The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ADAIRA SMITH,
Plaintiff,
v. CIVIL ACTION NO. 23-701
HUMPHRYS – COVERSPORTS, et al.
Defendants.
MEMORANDUM OPINION
Rufe, J. July 26, 2024
Plaintiff Adaira Smith filed suit against Defendants Humphrys – CoverSports,
D.C. Humphrys Co., and John Does 1–5 and 6–10 (collectively, “DCH”), asserting claims of
employment discrimination on the basis of race, color and sex, and retaliation for engaging in
protected activity. The Complaint alleged twenty-one counts pursuant to Title VII of the Civil
Rights Act of 1964,1 the Philadelphia Fair Practices Ordinance (“PFPO”),2 and the Pennsylvania
Human Relations Act (“PHRA”).3 Defendants have moved for summary judgment on all claims;
in response, Plaintiff has withdrawn all claims except those of discrimination on the basis of race
under Title VII, the PFPO, and PHRA.4 The Court considers the motion for summary judgment
as to these remaining claims.
1 42 U.S.C. § 200e et seq.
2 Phila. Code §9-1101 et seq.
3 43 P.S. § 951 et seq.
4 See Pl.’s Resp. Opp’n. [Doc. No. 21] at 1. The remaining claims are asserted as Counts I, VIII, and XV of
Plaintiff’s Complaint. See Compl. [Doc. No. 1].
I. BACKGROUND
A. Undisputed Facts
Plaintiff Adaira Smith is an African American woman.5 Smith was hired by DCH, a
manufacturer and wholesaler of canvas and industrial protective covers, as a Utility Employee6
on September 20, 2021.7 Although never clearly defined, a Utility Employee may take on many
job responsibilities, including filing documents and occasional housekeeping.8
Upon being hired, Smith was placed on a 90-day probation period.9 She was assigned to
work with Merlen Wright, DCH’s Accounts Payable Supervisor.10 Wright was Plaintiff’s direct
supervisor throughout her employment, but Plaintiff would also occasionally assist Ronald
Nissenbaum, the owner and CEO of DCH, and Michael Mansor, DCH’s Human Resources and
Payroll Manager.11 During the probationary period, Plaintiff worked out of Wright’s office and
did not have her own computer.12
Smith received a fifty-cent wage increase on October 18, 2021 and then again on
November 8, 2021.13 Based on Wright’s recommendation, Smith was placed in the permanent
5 Joint Statement of Stipulated Material Facts, Ex. A [Doc. No. 19-1] ¶ 1.
6 Id. ¶ 2. The parties’ Joint Statement of Stipulated Material Facts state that: (1) Plaintiff testified that she was hired
as a Temporary Office Assistant and (2) Plaintiff’s letter provides that she was hired for the position of Utility
Employee. See id. ¶ ¶ 20, 21.
7 Id. ¶ 19.
8 In his deposition, Michael Mansor stated that a Utility Employee is “used for what we need them for at the
moment” and that Plaintiff would “often assist [Ms. Wright], sometimes help [Mr. Mansor] with filing, but also take
over some of [their] housekeeping or janitorial duties as assigned.” See Mansor Dep., Ex. E [Doc. No. 21] at 66.
However, he also testified that “we move you where your skillset fits you the best” and that some utility employees
are “janitorial and some production or some janitorial, some office.” See id at 65–66.
9 Joint Statement of Stipulated Material Facts, Ex. A [Doc. No. 19-1] ¶ 24.
10 Id. ¶ ¶ 25, 26.
11 Id. ¶ ¶ 3, 8, 27, 29.
12 Id. ¶ ¶ 31, 32.
13 Id. ¶ ¶ 35, 36.
position of Assistant to Accounts Payable.14 On February 18, 2022, Wright and Mansor provided
Plaintiff with an annual evaluation of “satisfactory/good.”15 Mansor, Wright, and Smith met to
discuss the evaluation, at which point they discussed Smith expanding her job knowledge.16 She
received a 2% salary increase on March 7, 2022.17 At the end of March 2022, Shana Brenner,
DCH’s Director of Sales and Marketing, spoke to Smith to see if she would be interested in a
sales position.18 Nissenbaum recommended Smith because he thought she was “sharp” and
would be a good fit for sales.19 Brenner did not hire Smith for a sales position.
