HOLLEY v. COMMUNICATION TEST DESIGN, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANTONIO HOLLEY, JR., :

Plaintiff, :

:

v. : CIVIL ACTION NO. 23-4670

:

COMMUNICATION TEST :

DESIGN, INC., et al., :

Defendant. :

MEMORANDUM

KENNEY, J. June 30, 2025

I. INTRODUCTION

In this employment action, pro se Plaintiff Antonio Holley (“Plaintiff” or “Holley”), an

African American individual, alleges that his former employer Communications Test Design, Inc.

(“CTDI”) discriminated and retaliated against him due to his race. Discovery is now complete,

and CTDI moves for summary judgment as to each of Holley’s claims. Upon consideration of

CTDI’s Summary Judgment Motion (ECF No. 30, “Mtn.”), Holley’s Response in Opposition (ECF

No. 34, “Opp.”), CTDI’s Reply (ECF No. 35, “Reply”), Holley’s Surreply (ECF No. 38,

“Surreply”), and the undisputed factual record before the Court, for the reasons set forth below,

CTDI’s Motion (ECF No. 30) is GRANTED.

II. LEGAL STANDARD

A. Summary Judgment Standard

Summary judgment shall be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). Indeed, “[s]ummary judgment is appropriate when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.” Mann v. Palmerton Area Sch. Dist., 872 F.3d 165, 170 (3d Cir. 2017), as amended (Sept.

22, 2017) (internal quotations omitted) (quoting Wright v. Owens Corning, 679 F.3d 101, 105 (3d

Cir. 2012)). A fact is “material” if it “might affect the outcome of the suit under the governing

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party,” there exists a genuine issue of

material fact. Id. It is incumbent upon the party moving for summary judgment to “inform[] the

district court of the basis for its motion, and identif[y] those portions of the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, which it

believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986) (cleaned up).

The party opposing summary judgment must demonstrate more than the “mere existence

of a scintilla of evidence” to defeat summary judgment. Anderson, 477 U.S. at 252. Likewise, “a

plaintiff cannot rely on unsupported allegations, but must go beyond pleadings and provide some

evidence that would show that there exists a genuine issue for trial,” Jones v. United Parcel Serv.,

214 F.3d 402, 407 (3d Cir. 2000), as arguments made in the briefing “are not evidence and cannot

by themselves create a factual dispute sufficient to defeat a summary judgment motion.” Jersey

Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109–10 (3d Cir. 1985).

To determine whether a genuine issue of material fact exists, the court must “examine the

evidence of record in the light most favorable to the party opposing summary judgment, and

resolve all reasonable inferences in that party’s favor.” Wishkin v. Potter, 476 F.3d 180, 184 (3d

Cir. 2007). The ultimate question for the Court to decide is whether “a fair-minded jury could

return a verdict for the plaintiff on the evidence presented.” Anderson, 477 U.S. at 252. “Where

the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,”

the court should grant summary judgment, as “there is no genuine issue for trial.” Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (cleaned up).

B. Summary Judgment Filing Requirements

Under Federal Rule of Civil Procedure 56(c), litigants are directed to support their factual

positions as follows:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely

disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a

genuine dispute, or that an adverse party cannot produce admissible evidence to

support the fact.

***

(3) Materials Not Cited. The court need consider only the cited materials, but it may

consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a

motion must be made on personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed. R. Civ. P. 56(c). Further, under Rule 56(e), “[i]f a party fails to properly support an

assertion of fact or fails to properly address another party’s assertion of fact as required by Rule

56(c), the court may . . . consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P.

56(e)(2).

C. Holley’s Opposition Viewed in the Light of his Pro Se Litigant Status

Although the filings of pro se litigants are to be construed liberally by the courts, see

Morrison v. Rochlin, 778 F. App’x 151, 153 (3d Cir. 2019), pro se litigants “cannot flout

procedural rules—they must abide by the same rules that apply to all other litigants.” Mala v.

Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citing McNeil v. United States, 508

U.S. 106, 113 (1993)). At the summary judgment stage, a pro se plaintiff need still “comply with

the procedures outlined in Rule 56 of the Federal Rules of Civil Procedure.” Bello v. Romeo, 424

F. App’x 130, 133 (3d Cir. 2011).

Here, CTDI represents to the Court that “no Concise Statement of Stipulated Material Facts

. . . have been agreed upon by the parties,” though “[t]he parties met and conferred on January 16,

2025.” ECF No. 30-3 at 1. Defendant submitted a “Statement of Additional Facts” consisting of

25 pages and 178 paragraphs with citations to sworn declarations, document exhibits, and Holley’s

deposition testimony. See generally ECF No. 30-4 (“Statement of Additional Facts” or “SOAF”).

Holley did not submit a statement of additional facts. Instead, in response to Defendant’s

filing, Holley submitted with his opposition memorandum a “paragraph-by-paragraph rebuttal

with exhibit references.” See Opp. at 23–28. In this response, Plaintiff fabricated six statements

he attributes to CTDI. Id. Those alleged statements cannot be found anywhere in the summary

judgment record, and one could surmise they were AI creations. Plaintiff, in responding to those

fabricated statements, creates a virtual reality that does not exist. The Court will not be drawn into

a review of this virtual reality.

Ultimately, Plaintiff’s “responses” to the 178 paragraphs in Defendant’s Statement of

Additional Facts shed no more light on the additional facts presented by CTDI, nor do they offer

additional facts to support his own case.1 Therefore, Defendant’s Statement of Additional Facts

is “undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e); see also Smith v. City of Atl.

1 The Court identifies five “issues” that Plaintiff expressly claims constitute “key disputes” or

“genuine issues of material fact”: (1) “unequal enforcement of attendance policies”; (2) “improper

HR handling of protected complaints”; (3) “[w]hether Plaintiff’s shift was changed in retaliation

for his complaints”; (4) “[w]hether the stated reasons for termination were pretextual”; and (5)

“[w]hether comparators were treated more favorably for similar or worse conduct.” See Opp. at

32; Surreply at 3. In deciding this Motion, the Court has mined the record to determine whether

any such genuine disputes of material fact exist, and, for the reasons discussed below, finds that

there are none.

City, 138 F.4th 759, 777–78 & n.8 (3d Cir. 2025) (recognizing Federal Rule of Civil Procedure

56(e)(2)’s applicability to facts not “meaningfully disput[ed]”).

III. FACTS

A. Early Years at CTDI

Holley began working at CTDI, an “engineering, repair, and logistics company,” in

December 2013 at its West Chester, Pennsylvania location. SOAF ¶¶ 1, 4. Though he was

originally assigned the second shift, which encompassed the hours of “roughly 2:00 p.m. to 10:00

p.m.,” from 2016 through 2020, see id. ¶¶ 5, 6, Holley also worked the mid shift and second shift

at various CTDI locations, including those in Exton, Pennsylvania, and Coatesville, Pennsylvania.

Id. ¶¶ 6, 7. CTDI also operated facilities in Swedesboro, New Jersey, and Logan, New Jersey. Id.

¶ 3. Throughout his employment, Holley’s records indicated that he resided at 313 West Eighth

Street, Chester, PA 19103—the address on his driver’s license—though he testified during his

deposition that he “lived at various addresses” during his employment with CTDI. Id. ¶¶ 23–24;

CTDI SJ Ex. 1 (ECF No. 30-12 at 23).

