CLAIBORNE v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NORMAN D. CLAIBORNE : CIVIL ACTION

Plaintiff, :

: No. 19-3011

v. :

:

SOUTHEASTERN PENNSYLVANIA :

TRANSPORTATION ATUHORITY, and :

TIMOTHY DORETY :

:

Defendants. :

MCHUGH, J. November 15, 2021

MEMORANDUM

This is an action alleging race discrimination and retaliation, brought by an African

American man who worked for the Southeastern Pennsylvania Transportation Authority

(“SEPTA”) for 10 years before being fired in 2015. Plaintiff Norman Claiborne claims he was not

given the same opportunities for promotion as white employees, suffered retaliation after he filed

a charge of discrimination, and was ultimately terminated for complaining of discrimination.

Plaintiff has been given wide latitude as to the scope of discovery and multiple extensions of time

to develop his claims. With the record now complete, he cannot prove that he was passed over for

any open positions. As to his termination, there is substantial evidence of repeated violations of

SEPTA’s attendance policy, leading to his termination and subsequent reinstatement three times

during his employment, including a reinstatement after violation of a last clear chance agreement

negotiated by Plaintiff’s union. Evidence of racial animus is minimal, and given Plaintiff’s history,

no reasonable jury could find his termination a pretext for racial discrimination. I must therefore

grant Defendants’ pending motion for summary judgment.

I. Factual and Procedural Background

Plaintiff employee, Norman D. Claiborne, brings claims for race discrimination and

retaliation under Title VII, 42 U.S.C. §2000e-2(a). Plaintiff also asserts claims under the

Pennsylvania Human Relations Act (PHRA), 43 PA. STAT. §§ 951 et seq and the Philadelphia

Fair Practices Ordinance (PFPO), Phila. Code §9-110 I et seq.1 See SAC ¶¶ 34, 71, 84, 89.

Mr. Claiborne began working as a Maintenance Custodian Driver for SEPTA in 2005. See

Claiborne Dep. 20:10-13, Nov. 10, 2021, ECF 52-1. He was assigned to the Frankford Depot,

where he cleaned SEPTA facilities, buses, and stations, and drove to various SEPTA locations in

and around Philadelphia. Id. at 20:10-13.

After working at SEPTA for about four years, Mr. Claiborne sought a higher ranked and

better paid job than that of a Maintenance Custodian Driver. Id. at 35:1-7. In 2009, he took and

passed written examinations to qualify for the position of General Helper/Fueler. Id. at 34:20-

35:7; 38:24-39:1. As both parties agree, between 2010 and 2014, there were no open Fueler

positions. See Def.’s Reply Mot. Summ. J., ECF 53, at 7-8; Claiborne Dep. 180:8-21. SEPTA

claims that there were no open positions because Tim Dorety, the Director of Frankford Depot’s

Maintenance Department and Plaintiff’s Supervisor, had been advised to decrease the headcount

at Frankford Depot because it was overstaffed. Def.’s Mot. Summ. J., ECF 47-1, at 8. Mr.

Claiborne has a different explanation. The gist of his account is that African American SEPTA

employees are regularly informed that no positions are available or denied positions that white

1 Claiborne originally brought claims under Section 1981 and Section 1983. Claiborne withdrew those

claims and therefore, I do not consider them. See Pl.’s Opp’n Def.’s Mot. Summ. J., ECF 52, at 23.

employees receive. See Claiborne Dep. 48:17-49:9; Marcel Gibson Dep. 27:17-28:12, Nov. 19,

2020, ECF 52-6. Claiborne remained at Frankford Depot in the position of Maintenance Custodian

Driver until his final termination in 2015.

Claiborne alleges that throughout his employment, SEPTA promoted a racially

discriminatory work environment. SAC ¶¶14-18.

a. Disciplinary Violations Between 2008 and 2012

Throughout his 10-year employment at SEPTA, Mr. Claiborne was a member of the

Transport Workers Union of Philadelphia, Local 234, which negotiates collective bargaining

agreements (CBAs) on behalf of union members and represents union members in disciplinary and

grievance proceedings. Claiborne Dep. 27:24-28:21; SAC ¶¶12, 13. The CBA’s attendance policy

includes a point system where employees receive points for every disciplinary infraction.2 See

Def.’s Mot. Summ.J. Appx. A at 0008, 0176-0178, ECF 47-1. When an employee receives 15

disciplinary points, SEPTA is required to provide that employee with notice, in writing, of the

points assessed against him. Id. at 0176-0178. When an employee receives 20 disciplinary points,

he is on “discipline status” and subject to progressive discipline.3 Id. The first time an employee

reaches or exceeds 20 points, he receives a one-day administrative suspension. Id. The second

time, he receives a five-day suspension. Id. The third time, he can be terminated. Id. The

imposition of progressive discipline reduces the employee’s point total by 10. Id. at 0179.

The parties do not dispute that throughout Mr. Claiborne’s employment as a Maintenance

Custodian Driver, he accrued disciplinary points for violating SEPTA policy. In 2008, a

2 The CBA provides a two-point reduction for each month that an employee does not violate the attendance

policy; after five months, the reduction is increased to three points for each month that the employee does

not violate the attendance policy. Def.’s Mot. Summ.J. Appx. A at 0008, 0176-0178.