During the first half of Smith’s employment, she and Wright developed a friendship
outside of work.20 Plaintiff later expressed to Wright that she did not want to have a friendship
due to “some uncomfortable experiences they had outside of work.”21 Plaintiff sent Wright the
following text message:
There are a lot of things you do and say only to me that is unprofessional, and it’s
beginning to get in the way of us doing our job. I don’t want to have to ask for a
meeting with Paul and Mike about [sic]. That’s why I’m sending this text as a
courtesy. I don’t want to work in a hostile environment. I just want to do my job
and go home, but your behavior is making that really difficult. I’d appreciate if
you would not purposely do things that make my job harder.22
14 Id. ¶ 37. Although the Joint Statement of Stipulated Material Facts does not provide a date for this promotion, the
February 2022 review of Ms. Smith identified her position as Assistant to Accounts Payable. See Mansor Dep., Ex.
2 [Doc. No. 22-6] at 72–73.
15 Joint Statement of Stipulated Material Facts, Ex. A [Doc. No. 19-1] ¶ ¶ 44, 45. Defendants also produced two
additional evaluations, which they contend were shown to Plaintiff, but which Plaintiff states were never provided to
her. See Employee 60 Day Probation Evaluation, Ex. I [Doc. No. 21-3], Employee 90 Day Evaluation Accounts
Payable Assistant, Ex. J [Doc. No. 21-3]; Smith Dep., Ex. B [Doc. No. 21-3] at 99–100, 104.
16 Joint Statement of Stipulated Material Facts, Ex. A [Doc. No. 19-1] ¶ 46.
17 Id. ¶ 44.
18 Id. ¶ 66.
19 Id. ¶ 67.
20 Id. ¶ 47.
21 Id. ¶ 48.
22 Id. ¶ 51.
Wright responded:
Ask for the meeting, if you feel it’s necessary. I have not said anything out of line
to you, nor treated you in an unprofessional manner. I would not want you to feel
uncomfortable so that sounds like a good idea. Email all of us with the time and
date. I will bring my records. For the first time, I will voice out my concern.23
On April 13, 2022, Plaintiff emailed Paul Boyle, who oversaw the Human Resources
Department, and Nissenbaum, copying Mansor and Wright, to request a meeting, writing:
Good afternoon, everyone. I am sending this email regarding to set up a meeting
with all recipients on this thread. The objection [sic] of this meeting is to discuss
the current work environment. I am happy to be a part of this wonderful team and
it’s a pleasure to work for the company, however, it is becoming increasingly
difficult to perform my work tasks due to the lack of conduct. I trust your
judgment and I am confident that you will find a satisfying solution to help
maintain a healthy and professional work environment.24
On April 14, 2022, a meeting was held between Smith, Mansor, Boyle, and Wright.25 Plaintiff
has never alleged that Wright racially discriminated against her.26
On May 3, 2022, seven months after she was hired, Plaintiff was terminated from her
employment during a meeting with Mansor and Boyle. Defendants contend that Plaintiff was
terminated because she created tension with her supervisor, made mistakes, and was not the
“right fit” for the company culture.27
Before terminating Smith, Defendants did not follow their own progressive discipline
policy as outlined in the Employee Handbook. Defendants’ progressive discipline policy follows
a four-tier discipline system: a verbal warning, a written warning, a final warning, and lastly
23 Id. ¶ 52.
24 Id. ¶ ¶ 53, 54.
25 Id. ¶ ¶ 57, 58.
26 Id. ¶ ¶ 56, 60.
27 See Defs.’ Mot. Summ. J. [Doc. No. 19] at 2–3.
termination.28 This procedure applies to all non-terminable offenses. Terminable offenses are
defined as “certain behaviors or acts . . . likely to result in immediate termination of employment
without use of progressive discipline.”29 The Handbook lists examples of terminable offenses,
including possession of weapons or illegal drugs, theft of company property, and vandalism.30
Creating tension with a supervisor, work mistakes, and “not being the right fit” were not listed as
examples of “terminable offenses.”31Although the Employee Handbook states that DCH will
adhere to this policy, it also provides that “[t]he Company reserves the right to terminate
employment at any time for any reason, without notice or warning, and without resort to any
steps outlined in this policy.”32 Despite this, Mansor could not recall DCH ever terminating an
employee for the reasons Smith was terminated without following the progressive discipline
procedure.33
Plaintiff filed an initial Charge of Discrimination with the Pennsylvania Human Relations
Commission on May 26, 2022,34 a secondary Charge of Discrimination with the Equal
Employment Opportunity Commission on July 25, 2022,35 and a third Charge of Discrimination
on August 26, 2022 with the Philadelphia Commission on Human Relations.36 The EEOC issued