During Holley’s employment with CTDI, the Company maintained an “Employee

Handbook” containing the company’s policies and procedures. SOAF ¶ 25. Included in the

handbook were various policies outlining time recording, attendance expectations, employee

address maintenance, and employee discipline procedures. Id. ¶¶ 25–38. The handbook also

included a policy on “Workplace Commitments,” which covered CTDI’s “equal employment

opportunity [policy][,] anti-harassment [policy][,] and complaint procedure.” Id. ¶ 28. Holley

received a copy of the Handbook upon commencement of his employment and reviewed the

Handbook throughout his tenure with the company. Id. ¶ 26.

Less than two years into his role with CTDI, on June 5, 2015, Holley received a “First

Warning – Attendance” after incurring “three attendance violations from March 12, 2015 through

June 4, 2015.” Id. ¶ 39. These attendance issues arose again in late 2016 and continued through

early 2017, when Holley was issued another “First Warning” for attendance on February 16, 2017

after being late to work on twenty occasions between November 28, 2016 and February 10, 2017.

Id. ¶¶ 40–41. About a year later, on January 5, 2018, Holley received a “Final Warning” for

“failing to provide notice of absence” after failing to report to work on December 29, 2017,

although Holley testified that he had alerted a co-worker of the absence in advance. Id. ¶¶ 43–46;

CTDI SJ Ex. 13 (ECF No. 30-12 at 210).

B. Internal Transfer to the West Chester Facility

At some time near August 20, 2020, Holley interviewed for an internal transfer from

CTDI’s Coatesville location back to CTDI’s West Chester location with supervisors Angelo

Cavuto (“Cavuto”) and Paul Thompson (“Thompson”). Id. ¶ 9. Holley was soon thereafter hired

to work mid shift hours, from 12:00 p.m. to 8:00 p.m., as an international shipping clerk in Building

1373 of CTDI’s West Chester facility. Id. ¶ 10.

While working at the West Chester facility, Cavuto served as Holley’s direct supervisor,

though Holley also received work assignments from Thompson. Id. ¶¶ 11, 16. Both Cavuto and

Thompson reported to Thomas Young (“Young”), the “Branch Manager” in charge of the West

Chester facility’s operations. Id. ¶¶ 18–19. Cavuto and Thompson each worked first shift, which

overlapped with Holley’s assigned mid shift until 3:30 p.m. but left Holley without supervision

from 3:30 p.m. to 8:00 p.m. Id. ¶ 17.

C. Disciplinary Infractions and Move to First Shift

Once employed in the West Chester facility, Holley’s struggle with punctuality was

apparent, with Holley arriving late to his mid shift due to self-proclaimed “traffic” and “childcare”

obligations. Id. ¶¶ 47–49. Then, on June 15, 2021—less than a year after his internal transfer—

Holley received a “Final Warning” regarding his work conduct from Mr. Young for “repeatedly”

leaving his post “without authorization for extended periods” and failing to notify superiors that

he was being paid for hours he was not present on both June 1, 2021 and June 3, 2021. Id. ¶¶ 50–

56. Although Holley testified that he recalled being written up for taking an “extended break” in

June 2021, he stated that the break was due to his cousin’s passing. Id. ¶¶ 53–55.2

About two months later, on August 30, 2021, Holley alerted Cavuto that he would be four

hours late to his shift the following day. Id. ¶ 59. Cavuto responded that Holley had been late to

eight of his ten shifts in the prior two weeks and emphasized that he “need[ed]” Holly there “on

time every day without exception.” Id. ¶ 60. Holley replied only that he “sent an email before

[he] went back to the 12-8 shift stating [that] some Tuesday[s] and Wednesday[s] [he’d] be late,”

and that he had requested to be switched to the 2:00 p.m. to 10:00 p.m. shift for “babysitting

purposes.” Id. ¶ 61. In the month following this warning, Holley arrived late to around 19 out of

his 22 shifts, though he endeavored to stay later those days to make up his lost time. Id. ¶¶ 87–88.

On September 3, 2021, an incident took place in which Holley left his work post for an

extended period. Id. ¶ 63. After learning of the incident, Young informed an HR representative,

Lindsey Ackell (“Ackell”), who communicated with the “corporate campus security manager,”

Mr. Edward Gomez (“Gomez”), to determine the length of Holley’s absence. Id. ¶¶ 64–72. Upon

2 Plaintiff further admitted in his deposition that he sometimes took breaks that were over an hour

long. See SOAF ¶ 58.

Gomez’s review of security footage, it was revealed that Holley left the premises at 4:39 p.m. and

returned at around 8:11 p.m. Id. ¶ 73. Holley testified that he had not left CTDI’s West Chester

facility via vehicle until around 5:00 p.m., as he was “using CTDI’s Wi-Fi to conduct bids on a

raffle in aid of his informal side-business collecting, selling, buying, and trading shoes.” Id. ¶ 86.

Both Young and Ackell reviewed the security footage themselves, confirmed Holley’s

misconduct, and Young conveyed the information to Jodi Colello (“Colello”), a “CTDI senior

manager in employee relations.” Id. ¶ 76. It was then that Young recommended to Colello, given

Holley’s prior final warning for leaving the premises without permission in June 2021, that

Holley’s employment be terminated. Id. ¶ 77.

Ultimately, Colello opted to have Young issue Holley a “Review of Final Warning for

Work Conduct” instead of pursuing termination.3 Id. ¶ 78. In response, Young requested that

Holley be moved from mid shift to first shift so his entire shift could be supervised. Id. ¶ 79.

During the “Review of Final Warning for Work Conduct” meeting with Holley on November 9,

2021, Plaintiff testified that Young told him that “[i]f it was [sic] up to me, [you would be] fired.

So you need to thank whoever saved you.” See CTDI SJ Ex. 1 (ECF No. 30-12 at 86–88); see also

SOAF ¶¶ 80–84. Holley was then moved to first shift with scheduled working hours from 7:00

a.m. to 3:15 p.m. SOAF ¶ 89. Following Holley’s move, CTDI did not re-fill the prior mid shift

position, nor did it hire for the second shift, as the tasks that warranted the shift were no longer

present in Building 1373 past 3:30 p.m.4 Id. ¶¶ 93–94, 130.

3 Holley testified that, per his understanding of CTDI’s employee handbook, he believed that he

would be terminated after his June 2021 Final Warning. See id. ¶ 83.

4 In his Surreply, Holley appears to dispute CTDI’s purported reason for removing him from the

mid shift by arguing that “the work did not move until 6–8 months later.” Surreply at 2. Aside

from providing no record evidence supporting this point, Holley’s surreply mischaracterizes

CTDI’s argument. CTDI does not assert that it moved Holley from the mid shift because the work

no longer existed. Instead, it argues that Holley was moved to first shift so his supervisors could

Holley’s punctuality did not improve with the move to first shift; instead, he was late

“probably every day” in January and February of 2022 due to his babysitting obligations. Id. ¶¶

95–97. Holley testified that he “didn’t have to” look for babysitters available in the morning hours

because he “had a babysitter,” and did not “want to send [his] child to a child care center,” as he

“didn’t trust” anyone “with [his] child other than the people [he] trusted.” CTDI SJ Ex. 1 (ECF

No. 30-12 at 94–98). These individuals included his grandmother and sister, who could only

babysit after 12:00 p.m., and his girlfriend’s mother, who he testified babysat “once [he] switched

to 7 a.m.,” from 6:30 a.m. to 4:00 p.m. CTDI SJ Ex. 1 (ECF No. 30-12 at 98, 165–66).