3 Depending upon years of service, a higher number of points may be required before discipline is imposed.

maintenance manager found Claiborne sleeping on the job, and SEPTA recommended that he be

terminated. See Claiborne Dep. 82:1-18; Def.’s Mot. Summ. J. Appx. A at 0182. After negotiation

between SEPTA and the Union, who did not dispute the factual allegations, the parties entered into

a settlement whereby Claiborne was reinstated, and the intervening time between his discharge

and reinstatement served as a disciplinary suspension. Id. at 0183.

On three occasions between 2010 and 2012, Claiborne received written notice from SEPTA

that he had 15 points levied against him. On all three of these occasions, despite receiving

warnings from SEPTA, he then accrued more points and crossed the 20-point threshold. On the

first occasion, he received a one-day administrative suspension and his points were reduced by 10.

See Claiborne Dep. 96:1-5; Def.’s Mot. Summ. J. Appx. A at 0184, 0186-0187. On the second

occasion, he received a five-day administrative suspension and his attendance points were again

reduced by 10. See Claiborne Dep. 96:6-99:15; Def.’s Mot. Summ. J. Appx. A at 0184. On the

third occasion, Claiborne was subject to termination in keeping with SEPTA’s discipline policy,

as he had received 22 attendance points4 and had been suspended twice. See Claiborne Dep. 99:16-

103:15; Def.’s Mot. Summ. J. Appx. A at 0194.

The Union filed a grievance protesting Claiborne’s termination. Def.’s Mot. Summ. J.

Appx. A at 0194. There is no dispute that SEPTA correctly calculated Claiborne’s attendance

points. See Claiborne Dep. 104:1-105:23. After negotiation with the Union, SEPTA entered into

a Work Resumption “Last Chance Agreement” specifying that after a one-day suspension,

Claiborne would return to work and be placed on a one year probationary period, beginning on

January 10, 2013. Def.’s Mot. Summ. J. Appx. A at 0195-0196. According to the agreement,

4 Given that Claiborne had worked for SEPTA for more than five years, his threshold for termination had

increased to 22 points. This is in accordance with SEPTA’s policy that the 20-point threshold for discharge

is increased by two points for every five years of service. Def.’s Mot. Summ. J. Appx. A at 0176-0178.

should Claiborne be “charged with committing any infraction for which discipline is justified, he

[would] be subject to an immediate discharge.” Id. The document further specified that the last

step discipline would remain on his record for 730 days, and throughout his SEPTA career, he

could receive only one last chance. Id; Claiborne Dep. 106:12-15.

b. Claiborne’s Return Following Suspension

Per the terms of his Last Change Agreement, Claiborne returned to work after his one-day

suspension on March 27, 2013. Def.’s Mot. Summ. J. Appx. A at 0195-0196. For nearly a year,

there were no reported issues between Claiborne and SEPTA. Then, on February 13, 2014,

Claiborne was scheduled to begin work 7:30 am. That morning, he called the Frankford Depot to

report that he was having trouble getting to work because of a major snowstorm. He was informed

via telephone to “keep coming” to work. Claiborne Dep.108:2-109:18. There is no dispute that

after this call, Claiborne did not show up for work, nor did he again contact the Frankford Depot.

Id. More than two hours after Mr. Claiborne was scheduled to begin his shift, at 10:00 am, SEPTA

stopped running its services due to the weather. Id. at 114:5-8. The following day, Claiborne

received an Absence without Leave (AWOL) report and 10 disciplinary points for missing work,

bringing his total attendance points to 24 and triggering his termination. Id. at 106:22-24. As a

result, Claiborne was terminated. Id. at 121:2-5.

After Claiborne was terminated, the Union sought his reinstatement. Def.’s Mot. Summ.

J. Appx. A at 0197-0198. Among its arguments, the Union asserted that because Mr. Claiborne

had contacted the Maintenance Manager to report that he was having trouble getting to work due

to the extreme weather, he should not have been considered AWOL. Id. at 0197.

Following negotiation between the Union and SEPTA, the parties reached a settlement

agreement on September 15, 2014. Def.’s Mot. Summ. J. Appx. A at 0199. The terms included

that Mr. Claiborne would be reinstated, he would receive half back pay for the time during which

he was not employed, the AWOL and 10 disciplinary points would be removed from his record,

and he would receive a two-point attendance credit. Id. at 0199-2000; Claiborne Dep. 128:13-

131:3.

c. Claiborne’s Termination & Lawsuit

On October 6, 2014, Claiborne returned to work. Claiborne Dep. 131:18-21. When asked

whether he had subsequent attendance issues, he admitted, “[m]aybe I did.” Id. at 132:7-10. On

October 22, 2014, he received four disciplinary points for missing work, bringing up his total

disciplinary points from 14 to 18. Claiborne Dep. 132:13-133:4; Def.’s Mot. Summ. J. Appx. A

at 0203. On November 10, 2014, Claiborne again arrived late to work and received four

disciplinary points. Claiborne Dep. at 133:12-138:18; Def.’s Mot. Summ. J. Appx. A at 0206.