a Right to Sue Notice on December 14, 2022, and Smith timely filed suit.37
28 Employee Handbook, Ex. D [Doc. No. 21-3] at 23–24.
29 Id. at 22–23.
30 Id.
31 See id.
32 Id at 24.
33 Mansor Dep., Ex. E [Doc. No. 21-3] at 128.
34 Joint Statement of Stipulated Material Facts, Ex. A [Doc. No. 19-1] ¶ 73.
35 Id. ¶ 74.
36 Id. ¶ 75.
37 Compl., Ex. A [Doc. No. 1].
B. Disputed Facts
The parties present conflicting accounts about Mansor’s behavior. Plaintiff’s testimony,
which Defendants largely contest, describes multiple incidents of racial discrimination. Plaintiff
testified that Mansor frequently asked her questions about her hair, e.g., “Is your hair real?”;
“Why do Black women pat their hair?”; “Why are there lace fronts?”; and “Why are there
edges?”38
Smith testified in her deposition that Mansor would require her to perform janitorial
duties, even though this was not a part of her job description.39 In addition, Plaintiff recounted
witnessing Mansor “slam the door” in the face of Black warehouse workers and pretend that he
didn’t understand workers who were from Africa.40 Plaintiff further testified that after she
requested a new office chair to replace her broken one, Mansor told Wright that Smith wouldn’t
get a new one because she “wasn’t going to be there long.”41 According to Plaintiff, Mansor told
Wright that he did not want to promote Smith to a permanent Accounts Payable position because
he did not want to hire another girl like Plaintiff’s predecessor, who was also a Black woman.42
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted if there
is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of
law.43 A fact is “material” if resolving the dispute over the fact “might affect the outcome of the
38 See Smith Dep., Ex. B [Doc. No. 21-3] at 83–95.
39 See id. at 283–85.
40 See id. at 259–61.
41 See id. at 117–118.
42 See id. at 257.
43 See Fed. R. Civ. P. 56(a).
suit under the governing [substantive] law.”44 A dispute is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.”45
A court “must view the facts in the light most favorable to the non-moving party,” and
make every reasonable inference in that party’s favor.46 Further, a court may not weigh the
evidence or make credibility determinations.47 Nevertheless, the party opposing summary
judgment must support each essential element of the opposition with concrete evidence in the
record.48 “If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.”49
III. DISCUSSION
In the absence of direct evidence of discrimination, the Court applies the burden-shifting
framework established in McDonnell Douglas Corp. v. Green for racial discrimination claims.50
First, the employee must establish a prima facie case of discrimination to demonstrate that:
(1) Plaintiff is a member of a protected class; (2) Plaintiff suffered an adverse employment
action; (3) Plaintiff was qualified for her position; and (4) Plaintiff was terminated under
circumstances that can support an inference of intentional discrimination.51
44 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
45 Id.
46 Hugh v. Butler Cnty. Fam. YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citation omitted).
47 Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998).
48 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
49 Anderson, 477 U.S. at 249–50 (citations omitted).
50 See, e.g., Martinez v. UPMC Susquehanna, 986 F.3d 261, 265 (3d Cir. 2021) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802–04 (1973)). The legal framework for employment discrimination under Title VII, the
PFPO, and the PHRA are the same. See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996).
51 See Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003).
Next, “the burden shifts to the employer to ‘articulate some legitimate, nondiscriminatory
reason’” for the adverse action against the employee.52 Lastly, the employee must then
demonstrate that the proffered reason was merely a pretext for unlawful discrimination.53 The
burden-shifting framework is not meant to be rigid and mechanical, but instead is an “orderly
way to evaluate the evidence in light of common experience as it bears on the critical question of
discrimination.”54
The first three elements of Plaintiff’s prima facie case are uncontested for purposes of
summary judgment: Smith is a member of a protected class, she was qualified for the position,
and her termination constituted an adverse employment action. Defendants argue that Plaintiff
has failed to establish the fourth element by failing to identify people outside of her protected
class who were treated more favorably.55 However, the requirements of a prima facie case are
flexible and the “fourth element must be relaxed in certain circumstances . . . .”56 Plaintiff is “not
required to plead comparator evidence,” but instead can support an inference of discrimination in
“a number of ways, including . . . evidence of similar racial discrimination of other employees,
or direct evidence of discrimination from statements or actions by her supervisors suggesting
racial animus.”57
Plaintiff has provided sufficient evidence to support an inference that Defendants racially
discriminated against her. Plaintiff testified that Mansor frequently asked her about her hair,
52 Id.
53 See McDonnell Douglas, 411 U.S. at 802–04; Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000) (citations omitted).
