Canada v. Samuel Grossi & Sons Inc

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 20-2747

_____________

JOSEPH CANADA,

Appellant

v.

SAMUEL GROSSI & SONS, INC.

________________

On Appeal from the District Court for the

Eastern District of Pennsylvania

(D.C. No. 2-19-cv-01790)

District Judge: Hon. Jan E. DuBois

________________

Argued on May 27, 2021

Before: McKEE, RESTREPO, and FUENTES, Circuit

Judges

(Opinion filed: September 15, 2022)

Timothy S. Seiler (Argued)

Karpf Karpf & Cerutti

3331 Street Road

Suite 128, Two Greenwood Square

Bensalem, PA 19020

Counsel for Appellant

Brad M. Kushner (Argued)

Stevens & Lee

1500 Market Street

Centre Square

East Tower, Suite 1800

Philadelphia, PA 19102

Counsel for Appellee

________________

OPINION OF THE COURT

________________

McKEE, Circuit Judge

Joseph Canada appeals the District Court’s dismissal of

his retaliation claims against Samuel Grossi and Sons, Inc.

(“Grossi”), his former employer. The claims were brought

under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 1981,

the Americans with Disabilities Act (“ADA”), and the Family

Medical Leave Act (“FMLA”). Although Grossi argued that it

fired Canada for misconduct that was discovered during a

search of his cellphone, Canada claims Grossi’s true motive for

firing him was retaliation for actions that were protected under

the aforementioned statutes. For the reasons that follow, we

will reverse the District Court’s grant of summary judgment to

Grossi on Canada’s retaliation claims arising from his final

termination and remand for further proceedings consistent with

this opinion.

I.

Canada, a Black man, worked for Grossi, a steel

producer, for 10 years.1 Canada suffered from “serious back

1

We review a grant of summary judgment de novo.

Scheidemantle v. Slippery Rock Univ. State Sys. of Higher

Educ., 470 F.3d 535, 538 (3d Cir. 2006). Here, the District

Court granted Grossi’s motion for summary judgment.

Canada v. Samuel Grossi & Sons, Inc., 476 F. Supp. 3d 42,

56 (E.D. Pa. 2020) (“Dist. Ct. Op.”). Therefore, we present

the facts in the light most favorable to Canada.

2

problems,” including herniated discs and arthritis.2 These back

problems formed the basis of the disability discrimination

claims outlined in his original complaint. Canada claims that

throughout his tenure, Grossi management prevented him from

accessing forms pertaining to the FMLA and harassed him

when he tried to use FMLA leave for his back problems.3

Canada eventually obtained FMLA forms on his own.

Thereafter, he would notify Grossi management that he was

claiming FMLA leave during his absences from work. Elena

Osorio, Grossi’s director of human resources, testified that she

never approved FMLA leave for Canada, but that Canada

“took FMLA how he wanted,”4 and she “let [Canada] take his

FMLA” leave, and did not assess any attendance points against

him for doing so.5

Occasionally, when demand for Grossi’s products was

low, Grossi ordered temporary layoffs. The layoffs, governed

by a Collective Bargaining Agreement (“CBA”) between

Grossi and a labor union, occurred in order and in preference

of seniority.6 On one such occasion, Canada was laid off, but

only for a day.7 He promptly returned to work with the same

pay and benefits he enjoyed prior to his layoff.8

2

JA 5.

3

See 29 U.S.C. § 2601 et seq.

4

JA 289.

5

JA 290.

6

Canada was a member of the Shopmen’s Local Union No.

502 of the International Association of Bridge, Structural,

Ornamental and Reinforcing Iron.

7

We need not consider the merits of this first layoff because

the retaliation claims were brought only in connection to the

second termination. We note, however, on its face, this one-

day layoff is consistent with the workforce reduction policy

under the CBA.