SEPTA moved to discharge his employment because he had reached the 22 point threshold.5

Def.’s Mot. Summ. J. Appx. A at 0206 – 0207. Although the Union initially grieved Mr.

Claiborne’s termination, the Union ultimately did not file for arbitration, and on February 11, 2015,

at a Labor Relations Step hearing, SEPTA found Mr. Claiborne’s termination to be proper.

Claiborne Dep. 141:10-24, Def.’s Mot. Summ. J. Appx. A at 0207-0208. Claiborne concedes that

5 Mr. Claiborne testified that he could not remember whether he arrived late to work on November 10,

2014. When provided with a copy of a document listing his disciplinary infraction and the disciplinary

points levied against him on that date, Mr. Claiborne testified that his signature was not on the document,

and therefore could not confirm whether he was late on the day in question. Although he does not

specifically admit that he was late on November 10, 2014, he does concede that SEPTA’s reason for

terminating him was due to the fact he accumulated too many attendance points. Claiborne Dep. 133:12-

138:18; Def.’s Mot. Summ. J. Appx. A at 0206.

the Union did not file for arbitration because it believed it may have lost. See Claiborne Dep. at

141:11-142:4.

After he received the AWOL violation, Plaintiff filed a complaint with the Pennsylvania

Human Rights Commission (PHRC) and the Equal Opportunity Commission in 2014, alleging

race discrimination. See Pl.’s Opp’n Def.’s Mot. Summ.J. ECF 52 at 7; Claiborne Dep. 146:17-

23, 147:13-23. Claiborne filed his first complaint with this court on February 12, 2020.

It should be noted that Plaintiff received three extensions of the discovery deadline to

develop his claims., and SEPTA was at one point ordered to produce notes of internal

investigations concerning allegations of discrimination by other employees. ECF 46.

II. Legal Standard

This motion is governed by the well-established standard for summary judgment set forth in

Fed. R. Civ. P. 56(a), as amplified by Celotex Corporation v. Catrett, 477 U.S. 317, 322-23 (1986).

III. Discussion

Because a reasonable juror could not find in Mr. Claiborne’s favor, Defendant’s motion for

summary judgment must be granted in full.

A. Claiborne’s Discrimination Claims

Title VII forbids an employer “to discharge any individual, or otherwise to discriminate

against any individual with respect to his compensation, terms, conditions or privileges of

employment, because of such individual’s race.” 42 U.S.C. §2000e-2(a)(1).

In the absence of direct evidence of discrimination, the McDonnell Douglas burden-

shifting analysis applies to claims brought under Title VII, the PHRA, and the PFPO. See

McDonell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); Jones v. SEPTA, 796 F.3d 323,

327 (3d Cir. 2015) (internal citations omitted) (applying the same framework to claims brought

under Title VII and the PHRA); Vandergrift v. City of Phila., 228 F. Supp. 3d 464, 486 n. 206

(E.D. Pa. 2017) (quoting Fagleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d. Cir. 2002))

(analyzing claims under the PFPO under the same framework as Title VII and PHRA claims).

Under McDonnell Douglas's three-step framework, (1) a plaintiff must first establish a

prima facie case of discrimination; (2) if he does, the employer must give a legitimate reason for

its conduct; and (3) if the employer meets its burden, the plaintiff must show the employer’s

proferred reason is pretextual. Jones, 796 F.3d at 325-26. I take each step-in turn with respect to

Claiborne’s claims that SEPTA discriminated against him on the basis of race by 1) failing to

promote him and 2) terminating him.

i. Failure to Promote Claim: Plaintiff Cannot Establish Prima Facie

Case

To establish a prima facie case of discrimination based on a failure to promote claim under

Title VII, a plaintiff must show that he (i) belongs to a racial minority; (ii) applied and was

qualified for a job for which the employer was seeking applicants; (iii) that, despite his

qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and

the employer continued to seek applicants from persons of complainant's qualifications. 42

U.S.C.A. § 2000e et seq., McDonell Douglas Corp., 411 U.S. at 802. The record does not support

a conclusion that there were open and available positions for which Mr. Claiborne applied,6 and

Plaintiff’s claim therefore fails.

Plaintiff alleges that he applied for a Fueler position in December 2013, which would have

offered a higher salary and title than his position as Maintenance Custodian driver.7 See SAC ¶¶22,

23. However, a review of the record makes clear that Mr. Claiborne did not in fact apply for an

open Fueler position, but instead signed up for a training opportunity.8 See Claiborne Dep. 59:4 –

60:5. Claiborne even concedes that “[b]etween ’10 and ’14, there were no open positions” for

Fueler, the position for which he was qualified. Id. at 180:8-21. As such, Mr. Claiborne does not

meet the second factor required to prove a prima facie case of discrimination – that he applied for

a job for which the employer was seeking applicants. Under McDonnell Douglas, an employee

must prove an open position. 411 at 802. See also Exum v. U.S. Olympic Comm, 389 F.3d 1130,

1137 (3d Cir. 2004) (“An employer’s failure to promote a plaintiff to a non-existent position is not

enough to support a presumption of intentional racial discrimination.”).

