full-
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`time, permanent employee at the conclusion of his contract term because he did not meet the
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`requisite hiring criteria. Plaintiff claims that Verizon discriminated against him based on his race.
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`He sues Verizon for employment discrimination, alleging violations of Title VII of the Civil Rights
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`Act of 1964 (“Title VII”)1 and the Pennsylvania Human Relations Act (“PHRA”).2 Defendant
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`moves for summary judgment on all counts. For the reasons that follow, the Court will grant
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`Defendant’s motion for summary judgment.
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`I.
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`BACKGROUND
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`1.
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`Allegations
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`Plaintiff Ernest Nelson is an African American man. Compl. ¶ 2, ECF No. 1. Defendant
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`Verizon is a provider of telecommunications and internet services throughout Pennsylvania. Def.’s
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`42 U.S.C. § 2000e-2(a)(1).
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`43 P.S. § 955(a).
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`1
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` 2
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`Statement of Undisputed Facts (“DSOF”) ¶ 1, ECF No. 23-1. Defendant hired Plaintiff in May
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`2017 for an at-will position performing installation and maintenance for customers in Southeastern
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`Pennsylvania. DSOF ¶ 11; Pl.’s Opposition to Def.’s Undisputed Statement of Facts (“POSOF”)
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`¶ 11, ECF No. 24-2.
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`Plaintiff was hired for a three-year term and worked out of the Coatesville garage, where
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`he was one of four temporary service technicians. Compl. ¶¶ 12, 17, 21; DSOF ¶¶ 12, 17, 21. The
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`other three temporary technicians placed in that garage were Devin Brink, Robert Markley, and
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`Thomas Miller, all of whom are white. DSOF ¶ 21; POSOF ¶ 21; J.A. 0030. Plaintiff’s direct
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`supervisor was Christopher Al-Chokacky, a local manager who supervised a portion of the
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`Coatesville technicians. DSOF ¶¶ 18, 20; POSOF ¶¶ 18, 20. Plaintiff also had a second-line
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`manager, Matthew Freeman, who supervised numerous Verizon garages. DSOF ¶¶ 19, 20; POSOF
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`¶¶ 19, 20; J.A. 0030. Plaintiff emphasizes that he was one of only two African American
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`employees out of the 30-40 total employees at the Coatesville garage. Compl. ¶ 13; POSOF ¶ 22;
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`J.A. 0030.
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`In July 2018, Defendant and Plaintiff’s union, the Communication Workers of America
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`Union, agreed to transition certain temporary service technicians to permanent roles. DSOF ¶ 50;
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`POSOF ¶ 50. Their agreement (“The July Agreement”) provided that only temporary service
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`technicians with performance ratings of “Exceeds Expectations” or “Meets Expectations” were
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`eligible for permanent positions. DSOF ¶ 51; POSOF ¶ 51.3
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`Performance ratings were based on a number of objective metrics, including: (1) being on
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`time for assigned jobs (“Arrival Window”), (2) how long it took, on average, to complete each
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`Plaintiff was a member of the union and aware of The July Agreement. DSOF ¶¶ 50, 52;
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`POSOF ¶¶ 50, 52.
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`assigned job (“Hours Per Dispatch”), and (3) on average, how often jobs were completed on the
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`first dispatch versus needing repeat visits to rectify problems caused by the initial visit (“First
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`Dispatch Resolution”). DSOF ¶ 23; POSOF ¶ 23. In Plaintiff’s 2017 year-end review, he averaged
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`1.9 hours per dispatch, so he did not meet the Hours Per Dispatch goal of 1.65 hours. DSOF ¶ 29;
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`POSOF ¶ 29. He also failed to meet the Arrival Window and First Dispatch Resolution
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`benchmarks. J.A. 0140. As a result, his overall 2017 year-end performance rating was
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`“Improvement Needed.” DSOF ¶ 32, POSOF ¶ 32.
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`Defendant alleges that Plaintiff received a 2018 development plan, which reminded him of
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`the performance objectives he was expected to meet that year. DSOF ¶ 39. Defendant further
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`alleges that Plaintiff received verbal counseling to address his poor metrics and was advised that
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`if he did not improve, he could receive further discipline or termination. DSOF ¶¶ 42-43. To that
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`end, when Plaintiff again failed to meet his performance metrics in his 2018 mid-year review, he
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`was advised that he “still needs improvement.” DSOF ¶¶ 44-48; J.A 0146. While Plaintiff denies
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`receiving a 2018 mid-year review, POSOF ¶¶ 42-49, Defendant produced a copy of Plaintiff’s
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`2018 mid-year review paperwork, which shows that Plaintiff’s performance metrics fell below the
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`required threshold. J.A. 0146.