8

The CBA allows more senior employees in one unit to

“bump” less senior employees in other units, rather than be

laid off themselves as long as the more senior employee is

“immediately able to perform the work.” JA 8. In March

2018, Grossi temporarily laid off twenty-three employees,

including Canada. Canada attempted to avoid the layoff by

“bumping” a less senior worker in the paint shop, but Grossi

refused to allow him to bump due to a doctor’s note that he

3

In March 2019, the same month as Canada’s one-day

layoff, Canada “filed a charge . . . with the EEOC . . . outlining

the discrimination and retaliation he [claimed he] had been

experiencing.”9 A month later, in April, “[d]ue to the [alleged]

continued discriminatory and retaliatory treatment from . . .

management,” Canada filed the first complaint in the District

Court, alleging race discrimination, retaliation, and a hostile

work environment under Title VII, § 1981, the ADA, and the

FMLA.10 After filing his lawsuit against Grossi, John Grossi,

offered months before. The note explained that he must be

excused from working with paint due to his health. Upon

submitting the note, Canada was transferred out of the paint

shop to work as a machine operator.

Right before the scheduled layoff, Canada presented

Grossi with another note from a different doctor that stated in

its entirety: “Joseph Canada may work around paint.” JA 9.

Canada testified that he procured this letter to shield against

the impending layoff. Grossi, however, did not accept the

note because “it [didn’t] say anything about [Canada’s]

previous issue” and “the doctor that wrote [the second note

didn’t] have the medical history to approve” his transfer back

to the paint department. JA 9 (second alteration added).

9

Appellant Br. at 16; see also JA 67. Canada alleges that he

was subject to discrimination and a hostile work environment

at Grossi based on his being a Black man. In a deposition,

Canada testified that between March 2018 and July 2019,

various co-workers and superiors used the word “nigger” in

the workplace. JA 115. He testified that his co-worker called

him nigger twice. JA 115 (explaining that in March 2018, his

co-worker called him a “fucking nigger” after he accidently

knocked over the co-worker’s radio, and then in February

2019, he called him it a second time). In fact, when Canada

complained to Osorio about this co-worker, Osorio expressed

that she saw no issue. Specifically, Canada testified that she

told him that she and her sister “dated black guys and [have]

said, ‘nigger’ before.” JA 115.

10

JA 68; see also JA 41-60 (first civil action complaint).

Ultimately, Canada filed his Second Amended Civil Action

Complaint in November 2019. He alleged race

discrimination, retaliation, and hostile work environment

under both Title VII of the Civil Rights Act of 1964, 42

4

one of the company’s owners, approached him and threatened

that if he did not drop the lawsuit, “I’ll [ ] just have other

African-American employees say the opposite of what you’re

saying.”11 Canada was terminated a month later, in July 2019.

Grossi based the termination on text messages that

management found on Canada’s cellphone. The incident that

led to the discovery of these text messages is at the heart of this

appeal. Canada testified that he used a locker on the shop floor

at Grossi to store his personal items, including his tools,

clothes, and cellphone, and that he secured the locker with his

personal lock, not a work-issued lock. According to Canada,

“every operator,” such as himself, “had their own locker,”

either in the locker room or shop floor, for personal storage.12

This was a mutually-respected arrangement, Canada said,

among the employees and the company, and that his locker was

no exception.13 Moreover, Canada explained that because

Grossi did not supply tools to its employees, they were required

to bring their own. “That’s why,” Canada emphasized, it was

necessary that operators “got their own lockers” for

safekeeping of their belongings.14 Grossi, on the other hand,

alleges that personal lockers were located elsewhere, and that

Canada was using a locker on the shop floor which was

designated as a company tool locker.

While Canada was on vacation in July, Grossi cut the

padlock off of his locker and searched it. Grossi claimed that

the lockers on the shop floor needed to be moved that day

U.S.C. § 2000(d) et seq. (Count I) and 42 U.S.C. § 1981

(Count II); actual and perceived disability discrimination,

retaliation, hostile work environment, and failure to

accommodate under the ADA, 42 U.S.C. § 12101 et seq.

(Count III); retaliation and unlawful interference under the

FMLA, 29 U.S.C. § 2601 et seq. (Count IV); unlawful access

to stored communications under Pennsylvania’s Wiretapping

and Electronic Surveillance Control Act, 18 Pa. Cons. Stat. §

5741 et seq. (Count V); and invasion of privacy under state

common law (Count VI).