The record does raise a question as to how SEPTA approaches internal hiring, and

specifically whether employees had to apply for open positions to be promoted. Claiborne’s

6 Although Mr. Claiborne also alleges that he also applied for three open positions for 3rd Class Mechanic,

a position for which he was qualified, his PHRC Complaint and EEOC Complaint only discuss the Fueler

position, so my analysis is limited to that position. Clarkson v. SEPTA, 700 F. App’x 111, 114 (3d Cir.

2017).

7 Claiborne originally brought claims under Section 1981 and Section 1983. Claiborne withdrew those

claims and therefore, I do not consider them. See Pl.’s Opp’n Def.’s Mot. Summ. J. at 23.

8 In his complaint, Plaintiff Claiborne alleges that in December 2013, Defendant Dorety “posted a vacancy

for the position of Fueler and provided a sheet for applicants to sign if they were interested in the position”

but after Claiborne added his name to a list of white applicants, Dorety “advised him the position was no

longer available.” See SAC ¶¶22–25. In his deposition, however, Mr. Claiborne testified that he did not

sign up for a job posting but instead for a training opportunity. “[The posting was] a training opportunity”

that Dorety “snatched…down.” Claiborne Dep. 59:4 – 60:5.

testimony suggests that SEPTA did not have a formal application process for internal promotions.

Claiborne testified that he “just had to show [his] paperwork…they never told you to apply for any

job.” Claiborne Dep. 44:7-9. According to Claiborne, SEPTA employees would indicate their

interest in a position and after passing the requisite test, be promoted to that position. Id. at 44:9-

18. Yet, SEPTA’s seemingly unusual internal hiring processes do not save Claiborne’s argument.

It ultimately does not matter whether Mr. Claiborne had to formally apply for a promotion, because

the record clearly indicates that there were no open positions for which he was qualified to be

promoted.

The other evidence that Mr. Claiborne offers for his failure to promote claim is similarly

lacking. For instance, Mr. Claiborne attempts to establish race discrimination based on a failure

to promote by arguing that Rich Murphy, a more junior white employee, was promoted ahead of

him. By itself, this does not suffice. The Court of Appeals has cautioned against “selectively

choos[ing] a comparator,” holding (in the age discrimination context) that a “decision adversely

affecting an older employee does not become a discriminatory decision merely because one

younger employee is treated differently.” Simpson v. Kay Jewelers, 142 F.3d 639, 645-46 (3d Cir.

1998). More importantly, Mr. Claiborne fails to provide crucial details—such as the timeline for

Mr. Murphy’s promotion or his credentials—as a basis upon which a reasonable juror could

compare their treatment. See Claiborne Dep. 213:18-214:5.

And I cannot rely on the testimony of SEPTA employees who, in depositions, reported that

others had told them that African American employees were not promoted or were falsely

informed that no openings were available, because such testimony would be inadmissible hearsay.9

9 See Gibson Dep. 28:6-9 (“When it was time for these guys to get promoted, they were either denied or

told that there were no positions or openings available”); Tomlinson Dep. 15:2-6, March 30, 2021, ECF

52-4 (“I heard Norm complain about [not being promoted].”).

For purposes of summary judgment, a court may only consider hearsay statements that would be

capable of admission at trial. Stelwagon Mfg. Co. v. Tarmac Roofing Sys., 63 F.3d 1267, 1275 n.

17 (3d Cir. 1995). As such, I find no inference of discrimination with respect to the failure to

promote Mr. Claiborne to the position of Fueler.

ii. Termination Claim: Plaintiff Cannot Establish Pretext

a. Prima Facie Case

To establish a prima facie case of termination based on race discrimination, a plaintiff must

show that (1) he belongs to a protected class, (2) he is qualified for the position, (3) he is subject

to an adverse employment action despite being qualified, and (4) the circumstances support an

inference of discrimination. McDonnell Douglas Corp, 411 U.S. at 802-03, Sarullo v. U.S. Postal

Serv., 352 .3d 789, 797 (3d Cir. 2003). Here, I again apply the McDonnell Douglas framework to

the issue of termination. Because SEPTA concedes the first three elements (with the adverse

employment actions being Claiborne’s receipt of disciplinary points and his ultimate termination)

the only question for me is whether the record supports an inference of discrimination with respect

to Claiborne’s termination. I find that that some of the evidence supports an inference of

discrimination, albeit barely.

Claiborne broadly asserts that SEPTA promotes a racially discriminatory work

environment and that his termination was motivated by discrimination. See Pl.’s Opp’n Def.’s

Mot. Summ. J. at 24. To support this inference, he asserts a broad range of potentially

discriminatory conduct,10 including differential treatment in overtime assignments, the failure to

discipline an employee who used racial slurs, and the closure of a breakroom primarily used by

10 I discuss the evidence in a different order than that presented in Claiborne’s brief. Plaintiff’s counsel

fails to articulate what evidence supports an inference of discrimination and what evidence supports a

finding of pretext. As such, I discuss the evidence in the order I believe is relevant to each issue.

African American employees. Many of these examples rely on vague assertions and do not carry

substantial weight. But there is at least enough to support some inference of discrimination.