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`On September 4, 2018, Plaintiff’s employment was terminated. Compl. ¶ 15; POSOF ¶ 55.
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`Five other temporary service technicians, two white and two black, were also terminated. DSOF ¶
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`54; POSOF ¶ 54; J.A. 0166. All six were under Matthew Freeman’s supervision and were
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`ineligible for permanent hire under The July Agreement because their performance did not meet
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`or exceed expectations. DSOF ¶ 54; POSOF ¶ 54; J.A. 0166.
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`Plaintiff now alleges that he was treated less favorably than white employees and that
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`Defendant was hostile to his race. POSOF ¶ 10; Compl. ¶ 21. He asserts that he was denied an
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`assigned van and other equipment that white employees received, and that such disparate treatment
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`ultimately affected his performance and prompted his termination. POSOF ¶ 10; Pl. Dep. at 25-
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`27, 183. Defendant refutes these allegations and maintains that Plaintiff’s repeated failure to
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`achieve the required performance ratings made him ineligible for permanent hire. Def.’s Mot.
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`Summ. J. at 5, ECF No. 23-1.
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`2.
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`Procedural History
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`Plaintiff sued Defendant on November 21, 2019. ECF No. 1. On February 25, 2020, this
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`case was reassigned to this Court. ECF No. 11.
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`On August 19, 2020, Defendant moved for summary judgment on all counts. ECF No. 23.
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`Plaintiff responded to Defendant’s motion on September 2, 2020. ECF No. 24. Defendant filed a
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`reply brief in further support of its motion on September 10, 2020. ECF No. 27. The motion is now
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`ripe for decision.
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`II.
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`LEGAL STANDARD
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`“The court shall grant summary judgment if the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R.
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`CIV. P. 56(a). A material fact is one that “might affect the outcome of the suit under the governing
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`law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is genuine “if
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`the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at
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`248.
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`In deciding a motion for summary judgment, a court must “view the facts and draw
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`reasonable inferences in the light most favorable to the party opposing the summary judgment
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`motion.” Scott v. Harris, 550 U.S. 372, 378 (2007). “[A] district court may not make credibility
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`determinations or engage in any weighing of evidence.” Anderson, 477 U.S. at 255.
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`The movant bears the initial burden of showing the absence of a genuine issue of material
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`fact. “[A] party seeking summary judgment always bears the initial responsibility of informing the
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`district court of the basis for its motion, and identifying those portions of the pleadings,
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`depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
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`which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
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`Catrett, 477 U.S. 317, 323 (1986) (internal quotations omitted). If the moving party meets this
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`burden with “a properly supported motion for summary judgment . . . the adverse party must set
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`forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250.
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`“Unsupported assertions, conclusory allegations, or mere suspicions are insufficient to overcome
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`a motion for summary judgment.” Betts v. New Castle Youth Development Center, 621 F.3d 249,
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`252 (3d Cir. 2010).
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`If “reasonable minds could differ . . . [then] an issue of material fact remains . . . for the
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`trier of fact.” Young v. Martin, 801 F.3d 172, 177 (3d Cir. 2015). However, “[i]f the evidence is
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`merely colorable . . . or is not significantly probative . . . summary judgment may be granted.”
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`Anderson, 477 U.S. at 249-50.
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`III. DISCUSSION
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`Plaintiff brings a racial discrimination claim against Defendant, alleging violations of Title
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`VII and the PHRA. “Title VII and the Pennsylvania Human Relations Act . . . prohibit an employer
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`from engaging in race discrimination against an employee.” Boykins v. SEPTA, 722 F. App’x 148,
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`151-52 (3d Cir. 2018). “The proper analysis under Title VII and the Pennsylvania Human
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`Relations Act is identical, as Pennsylvania courts have construed the protections of the two acts
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`interchangeably.” Shamsuddi v. Classic Staffing Services, 509 F. Supp. 3d 327, 334 (E.D. Pa.
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`2020) (quoting Weston v. Pennsylvania, 251 F.3d 420, 425 n.3 (3d Cir. 2001)). Accordingly, this
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`Court will consider Plaintiff’s Title VII and PHRA claims together. See Atkinson v. LaFayette
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`College, 460 F.3d 447, 454 n.6 (3d Cir. 2006).
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`“Title VII racial discrimination claims are analyzed under the familiar burden-shifting
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`framework established in McDonnell Douglas.” Boykins, 722 F. App’x at 152; see McDonnell
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`Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The McDonnell Douglas burden-shifting
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`analysis proceeds in three parts:
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`The first part of the McDonnell Douglas test imposes a burden of production on the
`employee to establish a prima facie case of discrimination or retaliation, which, if
`successful, raises an inference of discrimination or retaliation . . . . After a prima
`facie case is established, the burden of production shifts to the employer to
`articulate a legitimate, nondiscriminatory reason for its action or decision . . . . If
`the employer successfully articulates one, the burden returns to the employee, who
`must show by a preponderance of the evidence that the employer’s proffered reason
`is pretextual.