11

JA 153.

12

JA 142.

13

JA 142-43.

14

JA 143.

5

because they were blocking a surveillance camera. Despite

using a forklift to move the lockers, Grossi alleged that all of

the contents of the lockers had to be emptied before moving

them. Because Canada was not at work, a Grossi employee cut

the lock on his locker and removed its contents, including

Canada’s personal items and his cellphone. Osorio saw the

cellphone and testified that she believed that the phone may

have been a company phone “[b]ecause it’s a Samsung” and

Grossi had issued other employees Samsung cellphones.15

According to Osorio, she guessed the phone’s password on her

first try. Later that day, she searched the phone to “find out if

it was a company phone.”16

In her review of the text messages, Osorio found

messages from more than a year earlier in which Canada

appeared to have solicited sex from prostitutes. In comparing

the time records of his text messages to his work hours, Osorio

and John Grossi “determined [in their opinion] that he had

been soliciting prostitutes while at work and clocked in.”17

Concluding that solicitation of prostitutes during company

time violated Grossi’s Employee Conduct and Disciplinary

Action Policy, Grossi immediately fired Canada. That policy

forbids “[u]nlawful conduct which adversely affects the

employee’s relationship on his/her job, fellow employees,

supervisor and/or damages the Company’s property, reputation

or goodwill in the community” and “[i]mmoral or indecent

conduct.”18

Canada, however, claimed that he was not soliciting

prostitutes, never met with any of the women, and the texting

was simply “dumb entertainment.”19 After being terminated,

Canada amended his previously filed complaint to allege that

his termination was retaliation for his complaints of race and

disability discrimination.

The District Court granted summary judgment to Grossi

on all of Canada’s claims. In addressing Canada’s

15

JA 303.

16

JA 303.

17

JA 12 [alteration in original].

18

JA 12; 648-649.

19

JA 12; 147-48.

6

discrimination claims, it stated: Canada “argues that

defendant’s reason for terminating his employment was

pretextual because defendant’s explanation for entering the

locker is “‘unbelievable’ and that Osorio’s reason for going

through the phone ‘to find out if it was a company phone’ is

also ‘unbelievable.’”20 The District Court concluded,

“[h]owever, [that] these arguments relate to the propriety of the

search of plaintiff’s cellphone, not whether defendant

terminated plaintiff’s employment for appearing to solicit

prostitutes while clocked in and on company property.”21 The

District Court found that “[n]o reasonable jury could conclude

that defendant’s proffered nondiscriminatory and

nonretaliatory reason for terminating plaintiff’s employment

was pretextual.”22 This appeal followed.23

II.

Although Canada makes several arguments on appeal,

they all focus on his contention that the stated grounds for his

termination were pretext for illegal retaliation for his

complaints of race and disability discrimination. Accordingly,

we need only address whether the District Court erred in

granting Grossi summary judgment on Canada’s claim that

Grossi’s professed justification for terminating him was pretext

for a retaliatory motive.

“We review the grant or denial of summary judgment

de novo.”24 Our focus is the same as the District Court: We

20

Dist. Ct. Op. at 56; JA 18.

21

Id.

22

Id. The court also concluded that the search was not

improper and that it did not violate Pennsylvania privacy

laws. Id. at 63-65. This appeal does not address the District

Court’s denial of the claims Canada brought under

Pennsylvania state privacy laws because he did not appeal

them.

23

The District Court had jurisdiction under 28 U.S.C. §1331

because the claim arose under federal law. We have

jurisdiction over appeals from all final decisions of the district

courts under 28 U.S.C. § 1291.

24

Cranbury Brick Yard, LLC v. United States, 943 F.3d 701,

708 (3d Cir. 2019).