First, Mr. Claiborne claims that African American employees receive disproportionately

less overtime than white SEPTA employees. Id. at 19-22. The record includes the testimony of

an African American SEPTA employee, Marcel Gibson, who offers the names of five white

employees who consistently received overtime, while Tim Dorety denied overtime to Gibson and

other African American employees including Claiborne. See Gibson Dep. 20:10-23:23. Although

this raises an inference of discrimination, the evidence is thin. Claiborne makes virtually no

showing that the five white employees were “similarly situated” to Gibson. See id; Mandel v. M

& Q Packaging Corp., 706 F.3d 157, 170 (3d Cir. 2013). Moreover, although Gibson filed a

complaint with the state agency about race discrimination in overtime, his case was dismissed

because the agency found that he had in fact received 16 hours of overtime. See Gibson Dep.

25:15-20.

The remaining evidence in the record does not bolster Claiborne’s claim about

discrimination in overtime assignments. Claiborne argues that mechanics receive overtime to

clean the buses at night, a job that is typically performed by the cleaners. See Pl.’s Opp’n Def.’s

Mot. Summ. J. at 19-21. Yet Claiborne provides no statistics or evidence—besides some passing

references to white mechanics in the record11—to support the proposition that mechanics are

disproportionately white, while cleaners are disproportionately Black. And without this evidence,

assertions about the overtime performed by mechanics adds little value to Claiborne’s argument.

11 There are instances in the record where Claiborne indicates that at least some of the mechanics are white

and some of the cleaners are African American. For example, Marcel Gibson referenced “the cleaners and

African Americans” sitting together and the “white guys, the mechanics, and the HVAC specialists” sitting

together, which could be understood to mean that many cleaners are African American and many mechanics

and HVAC specialists are white. See Gibson Dep. 42:22-43:4.

But even more importantly, a close review of the record indicates that cleaners are first asked to

work overtime cleaning buses, and only if the cleaners are unavailable will mechanics be called

in, which is to be expected under a collective bargaining agreement.12 Simply put, the record

directly contravenes Claiborne’s claim.

Claiborne’s own testimony is similarly weak and fails to create a genuine issue of material

fact. At his deposition, he testified that he believes he was denied overtime, but was unable to

point to specific instances or examples where he was denied overtime.13 Plaintiff’s vague

perception about a culture of discrimination within SEPTA without more could not persuade a

reasonable juror that his termination was based on his race. Willis v. UPMC Children's Hosp. of

Pittsburgh, 808 F.3d 638, 646 (3d Cir. 2015) (a “passing reference to retirement age and

[Plaintiff’s] own belief that age discrimination occurred do not comprise sufficient evidence that

similarly situated, substantially younger employees were more favorably treated, and therefore do

not satisfy the fourth element of a prima facie case.”).

Next, Claiborne asserts that SEPTA fails to discipline and investigate egregious racist

conduct. For this proposition, he points to racist comments made by SEPTA employee Ron

12 To support this argument, Claiborne references the testimony of two SEPTA employees, Arthur Hatsfield

and Ernie Faults. See Pl.’s Opp’n Def.’s Mot. Summ. J. at 19-20. But Hatsfield testified that cleaners

receive priority in overtime assignments to clean buses, and Faults testified that he did not believe there

was discrimination in overtime assignments. See Hatsfield Dep. 16:7-17:7. Jan. 8, 2021, ECF 52-3. In

response to the question, “If the cleaner wants the overtime shift and the mechanic also wants the overtime

shift, and the shift is for cleaning buses, who gets the shift?” Hatsfield reported that “[t]he cleaner would

get the shift.” See Faults Dep. 16:7-17:7. Jan. 7, 2021, ECF 52-2. In response to the question, “Do you

have any knowledge of Caucasians receiving more overtime than African Americans at the Frankford

location depot?” Faults responded, “[n]o, I do not.”

13 Claiborne testified that he believed he “received less overtime than a bunch of the Caucasian gentlemen

that were [at SEPTA].” Claiborne Dep. 211:14-16. He supports this belief by testifying that each week a

SEPTA employee, who is unnamed, “would read off a sheet” the names of employees that received

overtime. Id. at 211:24-212:1. Claiborne could not provide the names of any employees that received

overtime or say if they were cleaners or mechanics. He offered only that that “all of the gentleman were

white.” Id. at 212:18-19.

DeGrandis, including on two occasions calling a Black employee a monkey, and on a separate

occasion, telling a Black employee that he was “sick of your black ass.” Claiborne Dep. 62:1-

75:6. Employees further testified that they do not believe that Mr. DeGrandis was disciplined,

and in fact, he was ultimately promoted. See Tomlinson Dep. 11:8-13:23; Gibson Dep. 34:3-37:9.

To be sure, this is racist and derogatory language. To the extent that SEPTA knew about and failed

to discipline DeGrandis, I find that this raises an inference of discrimination. Still, the evidence is

weak: although employees testified that they did not believe Mr. DeGrandis was disciplined, the

employees did not have personal knowledge about what, if any, discipline was imposed. See id.