Although Holley testified that he had access to childcare during his morning shift, he

continued to incur attendance violations on account of “childcare issues,” amassing 13 violations

between January 25, 2022 and February 15, 2022. SOAF ¶¶ 101, 105. On February 15, 2022,

Cavuto issued Holley a “First Warning” for these 13 infractions, and on February 28, he issued a

“Second Warning” for an additional five infractions. Id. ¶¶ 101, 104. At this time, Holley was

aware that only two more infractions in “the following six months would result in the issuance of

a final warning.” Id. ¶ 106.

D. Plaintiff’s Complaints and Offers to Transfer

1. March 1, 2022 Complaint

Holley approached Colello with his first complaint on March 1, 2022 via e-mail. Id. ¶ 107.

In his e-mail, Holley stated that “[t]here were two incidents in June and September of 2021 for

which I received disciplinary action. Since then[] I have been targeted and put in a situation that

seems as though it is meant to cause me to be terminated.” Id. Specifically, Holley alleged that

oversee the entirety of his shift. See, e.g., SOAF ¶ 90. Even assuming that there exists a genuine

dispute on this point, the Court does not find it material.

he was being retaliated against for the June 2021 and September 2021 incidents in which Holley

left his post for extended periods of time, subjected to a hostile work environment, and expressed

his belief that his move from mid shift to first shift was racially charged. Id. ¶ 108.

Holley has consistently maintained his belief that his transfer from mid to first shift was

racially motivated based on emails he accessed in a shared inbox between his immediate

predecessor, Nate Johnson (“Johnson”)—a white male—and Thompson from 2019 through 2020.

Id. ¶¶ 109, 119.5 According to Holley, the emails between Johnson and Thompson evidenced that

Johnson received accommodations due to his nursing school schedule, while Holley did not

receive the same accommodations for his childcare schedule. Id. ¶¶ 109–11. Holley further

5 Holley filed various emails chains between Johnson and Thompson as standalone exhibits on the

docket on December 26, 2024. See ECF No. 29. To ensure that the instant opinion adequately

reflects the record, the Court conducted a thorough review of each document provided by both

Holley and CTDI. First, in January 2019, Johnson emailed Thompson alerting him that he’d be

“coming in early tomorrow so I can make up time/finish viavi.” Holley SJ Ex. 5I (ECF No. 29-17

at 1). Then, in April 2019, Thompson emailed Johnson admonishing him to “make sure you are

at 40 hours as Angelo will be doing your time.” Holley SJ Ex. 5A (ECF No. 29-10 at 1). Later

that year, in July 2019, Thompson alerted Johnson that he “added an hour to everyday this week

to cover the OT you are working.” Holley SJ Ex. 5C (ECF No. 29-11 at 1). A month later, in

August 2019, Johnson alerted Thompson and Cavuto that he would be unable to come in to work

on Wednesdays for a period of six weeks, leading Thompson and Cavuto to discuss whether

permitting the scheduling change would be feasible given Johnson’s workload. See Holley SJ Ex.

5D (ECF No. 29-12 at 1). In December 2019, Thompson alerted an Andy Spence and Cavuto that

“Nate just called and said he would be an hour late today and would Make the time up tonight.”

Holley SJ Ex. 5E (ECF No. 29-13 at 1). A handful of months later, in a February 27, 2020 email

between Johnson and Thompson, Thompson admonished Johnson that he “need[ed] [him] to start

making it [to work] on time everyday [sic],” as he “[s]eem[ed] to be a few minutes late a lot,” and

“[t]hey are gonna [sic] start cracking down on Lates.” Holley SJ Ex. 5F (ECF No. 29-14 at 1); see

also CTDI SJ Ex. 25 (ECF No. 30-12 at 251). Johnson offered to “us[e] vacation in half-hour []

intervals so it is not seen as late,” as his schedule conflicted with nursing school. Holley SJ Ex.

5F (ECF No. 29-14 at 1); see also CTDI SJ Ex. 25 (ECF No. 30-12 at 251); SOAF ¶ 121. In

response, Thompson suggested that Johnson change his shift start time from 2:00 p.m. to 2:30 p.m.

Holley SJ Ex. 5F (ECF No. 29-14 at 1); see also CTDI SJ Ex. 25 (ECF No. 30-12 at 251). In two

email chains from early April 2020, Thompson also alerted Johnson as to missed punches. See

Holley SJ Exs. 5G (ECF No. 29-15 at 1); Holley SJ Ex. 5H (ECF No. 29-16 at 1). As discussed

infra Section V.A.2, Johnson is not a proper comparator to Holley, and these documents do not

create a genuine dispute of material fact.

alleged that Johnson received “courtesies” in his timekeeping that he was not afforded,6 id. ¶ 115,

and that he saw Johnson leave his post without prior approval.7 Id. ¶ 117. However, Johnson had

no disciplinary history with the company. Id. ¶ 120.

As to his complaint of retaliation, Holley claimed to Colello that his move to first shift was

retaliatory because when he “asked again why [his] schedule could not be changed,” his supervisor

told him the move “was in response to the disciplinary action [Holley] received previously.” Id.

¶¶ 112–13; CTDI SJ Ex. 2 (ECF No. 30-12 at 171). Holley claimed that this reasoning was “a

clear indication of retaliation,” because he “should not be continuously penalized for incidents that

happened several months ago.” CTDI SJ Ex. 2 (ECF No. 30-12 at 171). In his email to Colello,

Holley further referenced Young’s November 9, 2021 comment that, had it been up to him, Holley

would have been terminated from his position. Id.; SOAF ¶ 84. Colello responded to Holley

within ten minutes, acknowledging Holley’s concerns and stating that she would ask Ackell, in

her position as Senior Regional Human Resources Manager, to investigate. CTDI SJ Ex. 2 (ECF

No. 30-12 at 171). That same morning, Colello directed Ackell to have Paula Morales

(“Morales”), an HR representative, investigate Holley’s complaint. Id. (ECF No. 30-12 at 170).

2. March 7–8, 2022 Complaint

Morales contacted Holley within a week of his initial complaint on March 7, 2022 to offer

two second shift positions at CTDI’s Coatesville location or in the 1305 Building in West Chester.

SOAF ¶ 124. Plaintiff refused the shifts, as the Coatesville position presented too lengthy of a

6 Holley admitted in his deposition that he was extended such a courtesy by Thompson in October

2021 when Thompson emailed Holley alerting him that he “did not punch in and [his] hours [were]

all over the place” and that “[s]tarting next week [Thompson] expect[s] [Plaintiff] to be punched

in and out on time.” SOAF ¶ 116.

7 Thompson, Cavuto, and Young each attest that they were not aware of such conduct by Johnson.

SOAF ¶ 118.

commute from where he was residing at the time, and the opening in the 1305 Building required

him to take a pay cut due to a position change. Id. ¶¶ 125–27. On March 8, Holley responded to

Morales’s email and reiterated his retaliation and hostile work environment concerns, clarifying

that his hostile work environment concerns “stem[med] from [his] belief that this schedule change

did not come from [Human Resources], but instead was placed into effect by [his] manager in an

attempt to continuously punish [him] for a matter that has already been addressed.” CTDI SJ Ex.