7

may only affirm a grant of summary judgment if “there is

no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.”25 We “view the facts

in the light most favorable to the non-moving party and [draw]

all reasonable inferences in that party’s favor.”26 “A

factual dispute is material if it might affect the outcome of the

suit under the governing law.”27 A dispute regarding a material

fact is genuine only if the evidence at issue could permit a

reasonable jury to decide in favor of the nonmoving party.28

We only address Canada’s appeal of the District Court’s

grant of Grossi’s motion for summary judgment as to the

retaliation claims under Title VII, § 1981, the ADA, and the

FMLA. In granting the motion as to these claims, the District

Court found that Canada failed to show that Grossi’s

“nonretaliatory reason [for firing him] was pretextual.”29 After

reviewing the evidence, we conclude that the District Court

erred in finding that a reasonable jury could not find Grossi’s

reason pretextual. We thus reverse as to the four retaliation

claims and remand for further proceedings.

1. McDonnell Douglas Framework

25

Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d

Cir.), amended, 979 F.3d 192 (3d Cir. 2020).

26

Scheidemantle, 470 F.3d at 538.

27

Razak, 951 F.3d at 144 (internal quotations omitted)

28

Halpern v. F.B.I., 181 F.3d 279, 287 (2d Cir. 1999).

29

Dist. Ct. Op. at 54-55; JA 16.

8

Retaliation claims are cognizable under Title VII,30 §

1981,31 the ADA,32 and the FMLA.33 In McDonnell Douglas

Corp. v. Green,34 the Supreme Court established the analytical

framework that govern claims of allegations of retaliation for

engaging in protected activity under Title VII. Therefore,

Canada’s retaliation claims, which rely on circumstantial

evidence, are controlled by the three-step burden-shifting

framework established in McDonnell Douglas.35 We have also

applied this framework to other retaliation claims including

those in the ADA, and the FMLA.36

Under the first step of that framework, a plaintiff “must

establish a prima facie case by showing ‘(1) [that she engaged

in] protected employee activity; (2) adverse action by the

30

42 U.S.C. § 2000e–3(a) (“It shall be an unlawful

employment practice for an employer to discriminate against

any of his employees . . . because he has opposed any practice

made an unlawful employment practice by this subchapter, or

because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or

hearing under this subchapter.”).

31

CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457 (2008)

(holding that § 1981 “encompasses claims of retaliation”).

32

42 U.S.C.A. § 12203(a) (“No person shall discriminate

against any individual because such individual has opposed

any act or practice made unlawful by this chapter or because

such individual made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or

hearing under this chapter.”).

33

29 C.F.R. § 825.220(c) (describing the FMLA’s prohibition

against “retaliating against an employee . . . for having

exercised or attempted to exercise FMLA rights.”).

34

411 U.S. 792 (1973).

35

Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d

Cir.2006).

36

Stewart v. Rutgers, The State Univ., 120 F.3d 426, 432 (3d

Cir. 1997) (applying McDonnell Douglas to § 1981 claim);

Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d

Cir. 2003) (applying McDonnell Douglas to ADA retaliation

claim); Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691

F.3d 294, 302 (3d Cir. 2012) (applying McDonnell Douglas

to FMLA retaliation claim).

9

employer either after or contemporaneous with the employee’s

protected activity; and (3) a causal connection between the

employee’s protected activity and the employer’s adverse

action.’”37 Upon making these showings, the employer then,

under step two, has the burden of producing evidence that

“present[s] a legitimate, non-retaliatory reason for having

taken the adverse action.”38 If the employer meets this burden,

the burden then shifts “back to the plaintiff to demonstrate that

‘the employer’s proffered explanation was false, and that

retaliation was the real reason for the adverse employment

action.’”39

Here, the District Court granted summary judgment to

Grossi because it held that Canada failed to successfully rebut

Grossi’s proffered reason for searching his cellphone. In the

rebuttal, Canada attacked Grossi’s motivation for the search,

arguing that its explanation for engaging in the search was

unbelievable. The District Court rejected this argument

explaining that it “relate[s] to the propriety of the search of

[Canada’s] cellphone, not whether [Grossi] terminated

[Canada’s] employment for appearing to solicit prostitutes

while clocked in and on company property.”40 The District

Court therefore reasoned that the motivation behind the search

and Grossi’s explanation for engaging in the search had no

bearing on the pretext analysis. We disagree.

2. An employer’s motivation for investigating an

employee can be relevant to pretext.