Finally, Mr. Claiborne argues that Defendant Dorety’s decision to shut down a break room

at the Frankford Depot that was primarily used by African Americans raises an inference of

discrimination.14 The record contains testimony about a break room closure: some employees

testify that a break room primarily used by African Americans was shut down. At the time, SEPTA

offered an explanation that “they want[ed] everybody to eat downstairs,” and “an employee was

up [in the breakroom] sleeping” but the employees nonetheless perceived the decision to be one

motivated by racism. See Gibson Dep. 42:5- 44:10, Claiborne Dep. 158:3-164:22. I conclude that

there could be a slight inference of discrimination given that the only break room that was closed

was one used primarily by African Americans. Yet again, this evidence does not get Claiborne

far, as it is almost entirely based on the subjective beliefs of employees. See Tillman v.

Redevelopment Auth., No. Civ.A. 12–1505, 2013 WL 5594701, at *8 (E.D. Pa. Oct. 11, 2013) (“A

plaintiff's own unsubstantiated, subjective beliefs of suspicions alone would not suffice to

14 Claiborne discusses the closure of the breakroom with respect to his discriminatory termination claim.

See Pl.’s Opp’n Def.’s Mot. Summ. J. ECF 52 at 22-23. The record also includes testimony from Claiborne

that suggests that SEPTA may have been retaliating against African American employees by closing the

breakroom. See Claiborne Dep. 158:3-164:22. However, it is unclear from the briefing and the record

when the breakroom was actually closed. Mr. Gibson reports that it was closed in July 2014. Gibson Dep.

42:5- 44:10 and Mr. Claiborne reports that it was closed in July 2013. Claiborne Dep. 158:3.

persuade a rational trier of fact that age [or race] was a factor in the termination

decision.”); Howard v. Blalock Elec. Serv., Inc., 742 F.Supp.2d 681, 702 (W.D.Pa. 2010) (“An

inference of race-based discrimination cannot arise simply from an employee's subjective belief

that his or her race somehow influenced the challenged employment action.”).

On balance, despite the weakness of Plaintiff’s proof, I am willing to assume an inference

of discrimination, and now turn to whether SEPTA has offered a legitimate non-discriminatory

reason for Claiborne’s termination.

b. Legitimate Non-Discriminatory Reason

Once a plaintiff establishes a prima facie case, the burden shifts to the defendant employer

to articulate a legitimate and non-discriminatory reason for taking the adverse employment action.

Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994). This is a “relatively light burden.” Id.

By any measure, there is ample evidence in the record from which a factfinder could accept

SEPTA’s articulated reason for terminating Mr. Claiborne. Plaintiff repeatedly violated the no-

fault attendance policy negotiated by his Union and SEPTA. On October 23, 2008, Mr. Claiborne

was discharged for sleeping on the job, but the Union negotiated reinstatement. Claiborne Dep.

90:16-92:17. Between 2011 and 2012, Mr. Claiborne again—and on three occasions—received

disciplinary points and corresponding suspensions for violating the no-fault attendance policy.

See Claiborne Dep. 96:1-103:15. Still, he was reinstated. He was even reinstated despite a “last

clear chance agreement.” Claiborne Dep. 106:12-15. And there is evidence that yet again, in

October and November 2014, Mr. Claiborne violated the attendance policy. See Claiborne Dep.

132:13-133:4, 133:12-138:18. In short, substantial evidence suggests a non-discriminatory

termination.

c. Pretext for Intentional Discrimination

At this stage, “the burden shifts back to the employee, who, to defeat a motion for summary

judgment, must show that the employer’s reason was a pretext for intentional discrimination.” Doe

v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008). To do this, the plaintiff must “point

to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1)

disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious

discriminatory reason was more likely than not a motivating or determinative cause of the

employer’s action.” Fuentes, 32 F.3d at 764. On either count, Claiborne’s claims fail.

“To discredit the employer’s proffered reason, . . . the plaintiff cannot simply show that the

employer’s decision was wrong or mistaken . . . .” Id. at 765. Rather, the plaintiff “must show, not

merely that the employer’s proffered reason was wrong, but that it was so plainly wrong that it

cannot have been the employer’s real reason.” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101,

1109 (3d Cir. 1997). Stated differently, Plaintiff must identify “such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proferred legitimate reasons for

its action that a reasonable factfinder could rationally find them ‘unworthy of credence.”’ Fuentes,

32 F.3d at 765 (quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 531 (3d Cir.

1992)).

To prove that SEPTA’s reason for firing him was a pretext for intentional discrimination,

Mr. Claiborne asserts that SEPTA regularly uses its point system to discipline African American

employees but not white employees. SAC ¶¶43-46. He provides two examples to support this

assertion.

First, he argues that on February 13, 2014, white and Black employees alike both called

off from work during a major snowstorm but only Black employees faced discipline in the form

of an Absence Without Leave (AWOL) writeup15 and the receipt of disciplinary points.16 SAC

¶¶47-57. A plaintiff may indeed show pretext by demonstrating that “the employer has previously

discriminated against other persons within the plaintiff's protected class, or that the employer has

treated more favorably similarly situated persons not within the protected class.” Simpson, 142

F.3d at 645 (citing Fuentes, 32 F.3d at 765). But Mr. Claiborne has not done this.