20 (ECF No. 30-12 at 230). By the time of this email, Morales was under the impression that

Holley had retracted his March 1 complaint during a conversation on March 7, 2022 after Morales

explained to Holley that Human Resources was involved in the shift change. CTDI SJ Ex. 20

(ECF No. 30-12 at 229). Ultimately, Morales did not respond to Holley’s March 8 email. Id.

3. March 28, 2022 Complaint

Holley followed up on his March 8, 2022 email to Morales on March 28, 2022, questioning

the status of the “hostile work environment, retaliation, and racial discrimination investigation.”

CTDI SJ Ex. 20 (ECF No. 30-12 at 229). Holley also sought to raise additional concerns, first

regarding his paternity leave, and second, regarding perceived retaliation by Thompson. Id. CTDI

SJ Ex. 20 (ECF No. 30-12 at 229–30). Specifically, Holley alleged that even after informing both

of his supervisors of his leave, Ackell called him inquiring why he had not been present at work.

Id. Regarding Thompson’s alleged retaliation, Holley raised that Thompson was “telling other

employees that [Holley] abandoned [his] job,” and “stated ‘I don’t why [sic] they won’t fire him,

he doesn’t do anything.’” Id.

Morales responded to Holley’s email on April 11, 2022, confirming that she would be

investigating Thompson’s comments regarding Holley’s purported job abandonment and firing,

and requesting that Holley provide the names of witnesses to Thompson’s statements. Id. Also in

the email, Morales requested clarification as to whether, following her conversation with Holley

on March 7, his initial hostile work environment and retaliation complaints remained retracted.

Id.; SOAF ¶ 136. Holley did not respond, though he testified that he did not intend to respond

until he returned to work from his paternity leave. SOAF ¶¶ 137–38.

4. Plaintiff’s Return to Work and June 14, 2022 Complaint

On June 9, 2022, Holley returned from his paternity leave and continued to struggle with

punctuality, appearing late to eighteen of his shifts between his return date and July 6, 2022. SOAF

¶¶ 140–41. Shortly after his return, on June 14, 2022, Holley emailed Morales to convey a new

“hostile work environment” complaint, this time relating to an incident involving Young. Id. ¶¶

142–43. Holley alleged that Young became “agitated” with him because he believed Holley had

not completed a project assigned by Cavuto, and that this agitation was rooted in Thompson and

Young’s desire to have Holley fired. Id. ¶ 144. According to Holley, Young’s “interaction with

[him] was a demonstration of the continued harassment and retaliation [he has] to endure to this

day,” and “fellow coworkers [had] approached [him] and asked why [he’s] being treated this way

and informed [him] of comments made by leadership such as ‘we’ve tried everything to get him

fired.’” CTDI SJ Ex. 20 (ECF No. 30-12 at 228).

Morales held a meeting with Holley on June 21, 2022 in which she offered two additional

positions: one second-shift position in CTDI’s Swedesboro, New Jersey facility, the other, a first-

shift position in CTDI’s Logan, New Jersey facility. SOAF ¶ 145. Holley again refused both

positions, this time because he preferred a different schedule, did not want to take a cut in pay, and

did not want to cross the bridge into New Jersey daily. Id. ¶¶ 147–49.

E. Plaintiff’s Final Warning and Termination

By July 6, 2022, just over four months after receiving his Second Warning for attendance

and despite his paternity leave, Holley incurred 27 additional attendance infractions. Id. ¶ 152.

As a result, Morales met with Holley to issue a Final Warning, which Holley reviewed and signed.

Id. ¶ 154. The Final Warning specified that Holley was “offered five (5) positions in the last (3)

months, three (3) of those were twenty-five (25) minutes closer to [Holley’s] home, [and] all of

which [Holley] declined.” Id. ¶ 153.8 Morales further stated in the written Final Warning that

Holley was “also given the opportunity to come in up to an hour later to accommodate [his] start

time but also declined.” Id. Following this meeting, Holley understood that continued lateness

would be met with termination. Id. ¶ 155.

On July 7, 2022, Holley was late to work once more. Id. ¶ 156. Morales alerted Jerry

Strain (“Strain”), the “Director of Employee Relations” at CTDI, that she would request

termination of Holley’s employment the following week, id. ¶ 157, and by July 13, 2022, Holley

had incurred an additional four lateness violations since his July 6, 2022 Final Warning. Id. ¶ 159.

At that time, Morales reached back out to Strain requesting termination, and Strain agreed, citing

Holley’s Final Warning and failure to take advantage of CTDI’s efforts to accommodate his

schedule. Id. ¶ 160. CTDI terminated Holley’s employment on or about July 15, 2022. Id. ¶ 161.

IV. PROCEDURAL HISTORY

Holley filed this lawsuit on November 22, 2023. ECF No. 2 (“Compl.”). In his Complaint,

Holley asserted a claim for discrimination under Title VII of the Civil Rights Act of 1964, citing

8 Based on Holley’s deposition testimony, there appears to be a dispute over whether Holley was

offered four positions or five, and over whether Holley was offered a start time an hour later to

accommodate his schedule, as noted in his Final Warning. See CTDI SJ Ex. 1 (ECF No. 30-12 at

152–54). However, the Court does not view these disputes as material for purposes of deciding

the Motion.

the “discriminatory conduct” he experienced as a “failure to stop harassment,” “unequal terms and

conditions of my employment,” and “retaliation.” Id. at 4–6.9 In his brief statement of facts,

Holley asserted that “[t]he Human Resources team as well as my superiors failed to provide me

equal accommodations as my white counterparts as it pertains to my work-life-balance. Upon

reporting this discrimination, I was retaliated against and harassed up until the day I was

terminated.” Id. at 6. Plaintiff further confirmed that he filed a charge with the Equal Employment

Opportunity Commission (“EEOC”) on August 25, 2022, and the EEOC issued a Right to Sue

Letter on August 29, 2023. Id. at 7. In his request for relief, Plaintiff checked the line item

requesting “appropriate injunctive relief, lost wages, liquidated/double damages, front pay,

compensatory damages, punitive damages, prejudgment interest, post-judgment interest, and costs,

including reasonable attorney fees and expert witness fees.” Id. at 8.

Just under six months later, CTDI moved to dismiss the Complaint under Federal Rule of

Civil Procedure 12(b)(5) for failure to properly serve original process. ECF No. 10 at 1. In his

response to the Motion to Dismiss, Plaintiff requested alternative service, and the Court ordered

service by the U.S. Marshal Service. ECF Nos. 11 at 2, 13 at 1–2. On August 6, 2024, CTDI

answered Holley’s Complaint, and the case proceeded to discovery. See ECF No. 20.

On January 30, 2025, CTDI filed its motion for summary judgment with respect to each of

Holley’s claims. ECF No. 30. CTDI’s filing contained a Memorandum in Support, a Concise

Statement of Stipulated Facts, Statement of Additional Facts, various declarations from CTDI

employees, and 25 exhibits. Id. A response was due to CTDI’s Motion on February 20, 2025.

See ECF No. 24. When none was filed, the Court ordered Holley to file a response by March 14,

9 At points in his briefing, Holley refers to claims brought under “parallel state laws,” Opp. at 18,

and under the “PHRA,” Surreply at 2. However, Holley’s complaint indicates that he only seeks

relief under “Title VII of the Civil Rights Act of 1964.” See Compl. at 4.