To defeat summary judgment at the third McDonnell

Douglas step, 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

37

Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir.

2015) (alteration in original) (quoting Marra v. Phila. Hous.

Auth., 497 F.3d 286, 300 (3d Cir. 2007)).

38

Daniels, 776 F.3d at 193.

39

Id. (quoting Moore, 461 F.3d at 342).

40

Dist. Ct. Op. at 56; JA 18.

10

of the employer’s action.”41 An employee may meet her

burden by “painting the [employer’s articulated reasons] as

weak, implausible, contradictory, or incoherent.”42 Or, for

example, “by showing that the employer in the past had

subjected [the employee] to unlawful discriminatory treatment,

[or] that the employer treated other, similarly situated persons

not of his protected class more favorably.”43

At the summary judgment stage, “[w]e consider ‘a

broad array of evidence,’” including “antagonism by the

employer, inconsistencies in the reasons the employer gives for

its adverse action, and any other evidence suggesting that the

employer had a retaliatory animus when taking the adverse

action.”44 If the plaintiff makes this showing, summary

judgment is improper because the plaintiff has raised “a factual

issue regarding the employer’s true motivation for

discharge.”45

41

Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).

42

Id. at 765.

43

Id.

44

Daniels, 776 F.3d at 196 (quoting LeBoon v. Lancaster

Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007)).

Although these statements in Daniels were made with respect

to the prima facie case of discrimination, we have maintained

that “evidence supporting the prima facie case is often helpful

in the pretext stage and nothing about the McDonnell

Douglas formula requires us to ration the evidence between

one stage or the other.” Farrell v. Planters Lifesavers Co.,

206 F.3d 271, 286 (3d Cir. 2000). See also Jalil v. Avdel

Corp., 873 F.2d 701, 709 n.6 (3d Cir. 1989) (“Although this

fact is important in establishing plaintiff’s prima facie case,

there is nothing preventing it from also being used to rebut

the defendant’s proffered explanation. As we have observed

before, the McDonnell Douglas formula does not

compartmentalize the evidence so as to limit its use to only

one phase of the case.”). Accordingly, our statement that we

can consider “any other evidence” suggesting the employer

acted out of retaliatory animus applies equally to the

Canada’s demonstration of pretext.

45

Jalil, 873 F.2d at 707.

11

We look at the totality of the circumstances to determine

whether an employer’s proffered nondiscriminatory reason is

pretext for a discriminatory motive. We explained the

necessity for this in Aman v. Cort Furniture Rental Corp.46

There, we described how “[d]efendants of even minimal

sophistication will neither admit discriminatory animus or [sic]

leave a paper trail demonstrating it.”47 This is no less true for

employers who retaliate against employees who have filed

complaints of discrimination or accused an employer of racial

bias. Indeed, a contrary rule would not only immunize

employers who retaliate against employees only after they

stumble upon something that would justify their termination; it

would also incentivize such retaliatory forays.

Although the point could certainly have been pled with

greater clarity, Canada alleged “that he was subjected to

pretextual discipline . . . and terminated a second time . . . in

retaliation for his complaints of race discrimination”48 and

“disability discrimination/retaliation.”49 His complaint sets

forth a factual basis for the allegation.

Canada relies in part upon Hobgood v. Illinois Gaming

50

Board in arguing the search of his cellphone was undertaken

only in the hope that it would disclose something that would

justify terminating him in retaliation for filing complaints

alleging illegal discrimination. In Hobgood, the Court of

Appeals for the Seventh Circuit concluded that an employer’s

motive in investigating an employee was relevant to

establishing pretext under Title VII.51 Hobgood worked for the

Illinois Gaming Board and assisted a colleague in filing a

discrimination charge against the Board.52 Once the Board

determined that Hobgood was aiding the fellow employee, it

launched a series of investigations into Hobgood’s behavior.53

46

85 F.3d 1074 (3d Cir. 1996).

47

Id. at 1082 (alteration in original) (quoting Riordan v.

Kempiners, 831 F.2d 690, 697 (7th Cir. 1987)).

48

JA 89.