At most, Claiborne has alleged his belief that white people were not disciplined without

citing any evidence.17 He seeks to bolster these allegations by providing the testimony of two

African American SEPTA employees who agreed that white employees were not disciplined for

15 Claiborne’s argument about his February 2014 AWOL could also be used to support a finding of an

inference of discrimination and therefore could be viewed as part of the prima facie case. In line with how

Claiborne organizes his argument, I consider it here.

16 I review the record related to the February 13, 2014 snowstorm and related disciplinary points for the

sole purpose of determining whether SEPTA’s use of disciplinary points is a pretext for racial

discrimination. I do not review the record to make a hypothetical finding about what would have happened

had Claiborne not received the 2014 AWOL and disciplinary points. Claiborne asserts that “[b]ut for the

racially motivated February 2014 AWOL” his disciplinary points would have been reduced each month

and he would have remained employed at SEPTA throughout 2014. In support of his argument, Claiborne

points to SEPTA’s disciplinary policy that reduces employees’ disciplinary points each month an employee

has no incident of “non-attendance.” See Pl.’s Opp’n Def.’s Mot. Summ. J., ECF 52 at 11. I reject this

argument because Claiborne’s Union entered into an agreement for which the disciplinary points from

February 2014 AWOL were removed, and he was reinstated following termination. See Pl.’s Sur-Reply

Opp’n Def’s Mot. Summ. J., ECF 54 at 4. Further, Claiborne’s argument relies on the assumption that

he would have no incidents of “non-attendance” and therefore would be eligible for reductions of his

disciplinary points each month.

17 The second amended complaint reads: “Defendants imposed ten (10) points against Plaintiff and seven

(7) other African American employees who called out from work on February 13, 2014. Even though

Caucasian employees called out during the February 13th snowstorm, Defendants never issued them an

AWOL or otherwise imposed points against them.” SAC ¶¶ 54, 55.

missing work during the snowstorm. See Hatsfield Dep. 33:2-17; Faults Dep. 30:11-20. But a

review of the record once again reveals that these employees have no personal knowledge on the

matter.18 As such, this testimony is also inadmissible hearsay, which I may not consider.

Stelwagon., 63 F.3d at 1275 n. 17.

Even if I could consider this hearsay evidence, Claiborne has failed to demonstrate that the

white employees who were treated more favorably were “similarly situated” to him. A

determination of whether employees are similarly situated takes into account the employees’ job

titles and responsibilities, the relevant supervisors, and the type of misconduct engaged in.

Mandel., 706 F.3d at 170; Wilcher v. Postmaster General, 441 Fed. Appx. 879, 882 (3d Cir. 2011)

(non-precedential). Here, Claiborne made no showing that the white employees had the same job

title, the same supervisors, and engaged in the same kind of misconduct, i.e. failing to communicate

with SEPTA staff and disobeying a specific instruction to “keep coming” to work.

Second, he refers to SEPTA’s failure to terminate Carl Sorenson, a white employee who

received 35 disciplinary points, as evidence that the disciplinary point system is used to punish

African American employees but not white employees. See Pl.’s Opp’n Def.’s Mot. Summ. J. at

12, Claiborne Dep. 176:20-177:14. But as discussed above, the Court of Appeals has cautioned

against “selectively choos[ing] a comparator.” Simpson, 142 F.3d at 645-46. Further, to the extent

that Claiborne relies on Sorenson, he has failed to make any showing that Mr. Sorenson was

“similarly situated” to him—that is, had been employed for the same number of years and had

18 Defendant incorrectly asserts that the employees who testified “could point to no specific non-African

American who was treated more favorably than African American employees.” See Def.’s Reply Mot.

Summ. J. at 6. This is not a fair characterization. At their depositions, Mr. Claiborne, Mr. Hartsfield and

Mr. Faults each were able to identify white employees who they believe missed work on the day of the

storm but were not disciplined. See Claiborne Dep. 116:3-120:14, Hatsfield Dep. 33:2-17; Faults Dep.

30:11-20. That said, these witnesses all lacked personal knowledge of the white employees’ disciplinary

histories and there is no other evidence in the record to corroborate this disparate disciplinary treatment.

already received a “last chance agreement.” Claiborne Dep. 176:20-177:14. Key to the question

of whether employees are similarly situated is whether there are any “differentiating or mitigating

circumstances as would distinguish…the employer’s treatment of them.” McCullers v. Napolitano,

427 F. App’x 190, 195 (3d Cir. 2011) (non-precedential) (quoting Radue v. Kimberly-Clark Cop.,

219 F.3d 612, 617-18 (7th Cr. 2000)) (overruled on other grounds). And the Defendant has in fact

demonstrated that differentiating circumstances do exist: Mr. Sorenson had been employed at

SEPTA for longer than Mr. Claiborne and thus had to reach a higher disciplinary point threshold

to be eligible for discharge.19 See Def.’s Sur-Sur-Reply Mot. Summ. J., ECF 55.

For the reasons above, I find no evidence of pretext, and Mr. Claiborne’s discrimination

claims fail as a matter of law.