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`Anderson v. Boeing Company, 694 F. App’x 84, 86 (3d Cir. 2017).
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`Under the McDonnell Douglas burden-shifting framework, a plaintiff alleging race
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`discrimination must first establish a prima facie case. “To establish a prima facie case of racial
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`discrimination, a plaintiff must show that he: (1) is a member of a protected class; (2) was qualified
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`for the position; (3) suffered an adverse employment action; and (4) the circumstances of the
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`adverse employment action give rise to an inference of discrimination.” Whitmore v. Nat’l R.R.
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`Passenger Corp., 510 F. Supp. 3d 295, 304 (E.D. Pa. 2020) (citing Jones v. Sch. Dist. of Phila.,
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`198 F.3d 403, 410-11 (3d Cir. 1999)). “The plaintiff’s burden at this stage is not onerous, as the
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`goal is to eliminate the most common nondiscriminatory reasons for the defendant’s actions; by
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`doing so, the prima facie case creates an inference that the defendant’s actions were
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`discriminatory.” Id. at 304 (internal quotations omitted). “To survive a motion for summary
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`judgment, the evidence must be sufficient to convince a reasonable factfinder to find all of the
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`elements of [the] prima facie case.” Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir.
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`2001) (internal quotations omitted).
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`Here, it is undisputed that Plaintiff can establish the first and third prongs of his prima facie
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`case of racial discrimination. Def.’s Mot. Summ. J. at 5. Plaintiff is a member of a protected class
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`– he is an African American male – and his termination was an adverse employment action. At
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`issue, then, are the second and fourth prongs of his prima facie case. Id. at 5. After careful
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`consideration of Defendant’s motion, the Court will enter summary judgment in Defendant’s
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`favor. Plaintiff did not meet the objective hiring criteria set forth by The July Agreement, so he
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`did not qualify for permanent employment and he cannot establish the second prong of his prima
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`facie case.
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`a.
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`Qualified for Position
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`Defendant contends that Plaintiff was not qualified for a permanent service technician
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`position because he did not achieve the necessary performance rating under The July Agreement.
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`Def.’s Mot. Summ. J. at 5. The Court agrees.
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`“A plaintiff is not qualified for a position, as required by the second prong – and [his] prima
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`facie case fails – if there is objective evidence [he] did not possess minimal job qualifications such
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`as ‘a license or a similar prerequisite.’” Cooper v. Thomas Jefferson Univ. Hosp., 743 F. App’x
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`499, 502 (3d Cir. 2018) (citing Makky v. Chertoff, 541 F.3d 205, 216 (3d Cir. 2008)). “[I]f there is
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`unchallenged objective evidence that [the plaintiff] did not possess the minimal qualifications for
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`the position plaintiff sought to obtain or retain, the plaintiff cannot establish a prima facie case of
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`discrimination.” Nappi v. Holland Christian Home Ass’n, 2015 WL 5023007, at *5 (D.N.J. Aug.
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`21, 2015).
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`A plaintiff’s failure to meet objective performance metrics set by the employer can show
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`that he is unqualified for his position. For example, in Stewart v. Progressive Business
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`Publications, Inc., a trainee was denied permanent employment after failing to meet the “.60 [sales
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`per hour] benchmark designated” by her employer. 2019 WL 95474, at *4 (E.D. Pa. Jan. 2, 2019).
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`Indeed, the employer’s training materials required all trainees to “achieve .60 sales per paid hour
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`or higher” to qualify for permanent employment. Id. at *4. While the plaintiff-trainee alleged that
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`her termination was the result of race discrimination, the Court rejected that claim. First, “[b]y
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`virtue of her inability to attain the minimum sales threshold,” the plaintiff was not qualified “for
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`promotion to a permanent marketing representative position.” Id. at *4-5. Second, the plaintiff
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`produced no evidence of “any other trainees . . . who were retained despite having also failed to
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`attain the required .60 sales per hour figure.” Id. at *4. As a result, the Court concluded that “there
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`is absolutely no evidence that Defendant treated other, non-African American employees more
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`favorably than Plaintiff.” Id.