49

JA 96.

50

731 F.3d 635 (7th Cir. 2013).

51

See id. at 637.

52

Id. at 637, 641.

53

Id. at 638–39.

12

Although many of the initial charges the Board subsequently

brought against Hobgood were not substantiated, the

investigation uncovered evidence that Hobgood had violated a

Board policy.54 Based upon that violation, the Board

terminated Hobgood.55 The district court granted summary

judgment in favor of the Board in Hobgood’s subsequent suit

under Title VII.56 At the third step of McDonnell Douglas, the

court rejected Hobgood’s claim that he was fired in retaliation

for assisting his colleague.57 The court concluded that

Hobgood was not fired because of his protected activity, but

because of the infraction uncovered by the Board’s

investigation.58

The Court of Appeals for the Seventh Circuit reversed.59

Despite the fact that the Board relied on Hobgood’s violation

of policy, the court held that “[t]he initiation and scope of [the]

investigation . . . support[ed] an inference that the investigation

was not prompted by the defendants’ belief that Hobgood had

[violated Board policy], but was instead prompted by the

defendants’ desire to construct a case for Hobgood’s

termination after they discovered that he had been helping [his

friend] with his lawsuit” against the Board.60 The court

reasoned that Hobgood had presented a “‘convincing mosaic’

of circumstantial evidence,” which “when taken as a whole and

viewed in a light favorable to Hobgood’s case, could convince

a reasonable jury that he was the victim of unlawful

retaliation.”61 We believe the same analysis is pertinent here

and would allow a jury to conclude that Grossi’s stated reason

for firing Canada was a pretext intended to thwart any

suggestion of illegal retaliation. The evidence here clearly

supports a conclusion that Grossi was looking for something

54

Id. at 640.

55

Id. at 641.

56

Id.

57

Id. at 637.

58

Id. (“The court reasoned that the Gaming Board fired

Hobgood not because he had assisted Gnutek but because the

‘nature’ of that assistance consisted of providing confidential

information.” Id. at 641).

59

Id.

60

Id. at 646.

61

Id. at 643 (citations omitted).

13

that would justify terminating Canada and that it undertook that

search because of Canada’s complaints of discrimination.

Grossi attempts to distinguish Hobgood by focusing on

several differences between that case and the circumstances

here, including the fact that “[t]he investigator [there]

conducted a far-reaching investigation into all aspects of the

plaintiff’s work practices.”62 Although we agree that there are

distinctions between the circumstances in Hobgood and the

circumstances before us, we believe they are distinctions

without a difference. Moreover, we will not adopt a rule that

would countenance limited retaliatory searches and only

subject an employer to Title VII liability for more sweeping

incursions. For the reasons we have already explained, we

reject a rule that incentivizes employers to dig up reasons to

fire an employee who has engaged in protected activity, and

then immunizes them from suit based upon a subsequent

fortuitous discovery of grounds for termination.

Here, as in Hobgood, there is a “‘convincing mosaic’ of

circumstantial evidence,”63 which, when taken as a whole and

viewed in a light favorable to Canada’s case, could convince a

reasonable jury that he was the victim of unlawful retaliation.64

In other words, the evidence could support a finding that the

search itself was retaliatory.

3. There are genuine issues of fact precluding

summary judgment on Canada’s claim of

retaliation.

As explained above, for Canada to survive summary

judgment at the third McDonnell Douglas step, he must show

that the evidence would allow a jury to reasonably “(1)

disbelieve [Grossi’s] articulated legitimate reasons; or (2)

believe that an invidious discriminatory reason was more likely

than not a motivating or determinative cause of [Grossi’s]

action.”65 The evidence here could allow a reasonable jury to

conclude either or both. He met that burden by showing

Grossi’s purported reasons for searching his cell phone are

62

Appellee Br. at 20.

63

Hobgood, 731 F.3d at 643.

64

See id.

65

Fuentes, 32 F.3d at 764.

14

weak, implausible, contradictory, incoherent, and more likely

motivated by retaliation.66 Moreover, he has shown that Grossi

“treated other, similarly situated persons not of his protected

class more favorably.”67 Accordingly, summary judgment is

inappropriate.