2025. ECF No. 32. Holley filed his Opposition on this date, see ECF No. 34, citing a handful of

exhibits that the Court assumes correspond with the exhibits filed on December 26, 2024 at the

close of discovery. See ECF No. 29. CTDI filed its Reply on March 20, 2025, see ECF No. 35,

and Holley his Surreply on April 2, 2025, see ECF No. 38.

V. DISCUSSION10

A. Racial Discrimination

The Court will grant summary judgment on Holley’s claim of racial discrimination. To

establish a prima facie claim of race discrimination, Plaintiff must prove that: “(1) [he] is a member

of a protected class; (2) [he] was qualified for the position [he] sought to attain or retain; (3) [he]

suffered an adverse employment action; and (4) the action occurred under circumstances that

could give rise to an inference of intentional discrimination.” Qin v. Vertex, Inc., 100 F.4th 458,

473 (3d Cir. 2024) (alterations in original) (quoting Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir.

2008)). Should Plaintiff succeed in establishing a prima facie case, it is then incumbent on the

Defendant as part of the burden shifting framework “to articulate a legitimate, non-discriminatory

reason for the adverse employment action.” Id. at 474. Once the Defendant meets its burden of

production of a legitimate, nondiscriminatory reason for the conduct alleged, the burden then shifts

back to Plaintiff to show that the stated “reason is merely pretext for intentional discrimination.”

Id. (internal quotations omitted).

There is no dispute that Holley has satisfied the first two elements of his prima facie case:

Holley is a member of a protected class, and he was qualified for his position with CTDI. Instead,

in its Motion, CTDI argues that Holley has failed to show a genuine dispute of material fact on

10 Because the Court finds that Defendants are entitled to summary judgment on all claims, it will

not reach the question of damages.

prongs three and four. The Court disagrees with CTDI’s argument that Holley has failed to show

an adverse employment action but agrees with CTDI that Holley has not shown that the

circumstances give rise to an inference of discrimination.

1. Adverse Employment Action

Although Holley appears to argue in his briefing that his termination is the relevant adverse

employment action in the dispute,11 the Court agrees with CTDI’s read of the Complaint and the

EEOC complaint that CTDI’s failure to move Holley back to mid shift is the established alleged

adverse employment action. See Mtn. at 18. However, the Court finds that CTDI’s denial of a

schedule change constitutes an actionable adverse employment action, thereby satisfying prong

three of the prima facie case.

An adverse employment action requires a showing that “the employee suffered ‘some

harm’ to a term or condition of employment—in other words, that the employer treated the

employee ‘worse’ because of a protected characteristic.” Peifer v. Bd. of Prob. & Parole, 106

F.4th 270, 277 (3d Cir. 2024) (quoting Muldrow v. City of St. Louis, 601 U.S. 346, 354 (2024)).12

11 Holley appears to raise for the first time in his Opposition that he was wrongfully terminated as

a result of racial discrimination and retaliation. See Opp. at 19–21. However, Holley has

consistently disavowed any belief that he was wrongfully terminated. See ECF No. 2 at 5–6, 9;

CTDI SJ Ex. 24 (ECF No. 30-12 at 245). Accordingly, the Court only considers the denial of a

shift change as part of its analysis. See Carr v. Gillis Associated Indus., Inc., 227 F. App’x 172,

176 (3d Cir. 2007) (“District Courts have broad discretion to disallow the addition of new theories

of liability at the eleventh hour.”); cf. Dewees v. Haste, 620 F. Supp. 2d 625, 635 (M.D. Pa. 2009)

(“However, Plaintiff has from the outset grounded his claim of retaliation on the termination of his

employment; the complaint cannot reasonably be read to include a claim for retaliation based upon

the referral of Plaintiff’s potential return to the Prison Board[,] and to the extent Plaintiff is

attempting to expand upon his original allegations through argument in his brief[,] it is

impermissible.” (emphasis added)), aff’d, 386 F. App’x 133 (3d Cir. 2010).

12 Muldrow altered the standard for when an action may constitute an “adverse employment action”

for purposes of establishing a prima facie case of discrimination, specifically disavowing the

requirement that the harm alleged be “a ‘serious and tangible’ employment-related harm.” Peifer,

106 F.4th at 277 (quoting Komis v. Sec’y of U.S. Dep’t of Lab., 918 F.3d 289, 292 (3d Cir. 2019));

Muldrow, 601 U.S. at 355. Considering this significant change in law, CTDI’s reference to the

The Supreme Court clearly articulated that the phrase “[t]erms or conditions,” in the context of a

claim for employment discrimination, includes factors beyond those that are “economic or

tangible” and apply beyond a “narrow contractual sense.” Muldrow, 601 U.S. at 354.

While it is apparent to the Court that Holley viewed a later shift as preferable to the first

shift he was assigned to for personal reasons—i.e., to accommodate his childcare schedule—

Holley’s March 1, 2022 complaint to Human Resources indicates that CTDI’s denial of the shift-

change request ultimately resulted in him feeling as though he was “being targeted,” “intentionally

forced out,” and “put in a situation that seem[ed] as though it [was] meant to cause [him] to be

terminated” due to the “continuous[]” discipline he received for being late. See CTDI SJ Ex. 2

(ECF No. 30-12 at 171). Holley complained that he had “never experienced the treatment that [he

had] experienced in the last year” prior. Id. In essence, a reasonable juror could find that Holley’s

“conditions” of employment were altered by the growing feeling of being “targeted” for

termination. Given Muldrow’s “some harm” standard, and the requirement that the Court draw all

reasonable inferences in Holley’s favor, the Court finds that Holley has offered enough evidence

from which a reasonable juror could infer that he suffered “some” employment-related harm when

he was denied a change back to his original shift. The adverse employment action prong is

therefore satisfied.

2. Inference of Discrimination

Even in light of the Court’s finding that Holley has adequately shown that he suffered an

adverse employment action, Holley has failed to show that such an adverse employment action

occurred under circumstances giving rise to an inference of intentional discrimination. To meet

“serious and tangible” standard in its Motion begs correction and need be remedied moving

forward. See Mtn. at 19.

the fourth element of the prima facie case, “a plaintiff may either (1) introduce evidence of

comparators (i.e., similarly situated employees who (a) were not members of the same protected

class and (b) were treated more favorably under similar circumstances); or (2) rely on

circumstantial evidence that otherwise shows a causal nexus between his membership in a

protected class and the adverse employment action.” Greene v. V.I. Water & Power Auth., 557 F.

App’x 189, 195 (3d Cir. 2014).

i. Comparator Evidence

Holley points to a single comparator, Nate Johnson, as the only support for his prima facie

case of racial discrimination. “[C]omparator employees need not be identical but must be similarly

situated in all material respects.” Qin, 100 F.4th at 474 (internal quotations omitted). While the

relevant factors are case-specific, effective demonstration of a comparator often includes a

showing that the plaintiff and comparator “dealt with the same supervisor, [were] subject to the

same standards, and [] engaged in similar conduct without such differentiating or mitigating

circumstances as would distinguish their conduct or the employer’s treatment of them.”