54 Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990) (internal quotation marks and citation omitted).
55 Defs.’ Mot. Summ. J. [Doc. No. 19] at 2.
56 Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 357 (3d Cir. 1999) (citation omitted).
57 Golod v. Bank of Am. Corp., 403 F. App’x. 699, 702 n.2 (3d Cir. 2010) (citation omitted).
including numerous questions about whether her hair was “real,” “why do Black women pat their
hair?,” “why are there lace fronts?,” and “why are there edges?”58 While such questions, viewed
in isolation, might be construed as “[s]tray remarks . . . unrelated to the decision process,”59
Plaintiff also testified that she observed Mansor engaging in derogatory behavior toward Black
employees by slamming his door in their faces and mocking Black employees from Africa by
pretending he could not understand them.60 Lastly, in her deposition, Smith testified that Mansor
required her to do janitorial duties, which were not part of her job description.61 Viewing the
evidence in the light most favorable to the non-moving party, Smith has presented sufficient
evidence to support an inference of racial discrimination and establish her prima facie case.
For their part, Defendants have articulated a non-discriminatory reason for Smith’s
termination—namely, that she was terminated because “of the tension she created with her
supervisor” and “her continued mistakes and not being the right fit.”62 Therefore, the burden
shifts back to the Plaintiff to cast doubt on Defendants’ proffered reasons for the termination.
Plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could
reasonably (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.”63 Plaintiff has met her burden.
58 See Smith Dep., Ex. B [Doc. No. 21-3] at 83–95.
59 Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992).
60 See Smith Dep., Ex. B [Doc. No. 21-3] at 259–61, 271.
61 See id. at 283–84.
62 See Defs.’ Mot. Summ. J. [Doc. No. 19] at 2–3; see also Smith Dep., Ex. B [Doc. No. 21-3] at 208–09; Mansor
Dep., Ex. E [Doc. No. 21-3] at 121–22.
63 Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (citations omitted).
The Third Circuit has stated that “low evaluation scores may be a pretext for
discrimination, especially where, as here, an employer uses subjective criteria such as ‘attitude’
and ‘teamwork’ to rate its employees.”64 Here, instead of negative reviews for Plaintiff’s
supposed mistakes, Defendants gave Plaintiff a positive performance review, multiple raises, and
even recommended her for a job in sales.65 A rational factfinder could conclude that these facts
undercut Defendants’ explanation that Plaintiff was fired, in part, for “continued mistakes.”
Defendants also assert that Plaintiff was fired because she was not the right fit for the
company. However, there is record evidence to suggest that Defendants had never previously
terminated an employee for “not being the right fit” without following their own progressive
discipline procedure.66 Defendants’ progressive discipline policy outlines a four-tier system: a
verbal warning, a written warning, a final warning, and then finally termination.67 This system
applies to all employees, unless they committed what was considered a “terminable offense,” in
which case the employee would be let go of immediately. Creating tension with a supervisor and
workplace fit were not listed as “terminable offenses,”68 and Mansor testified in deposition that,
throughout his time as Human Resources Manager, he could not recall any other employee
except Plaintiff being fired for “not being the right fit” without first following the progressive
discipline procedure.69 Coupling this evidence with Plaintiff’s testimony that Mansor treated
64 Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006) (citations omitted).
65 See Smith Dep., Ex. B [Doc. No. 21-3] at 99–106, 137–138, 141, 226–27; February 18, 2022 Performance
Review, Ex. 7 [Doc. No. 22-11].
66 Mansor Dep., Ex. E [Doc. No. 21-3] at 124.
67 Employee Handbook, Ex. D [Doc. No. 21-3] at 23–24.
68 See id.
69 Mansor Dep., Ex. E [Doc. No. 21-3] at 124.
other Black employees in a discriminatory manner, a factfinder could reasonably conclude that
she was terminated for an invidious discriminatory reason.
“Employment discrimination cases center around a single question: why did the employer
take an adverse employment action against plaintiff? Because this is clearly a factual
question, summary judgment is in fact rarely appropriate in this type of case.”70 Here, there are
numerous factual disputes on material issues and credibility determinations that belong in the
hands of a jury. Therefore, summary judgment must be denied.
IV. CONCLUSION
For the reasons stated above, Defendants’ Motion will be denied. An order will be
entered.
70 Marzano v. Comput. Sci. Corp. Inc., 91 F.3d 497, 509 (3d Cir. 1996) (quotation marks and internal citation
omitted).