B. Claiborne’s Retaliation Claim

Plaintiff also asserts that he was retaliated against for filing a race discrimination complaint

with the Philadelphia Human Rights Commission in 2014 following receipt of the “AWOL”

report. See Pl.’s Opp’n Def.’s Mot. Summ. J. at 6-7. Title VII makes it unlawful “for an employer

to discriminate against any of his employees or applicants for employment . . . because he has

opposed any practice made an unlawful employment practice by [Title VII], or because he has

made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or

hearing under [Title VII].” 42 U.S.C. § 2000e-3.

To state a prima facie case of retaliation, a plaintiff must show that (1) he engaged in protected

activity; (2) his employer took adverse action against him and (3) there is a causal link between

the protected activity and the adverse action. Charlton v. Paramus Bd. Of Ed., 25 F.3d 194, 201

19 Sorenson’s higher threshold is due to SEPTA’s policy that the 20-point threshold for discharge is

increased by two points for every five years of service. See Def.’s Mot. Summ.J. Appx. A at 0176.

(3d Cir. 1994). Here, Claiborne unquestionably engaged in a protected activity by filing a

complaint with the PHRC and the EEOC. And he certainly suffered an adverse employment action

when he received discipline points on October 22, 2014 and on November 10, 2014, which

ultimately resulted in his termination. The question before me is whether he was terminated

because he engaged in protected activity.20

A plaintiff may rely on a range of evidence to demonstrate the causal link between the protected

activity and the adverse action including by showing temporal proximity that is “unusually

suggestive of a retaliatory motive.” Shaner v. Synthes, 204 F.3d 494, 505 (3d Cir. 2000).

Mr. Claiborne claims that the temporal proximity between his filing of a PHRC report and

the discipline charges he received in October and November 2014 was “unusually suggestive” of

a retaliatory motive. See Pl.’s Opp’n Def.’s Mot. Summ. J. at 6-7. But this interpretation of the

record is strained. Plaintiff filed a PHRC charge on September 9, 2014, during a period in which

he was not employed at SEPTA. He was then reinstated by SEPTA on October 6, 2014, which

begs the question: why would SEPTA reinstate him if it was motivated to retaliate? He was

disciplined on October 22, 2014 and November 10, 2014, and as discussed above, at least as to the

October incident he does not dispute his lateness. Unlike in Jalil v. Avdel Corp., where the court

found that it was unusually suggestive to terminate an employee two days after he filed an EEOC

charge, in this case there was a gap of two months between the PHRC charge and the termination,

during which time Claiborne was actually reinstated, and incurred more disciplinary points. 873

20“[A]t the prima facie stage, a plaintiff need only proffer evidence sufficient to raise the inference that her

engagement in a protected activity was the likely reason for the adverse employment action, not the but-for

reason.” Carvalho-Grevious v. Delaware State University, 851 F.3d 249, 253 (3d Cir. 2017).

F.32 701, 708 (3d Cir. 1989). No reasonable juror could find temporal proximity supporting an

inference of retaliatory animus.

In further support of his retaliation argument, Plaintiff relies on the testimony of other

African American employees who report experiencing retaliatory discipline after complaining

about racism. See Gibson Dep, 49:3-50:15; Tomlinson Dep. 26:21-28:12, 29:3-7, 29:13-30:24.

The value of such “me too” evidence depends upon “how closely related the evidence is to the

plaintiff’s circumstances and theory of the case.” Mandel, 706 F.3d at 167-68 (citing Sprint/United

Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008)). See also Barnett, 35 F.Supp.3d at 22.

(“Among the factors relevant to the determination as to whether or not to allow the introduction

of ‘me too’ evidence in employment discrimination cases are whether the alleged discriminatory

behavior by the employer is close in time to the events at issue in this case; whether the same

decision-makers were involved; whether the witness and the plaintiff were treated in a similar

manner; and whether the witness and the plaintiff were otherwise similarly situated.”).

As an initial matter, I reject Defendants’ argument that the experience of other SEPTA

employees has no relevance simply because they are still employed at SEPTA. An employee can

experience discrimination and retaliation and simply decide to “tough it out.” Further, an

employee may experience discrimination and retaliation yet not be fired because they have not

reached the point threshold required for termination.

Nonetheless, testimony by other employees here is vague and couched in generalities. Mr.

Claiborne fails to show that any retaliation faced by other SEPTA employees parallels his situation.

Claiborne’s record was replete with violations and multiple reinstatements, and because of what

must have been exemplary union advocacy, his employment continued. Given the totality of the

record, and in particular the strong objective basis for termination, a jury could not find a retaliatory

discharge.

C. PHRA and PFPO Claims

Claiborne’s claims under the PHRA and the PFPO similarly fail because, as discussed

above, they are reviewed under the same burden-shifting analysis brought under Title VII. See

McDonell Douglas Corp., 411 U.S. at 802-03; Jones v. SEPTA, 796 F.3d 323, 327 (3d Cir. 2015)

(internal citations omitted); Vandergrift v. City of Phila., 228 F. Supp. 3d 464, 486 n. 206 (E.D.

Pa. 2017) (quoting Fagleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d. Cir. 2002)).

VI. Conclusion

SEPTA’s Motion for Summary Judgment will be granted and Claiborne’s discrimination and

retaliation claims will be dismissed. An appropriate order follows.

/s/Gerald Austin McHugh

United States District Judge