Lesiv v. Ill. Cent. R.R. Co., 39 F.4th 903, 919 (7th Cir. 2022) (emphasis added) (quoted in Grant

v. U.S. Post Off., No. 22-2933, 2023 WL 3816524, at *2 (3d Cir. June 5, 2023)). “Whether

comparators are similarly situated is generally a question of fact for the jury,” but summary

judgment is nevertheless appropriate “where there is no evidence from which a jury could conclude

the parties were similarly situated.” Abdul-Latif v. Cnty. of Lancaster, 990 F. Supp. 2d 517, 526

(E.D. Pa. 2014).

Holley maintains that, based on the e-mails found in the shared inbox, Johnson engaged in

similar misconduct, namely, committing attendance infractions and departing his workstation

without authorization. SOAF ¶¶ 109–22. But, according to Holley, Johnson was granted

accommodations for his nursing school schedule while Holley was not for childcare. Id. However,

considering all facts in the light most favorable to Holley, the Court does not find Johnson to be a

proper comparator for purposes of establishing the fourth prong of the prima facie case. While it

may be the case that Holley and Johnson were both full-time employees in the same role and each

received work from Thompson, there are significant “differentiating” circumstances such that

Johnson’s misconduct cannot effectively be compared to Holley’s. First and foremost, by the time

Holley requested a schedule accommodation, he already had a significant disciplinary record with

CTDI (including two previous Final Warnings), while Johnson had none. Id. ¶¶ 43, 50, 109–22.

Further, Holley incurred a multitude of attendance violations even while working the schedule that

he eventually sought to return to, dating back to 2015. See, e.g., id. ¶¶ 39–40, 87. Further, while

Johnson’s misconduct was limited to timekeeping and tardiness infractions,13 Holley’s misconduct

was not limited in the same way. Indeed, Holley admitted that he was disciplined twice, in June

and September 2021, for leaving his post for extended periods of time, with one of those

unauthorized breaks amounting to nearly four hours away from his post to work his side job selling

and auctioning sneakers. Id. ¶¶ 51, 63–82. Based on the record, it was Holley’s leaving his post

that caused his shift to be changed, not his timeliness infractions. Id. ¶¶ 89–90. These conduct

issues, rather than attendance issues, “distinguish” Holley’s conduct from Johnson’s. Therefore,

Holley fails to establish a proper comparator for purposes of fulfilling the fourth prong of the prima

facie case.

13 Even if it is true that Holley witnessed Johnson leaving his workstation, Holley does not allege

that the supervisors relevant here knew that Johnson left his workstation, and Young, Thompson,

and Cavuto each made a sworn statement that they did not have knowledge of Johnson taking any

extended breaks or leaving his work post for extended periods of time. SOAF ¶ 118.

ii. Other Circumstantial Evidence

The Court also finds no evidence in the record that would lead a reasonable juror to infer

discriminatory intent. Holley testified during his deposition that he was not aware of Colello,

Young, Morales, Cavuto, or Gomez making “any race-related comments about him.” See id. ¶¶

163–67, 169. And, at most, Holley’s testimony was inconsistent on whether Thompson had ever

made a race-based comment toward him. Compare CTDI SJ Ex. 1 (ECF No. 30-12 at 12) (“Q.

And what about Paul Thompson? A. Racial comments towards me? No. But he has made racial

comments. Q. Did you report that? A. No.”) with CTDI SJ Ex. 1 (ECF No. 30-12 at 163) (“Q.

Okay. Paul Thompson, a supervisor of yours when you worked at CTDI, do you know who that

is? A. Yes. Q. Did — has he ever made a race-based comment to you? A. Yes.”). Even construing

the inconsistency in the light most favorable to Holley, the Court cannot conclude that this

testimony alone is sufficient for a reasonable juror to find in Holley’s favor on this prong. The

record is otherwise devoid of any circumstantial information that could give rise to an inference

of discrimination. Accordingly, the Court will grant summary judgment in favor of CTDI on

Holley’s race discrimination claim.14

B. Hostile Work Environment

The Court will also grant summary judgment in favor of CTDI on Holley’s hostile work

environment claim. Holley’s hostile work environment claim stems from three interactions: (1)

14 For avoidance of doubt, the Court finds that CTDI has offered a legitimate, nondiscriminatory

reason for the denial of the shift change request—that Holley needed to be directly supervised

during his shift due to the previous instances of him leaving his post without permission. See, e.g.,

SOAF ¶ 90. The Court further finds that Holley has unsuccessfully rebutted this legitimate

nondiscriminatory reason, as he has not offered any record evidence to show that this reason was

merely pretext for discrimination. As discussed above, statements made in briefing “are not

evidence and cannot by themselves create a factual dispute sufficient to defeat a summary

judgment motion.” Jersey Cent. Power & Light Co., 772 F.2d at 1109–10.

Young’s November 9, 2021 comment that if it were up to him, Holley would be fired; (2)

Thompson’s March 2022 comment that Holley had abandoned his job and would be fired; and (3)

Young’s June 2022 “agitation” at Holley over a work assignment. Id. ¶¶ 84, 132, 143. A

successful hostile work environment claim must show that 1) the plaintiff “suffered intentional

discrimination” because of his protected characteristic, (2) “the discrimination was severe or

pervasive,” (3) “the discrimination detrimentally affected the plaintiff,” (4) “the discrimination

would detrimentally affect a reasonable person in like circumstances,” and (5) “respondeat

superior liability” is present. Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir.

2013). Relevant to the analysis are factors such as “the frequency of the discriminatory conduct;

its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work performance.” Qin, 100 F.4th at 471.

1. Intentional Discrimination Based on Race

Holley fails to satisfy the first prong of the hostile work environment test. “Title VII does

not prohibit all verbal or physical harassment in the workplace; it is directed only at discrimination

because of” a protected characteristic. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,

80 (1998) (internal quotations omitted). Here, the record is devoid of any indication that the

comments made were racially charged. First, Holley admits that Young never made a race-based

comment to him, thereby undermining any claim that Young’s comment about firing Holley was

“because of” his race. SOAF ¶ 164. And, as discussed supra Section V.A.2, Holley’s inconsistent

testimony on Thompson making a race-based comment toward him cannot alone sustain a claim

that Thompson’s March 2022 comment was made “because of” Holley’s race. In fact, the March

2022 comment—which Holley alleged evidenced a hostile work environment—had nothing to do

with his race. SOAF ¶ 132.

Second, even assuming Holley also claims that the purported retaliation he faced after

reporting discrimination in March and June 2022 was so severe as to create a hostile work

environment, he provides no evidence that Thompson was aware of his complaints to Morales

about discrimination. As for Young’s June 2022 “agitation,” there is no evidence in the record

connecting this negative treatment to Holley’s complaints of discrimination.

Without evidence indicating that these statements were made “because of” Holley’s race,

Holley cannot fulfill the first prong of the hostile work environment test.

2. Severe and Pervasive

Holley also fails to satisfy the second prong of the hostile work environment test, i.e., that

the discrimination was severe or pervasive. “A hostile work environment is actionable under Title

VII only if it is so severe and pervasive that it alters the conditions of the victim’s employment

and creates an abusive working environment.” Greer v. Mondelez Glob., Inc., 590 F. App’x 170,

173 (3d Cir. 2014) (internal quotations omitted) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.

268, 270 (2001)).