The first piece of evidence that unravels Grossi’s

expressed reasons for searching the phone is its own employee

conduct policy. The District Court explained how this policy

bolsters Grossi’s argument because it allows for searches of an

employee’s property. But the District Court failed to

appreciate that this search actually violated that policy. The

policy allows for searches if Grossi “has reasonable suspicion

that an individual is involved in misconduct on Company

premises.”68 However, while Grossi alleges to have moved

Canada’s locker because it obstructed the view of a

surveillance camera, Grossi employees could not provide any

legitimate basis for searching Canada’s locker, let alone the

cellphone inside the locker.

This is clear from the testimony from Grossi

management, contradicting any reliance on this policy.

Edward Thompson, Canada’s direct supervisor, “testified that,

prior to plaintiff’s termination, he did not have any reason to

suspect that [Canada] committed any type of misconduct on

company premises.”69 Similarly, Osorio, Grossi’s director of

human resources, “testified that she d[id] not remember

whether ‘there was any reason to suspect that [Canada] was

involved in any type of misconduct on company premises

before his separation.’”70 We consider this in context with the

evidence that John Grossi, one of the company’s owners,

approached Canada threatening that, if he did not drop the

lawsuit, Grossi would “just have other African-American

employees say the opposite of what [Canada’s] saying.”71 The

threat, made to intimidate Canada into dropping his lawsuit,

further weakens Grossi’s argument.

66

See id. at 765.

67

See id.

68

JA 11.

69

JA 11–12.

70

JA 11.

71

JA 153.

15

Canada has also shown the overall weakness of Grossi’s

argument that the text messages were searched to see if the

phone was Grossi’s property. Osorio testified in her deposition

that the cellphone they found was a Samsung (the kind Grossi

issued to employees) and cellphones had recently “gone

missing.”72 But the veracity of this claim is suspect. Even

assuming there is some relevance to whether this was a

company phone, as Canada points out, there were many easier,

less intrusive, and far more reliable and appropriate ways for

Osorio to determine whether the phone inside the locker was a

company phone. For example, Grossi keeps a running list of

names of employees who were issued company phones, along

with the phones’ respective serial numbers and device IDs.

She could have easily located the serial number or device ID

of Canada’s phone and cross-referenced it with the data on the

list. Thus, it is not at all clear on this record how text messages

could establish if the cellphone was a company phone.

A jury is much more likely to view that kind of search

as indicative of looking for something that would justify firing

Canada rather than trying to figure out if it was a company

phone. In addition, Canada claims that his phone was not the

same Samsung model that Grossi issued to its employees. That

would further support a finding that Grossi employees were

trying to dig up dirt on Canada and not trying to ascertain if it

was a company phone. Canada also asserts that Osorio would

have known this because “she assists with deployment of

company phones to employees and,” as mentioned before,

“maintains a phone list identifying names, numbers, and device

IDs for everyone who has a company phone.”73

Despite the lack of a coherent rationale for searching the

phone, Osorio searched through more than a year’s worth of

personal text messages before discovering the messages for

which Canada was allegedly fired. The breadth of this search

alone undermines the plausibility that Grossi was trying to see

if the phone belonged to the company. As we have explained,

a jury could find that reading text messages from this far back

in time is more suggestive of a search to find an excuse to fire

72

JA 303.

73

Appellant Br. at 46 (citing JA 284-85, 344-45).

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Canada in retaliation for his activity protected under Title VII,

§ 1981, the ADA, and FMLA.

There is also evidence to support a finding that Grossi

treated other employees more favorably. For example, Osorio

testified that she was unaware of any other such searches of

company lockers and had never searched any other employee’s

cellphone or personal items. Moreover, an argument can be

made that the lockers did not require emptying before being

moved, as alleged by Grossi, since a forklift was used.

III.

For these reasons, we reverse the District Court’s grant

of summary judgment to Grossi on Canada’s retaliation claims

under Title VII, § 1981, the ADA, and the FMLA; and we

remand to the District Court for further proceedings consistent

with this opinion.

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