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`Here, Plaintiff was not qualified for a position as a permanent technician because he failed
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`to meet Defendant’s requirements for employment. The July Agreement, like the training materials
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`in Stewart, set forth objective criteria to determine eligibility for employment. DSOF ¶¶ 51-52;
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`POSOF ¶¶ 51-52. Only technicians with job performance ratings of “Meets Expectations” or
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`“Exceeds Expectations” were eligible for permanent positions. And to receive those ratings,
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`technicians had to meet certain Arrival Window, Hours Per Dispatch, and First Dispatch
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`Resolution benchmarks. DSOF ¶ 23; POSOF ¶ 23.
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`Plaintiff did not meet any of those benchmarks per his 2017 year-end and 2018 mid-year
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`reviews. J.A. 0140, 0146-0147. He was neither meeting nor exceeding Defendant’s expectations,
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`so he was not qualified for permanent employment under the terms of The July Agreement. DSOF
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`¶ 29; POSOF ¶ 29; J.A. 0140, 0146-0147.
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`Plaintiff attempts to sidestep these metrics by describing them as unreliable. Pl.’s Opp’n at
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`13. He claims that he was not given an assigned van and other tools necessary to complete his
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`work. POSOF ¶¶ 10, 59; Pl.’s Opp’n at 5, 9, 14. Had he been provided with that equipment, the
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`argument goes, he would have met Defendant’s performance benchmarks. POSOF ¶ 59. But
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`beyond his own opinion, he does not present any evidence to suggest that his purported lack of a
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`van or certain tools precluded adequate job performance, let alone that he was denied any
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`equipment because of his race. “Unsupported assertions, conclusory allegations, or mere
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`suspicions are insufficient to overcome a motion for summary judgment,” yet that is all that
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`Plaintiff relies on in characterizing Defendant’s performance ratings as unreliable. Betts v. New
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`Castle Youth Development Center, 621 F.3d 249, 252 (3d Cir. 2010).
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`In sum, because Plaintiff did not achieve a rating of “Exceeds Expectations” or “Meets
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`Expectations,” he was not qualified for permanent hire under The July Agreement and the second
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`prong of his prima facie case fails.4
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`Like the plaintiff-trainee in Stewart, Plaintiff also fails to present evidence of any other
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`temporary employees who were retained despite having also failed to attain the required
`performance ratings. For that reason, Plaintiff cannot establish prong four of his prima facie case,
`either. “To prove the fourth prong—that the adverse action occurred under circumstances giving
`rise to an inference of discrimination—[a] [p]laintiff must establish some causal nexus between
`[his] membership in a protected class and the adverse employment action.” Washington v.
`Southeastern Pennsylvania Transp. Authority, 2021 WL 2649146, at *17 (E.D. Pa. June 28, 2021)
`(citing Jordon v. Pennsylvania Southeastern Transp. Authority, 2021 WL 4814414, at *8 (E.D.
`Pa. Oct. 10, 2012) (internal quotations omitted)).
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`“Common circumstances giving rise to an inference of unlawful discrimination include . .
`. the more favorable treatment of similarly situated colleagues outside of the relevant class.”
`Whitmore, 510 F. Supp. 3d at 305 (quoting Bullock v. Children’s Hosp. of Philadelphia, 71 F.
`Supp. 2d 482, 487 (E.D. Pa. 1999)). To that end, a plaintiff can establish the requisite casual nexus
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`IV. CONCLUSION
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`Plaintiff has failed to establish a prima facie case of racial discrimination in violation of
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`Title VII and the PHRA because he cannot show that he was qualified for permanent hire pursuant
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`to The July Agreement. Plaintiff cannot establish the second prong of his prima facie case, so we
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`need not analyze the remaining two steps of the McDonnell Douglas framework. For the foregoing
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`reasons, Defendant’s motion for summary judgment is granted. An appropriate order follows.
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`BY THE COURT:
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`/s/ John M. Gallagher
`JOHN M. GALLAGHER
`United States District Court Judge
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`“by showing . . . that similarly situated individuals were treated more favorably.” Washington,
`2021 WL 2649146, at *17 (citing Jordan, 2021 WL 4814414, at *8 (internal quotations omitted)).
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`Here, Plaintiff has not shown that Defendant treated any similarly situated employees more
`favorably. There is no evidence that Defendant retained any non-African American temporary
`technicians who did not meet The July Agreement’s criteria. And, as explained above, Plaintiff’s
`argument that he was denied certain equipment because of his race is based on nothing more than
`conjecture. See Ellison v. BHBC Nw. Psychiatric Hosp., 2013 WL 1482199, at *9 (E.D. Pa. Apr.
`9, 2013) (recognizing that “uncorroborated, subjective beliefs” are “patently insufficient to oppose
`a motion for summary judgment”). Overall, “there is absolutely no evidence that Defendant treated
`other, non-African American employees more favorably than Plaintiff.” Stewart, 2019 WL 95474,
`at *4.
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