Considering the complained of behavior in totality, the Court finds that the alleged

harassment does not rise to the level of severe or pervasive. Unless they are “extremely serious,”

“offhand[] comments and isolated incidents . . . are not sufficient to sustain a hostile work

environment claim.” Watkins v. Pa. Dep’t of Corr., No. 22-1426, 2023 WL 5925896, at *4 (3d

Cir. Sept. 12, 2023) (quoting Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005)). At most,

the record indicates that each comment by Young and Thompson was an offhand statement relating

to Holley’s workplace conduct. Although intentional jabs or musings about Holley being fired

may have been distressing to Holley, “it is insufficient to show . . . that the conduct was such that

it rendered Plaintiff's worklife unpleasant or uncomfortable.” Palmer v. Fed. Express Corp., 235

F. Supp. 3d 702, 719 (W.D. Pa. 2016). Similarly, while Young’s alleged agitation toward Holley

in June 2022 “may have been unprofessional, embarrassing to Plaintiff, or made him feel

uncomfortable,” no reasonable juror could conclude that Young expressing his “agitation”

amounted to severe and pervasive discriminatory conduct. Lulis v. Barnhart, 252 F. Supp. 2d 172,

178 (E.D. Pa. 2003).15

Ultimately, “personality conflicts between employees are not the business of the federal

courts.” Hoist v. New Jersey, No. CIV.A. 12-5370 FLW L, 2015 WL 4773275, at *22 (D.N.J.

Aug. 13, 2015), aff’d, 642 F. App’x 169 (3d Cir. 2016) (internal quotations omitted). It is apparent

from the record that tensions arose between Holley and building supervisors based on Holley’s

ongoing attendance and work conduct issues. However, the record indicates that the alleged

hostile comments were infrequent, did not “unreasonably interfere with [Holley’s] work

performance,” and did not amount to ongoing physical threats or humiliation based on Holley’s

race. Qin, 100 F.4th at 471.

Accordingly, the Court will grant summary judgment on Holley’s hostile work

environment claim, as there is insufficient evidence from which a reasonable jury could find that

Holley was subject to “severe and pervasive” discriminatory conduct which “alter[ed] the

conditions of [his] employment” and “create[ed] an abusive working environment.” Greer, Inc.,

590 F. App’x at 173 (internal quotations omitted).

15 Holley’s June 14, 2022 complaint to Morales also states “fellow coworkers have approached me

and asked why I’m being treated this way and informed me of comments made by leadership such

as ‘we’ve tried everything to get him fired.’” CTDI SJ Ex. 20 (ECF No. 30-12 at 228). Again,

without further evidence that such comments were made based on Holley’s race, this record

evidence does not create a genuine dispute of material fact.

C. Retaliation

Holley fails to establish a prima facie case of retaliation, and the Court will grant summary

judgment in CTDI’s favor on this claim. To demonstrate a prima facie case of retaliation, a

plaintiff must show: “(1) that he engaged in protected conduct; (2) that he was subject to an adverse

employment action subsequent to such activity; and (3) that a causal link exists between the

protected activity and the adverse action.” Qin, 100 F.4th at 475 (quoting Barber v. CSX Distrib.

Servs., 68 F.3d 694, 701 (3d Cir. 1995)). “If the [p]laintiff makes this showing, the burden shifts

to the employer to advance a legitimate, non-retaliatory reason for its conduct.” Smith v. City of

Atl. City, 138 F.4th at 775 (quoting Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006))

(internal quotations omitted). If the employer advances a legitimate, non-retaliatory reason, “the

burden shifts back to the [p]laintiff to convince the factfinder both that the employer’s proffered

explanation was false, and that retaliation was the real reason for the adverse employment action.”

Id.

Here, there is no dispute that Holley made three complaints of discrimination to Morales:

one on March 1, 2022, one on March 28, 2022, and one on June 14, 2022, fulfilling the protected

activity prong. See SOAF ¶¶ 107, 131, 142. CTDI’s arguments focus on whether Holley has

presented evidence of a materially adverse action, and whether a reasonable jury could infer a

causal connection between the protected activity and purported adverse action.

1. Adverse Action

CTDI first argues that, as a matter of law, any alleged adverse action taking place prior to

March 1, 2022—the date of Plaintiff’s initial complaint—cannot be retaliatory. Mtn. at 25. The

Court agrees.

In his March 1, 2022 email to Morales, Holley conveyed his belief that he was being

retaliated against based on the September 2021 incident in which he left CTDI’s premises for an

extended period. SOAF ¶ 112. However, until that point, Holley had not engaged in any protected

activity. For purposes of establishing a prima facie case of retaliation, any alleged adverse action

must have been undertaken “either after or contemporaneous with the employee’s protected

activity.” Canada v. Samuel Grossi & Sons, Inc., 49 F.4th 340, 346 (3d Cir. 2022). Therefore, to

the extent that Holley believes that his initial shift change constituted an adverse employment

action, this argument fails.16

The remaining alleged adverse employment action, then, is CTDI’s refusal to move Holley

back to his original mid shift position. “An adverse action must be materially adverse, such that

it is harmful to the point that it could well dissuade a reasonable worker from making or supporting

a charge of discrimination.” Smith, 138 F.4th at 775 (quoting Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53, 57 (2006)). In Burlington Northern, “the Supreme Court provided examples

of retaliatory actions that qualified as materially adverse, which included changes that had an

‘enormous’ impact on an employee’s ability to work, exclusion from professional advancement

opportunities, and re-assignment to less prestigious duties.” Goodman v. Norristown Area Sch.

Dist., No. 20-CV-1682, 2021 WL 6063122, at *16 (E.D. Pa. Dec. 22, 2021) (citing Burlington N.,

548 U.S. at 69, 71).

The Court can only discern from the record Holley’s belief that CTDI’s refusal to move

him back to mid shift had some impact on his “ability to work,” that is, on getting to work on-time.

16 During his deposition, Holley testified that he was not “claiming CTDI retaliated against” him

in any way aside from the claim that CTDI failed to “chang[e] [his] schedule to accommodate [his]

childcare needs.” CTDI SJ Ex. 1 (ECF No. 30-12 at 9). The Court merely seeks to clarify Holley’s

briefing.

However, even assuming this to be true, the record does not point to this impact being so

“enormous” that it rises to the level of a materially adverse employment action.17 First, Holley

experienced issues with timeliness and attendance prior to the shift change, indicating that CTDI’s

refusal to move him back to mid shift was unlikely to be the driving force in his subsequent

attendance issues. See, e.g., id. ¶¶ 39–40, 87. Second, Holley testified that his girlfriend’s mother

was available to babysit when he moved to first shift. CTDI SJ Ex. 1 (ECF No. 30-12 at 166).

Finally, Holley testified that looking into alternate childcare arrangements did not occur to him

when he moved to first shift, further demonstrating the impact of Holley’s own choices on his

attendance record. CTDI SJ Ex. 1 (ECF No. 30-12 at 95–99). In other words, the record shows

that CTDI’s refusal to switch Holley back to mid shift did not have an “enormous” impact on

Holley’s ability to work—instead, it was Holley’s own choices which had this impact.

Accordingly, Holley has failed to show an adverse employment action for purposes of his prima

facie case of retaliation.

2. Causation

Holley has also failed to set forth any evidence from which a reasonable juror could infer

a causal connection between his complaints to Morales and CTDI’s refusal to move him back to

mid shift. The causal connection may be displayed using “a broad array of evidence,” such as

“inconsistent explanation[s] for taking an adverse employment action, a pattern of antagonism, or

temporal proximity unusually suggestive of retaliatory motive.” Carvalho-Grevious v. Del. State

17 The Supreme Court made clear in Muldrow that its decision did not alter the “materially adverse”

standard relevant to Title VII retaliation claims and reiterated that “[a]n action causing less serious

harm will not deter Title VII enforcement and so falls outside the purposes of the ban on

retaliation.” Muldrow, 601 U.S. at 348.

Univ., 851 F.3d 249, 260 (3d Cir. 2017) (cleaned up). “These are not the exclusive ways to show

causation, as the proffered evidence, looked at as a whole, may suffice to raise the inference.” Id.

First and foremost, to the extent that Holley asserts that his retaliation claim is based on

Thompson or Cavuto’s specific failure to move him back to mid shift, both declared under oath

that they did not know that Holley made complaints of discrimination to Morales. See SOAF ¶

114(a). Without knowledge of the protected activity on the part of a decision-maker, the causal

connection between the protected activity and the alleged adverse employment action is lacking.

See Giuseffi v. Sec’y United States Dep’t of Homeland Sec., 810 F. App’x 96, 101 (3d Cir. 2020)

(“No prior knowledge means no causation.”). Holley did not rebut the sworn declaration

testimony.

Moreover, Holley repeatedly requested a shift change prior to his first raising complaints

of discrimination in March 2022, and his requests were denied. See CTDI SJ Ex. 2 (ECF No. 30-

12 at 171). Indeed, Holley’s shift was not adjusted at any point between the move to first shift in

November 2021 and his first complaint on March 1, 2022. As CTDI acknowledges, “[a]n

employee cannot insulate themselves from adverse actions by raising claims of discrimination after

engaging in non-protected conduct that was the basis for the employer’s adverse action.” Scruggs

v. Phila. Hous. Auth., No. 22-cv-510, 2024 WL 388391, at *12 (E.D. Pa. Jan. 31, 2024) (citing

Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 137 (3d Cir. 2006)).

Prior to the alleged retaliatory conduct, Holley was on the first shift for months, and his supervisor

rejected any requests to move him back to mid shift. See CTDI SJ Ex. 2 (ECF No. 30-12 at 171).

In other words, Holley’s workplace misconduct was “recognized prior to engaging in protected

activity” and shift change requests were denied prior to any complaints being made to Human

Resources. Ross v. Cont’l Tire of Americas, LLC, No. CIV.A. 12-2631, 2013 WL 1628193, at *6

(E.D. Pa. Apr. 16, 2013), aff’d sub nom., Ross v. Gilhuly, 755 F.3d 185 (3d Cir. 2014). Therefore,

the Court finds that causation cannot be inferred under the circumstances. Id.

Finally, as to whether Holley experienced a “pattern of antagonism,” the Court does not

find the record to support that any purported antagonism Holley experienced following March 1,

2022 resulted from his protected activity. Even assuming that the “continuous[]” scrutiny of his

attendance and performance Holley experienced after making his complaint constituted a

“pattern,” Holley’s attendance and tardiness were scrutinized for years prior to him making his

first complaint. CDTI SJ Ex. 20 (ECF No. 30-12 at 230); SOAF ¶¶ 39–106. This fact belies any

inference of causality.

Holley also argues in his opposition that he experienced “dismissive” behavior from

Morales following his first complaint and “no effort was made to address his concerns.” Opp. at

21. The record directly contradicts these arguments. It is undisputed that Morales maintained

communication with Holley regarding his complaints and indicated that she would investigate

Holley’s March 28, 2022 complaint, but Holley didn’t respond to her email requesting further

information. SOAF ¶¶ 107–138. It is similarly undisputed that CTDI offered Holley different

positions at various CTDI locations in an attempt to accommodate his childcare schedule. Id. ¶¶

124–27, 145–50. Holley turned down every offer for various reasons: travel time, a decrease in

pay, or unpreferred working hours. Id.

Finally, and to the extent that Holley argues that Young’s “agitation” toward him in June

2022 further evidenced a pattern of antagonism, see CDTI SJ Ex. 20 (ECF No. 30-12 at 228),

Holley provides no record evidence upon which a reasonable juror could conclude that the

agitation was causally related to his complaints of discrimination rather than his workplace

conduct.

3. Pretext

For avoidance of doubt, the Court will further address Holley’s statement that CTDI’s

reason for not moving Holley back to mid shift is pretextual. In his Surreply, Holley argues that

“Defendant falsely claims the shift change was required because Plaintiff’s work moved locations.

In fact, that work did not move until 6–8 months later, and Plaintiff continued doing the same job

on the new schedule, often unable to complete it because the workload arrived after 12:00 p.m.,

after his new shift had ended.” Surreply at 2. The Court finds that this point does not present a

legitimate dispute of material fact. First, CTDI does not claim that Holley’s shift was changed

because Plaintiff’s work moved locations. Instead, CTDI asserts that Holley’s shift was changed

so that his supervisors could oversee his entire shift, a point underscored by the record. SOAF ¶¶

79, 90, 129. This reasoning did not change when Holley began making complaints to Human

Resources. Regardless of whether the work necessitating the mid shift remained after Holley was

moved to first shift, the sworn statement by Morales indicates that “CTDI did not want to move

Mr. Holley back to his prior shift because his supervisors could not monitor his conduct.” Morales

Decl. ¶ 32 (ECF No. 30-6 at 5). Therefore, Holley’s pretext argument is a straw man, and Holley

has failed to show that CTDI’s stated reason for denying the shift change—that is, wanting to

monitor Holley’s conduct during the first shift—was pretext for retaliation.18

18 Holley also asserts in his surreply that “CTDI tolerated his attendance record for over a decade,

and discipline only escalated after he reported racial discrimination and retaliation in late 2022,”

and that “shortly after that complaint, CTDI suddenly issued multiple write ups and a Final

Warning—despite no significant change in behavior.” Surreply at 1. However, this argument is

unsupported by the record, as CTDI did not “tolerate[] his attendance record for over a decade,”

but continuously wrote him up for being late and issued two Final Warnings prior to him making

any charge of discrimination to HR. SOAF ¶¶ 43, 50–106. Further, there was nothing “sudden”

about the issuance of multiple write-ups and the Final Warning following the June 2022 complaint.

Holley had “accumulated an additional twenty-seven attendance infractions since he was issued

his Second Warning [for] Attendance on February 28, 2022,” with eighteen of those lates taking

place between June 9, 2022 and July 6, 2022. Mtn. at 10; SOAF ¶ 152; CTDI SJ Ex. 21 (ECF No.

Accordingly, Holley has failed to state a prima facie case of retaliation, and summary

judgment will be granted as to his retaliation claim.

VI. CONCLUSION

For the reasons stated above, Defendant’s Motion for Summary Judgment (ECF No. 30) is

GRANTED in full, and the case is DISMISSED. An appropriate order will follow.

BY THE COURT:

/s/ CHAD F. KENNEY

CHAD F. KENNEY, J.

30-12 at 233). Morales issued the Final Warning on July 6, 2022, and Holley then proceeded to

arrive late to his shift not only the very next day, but three additional days thereafter. SOAF ¶¶

152, 156, 159. Holley’s pretext argument therefore does not pass muster.