                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-6-2007

Witcher v. Sodexho Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2166




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                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 07-2166
                                   ________________

                                  GEORGE WITCHER,
                                               Appellant
                                        vs.

                                 SODEXHO, INC.
                      ____________________________________

                    On Appeal From the United States District Court
                              For the District of Delaware
                             (D.C. Civ. No. 05-cv-00205)
                      District Judge: Honorable Sue L. Robinson
                    _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 5, 2007
              Before: FISHER, ALDISERT and WEIS, CIRCUIT JUDGES.

                               (Filed: September 6, 2007)

                               _______________________

                                      OPINION
                               _______________________

PER CURIAM.

              George Witcher, acting pro se, appeals an order of the United States District

Court for the District of Delaware granting summary judgment in favor of Sodexho, Inc.,

on claims of age discrimination and retaliation in violation of the Age Discrimination in



                                             1
Employment Act (“ADEA”) and the Delaware Discrimination in Employment Act

(“DDEA”).1

              Witcher began working as a delivery driver for Sodexho in April of 2003,

when he was 58 years old. He resigned on June 23, 2005, at the age of 60. Witcher’s

complaint alleges that during this time, Sodexho discriminated against him on the basis of

age and retaliated against him after he complained of this treatment. In support of the

discrimination claims, he points to three incidents: a conversation with his supervisor in

late 2003 in which his age was mentioned as a factor that should have led Witcher to act

more responsibly and to keep co-workers in line; a conversation with other managers in

March of 2004 during which Witcher was asked once whether he was “just too old for the

job” during a discussion of his eyesight and ability to drive the delivery van; and a June

2004 confrontation during which Witcher cursed at another supervisor, was escorted off

the premises by security personnel, and was suspended with pay for one week while

Sodexho conducted an investigation. Witcher identifies as retaliatory four events: the



   1
      The District Court held that Witcher’s state law claims were barred under 19 Del. C.
§ 714(c) because he had elected to seek federal remedies in a federal forum. See
Memorandum Opinion of March 26, 2007 (citing Wilcoxon v. Red Clay Consol. Sch.
Dist., 437 F. Supp. 2d 235, 246-47 (D. Del. 2006)). This Court has not directly addressed
the question of whether plaintiffs may bring an action in federal court under both the
ADEA and the DDEA. We need not decide the issue here, however, as appellant’s claims
would fail under the DDEA for the same reasons the ADEA claims do not survive
summary judgment. See 19 Del. C. § 711(a)(1)(“It shall be an unlawful employment
practice for an employer to . . . discriminate against any individual with respect to
compensation, terms, conditions or privileges of employment because of such
individual’s . . . age.”).

                                             2
failure to receive a scheduled raise in June of 2004; being required to work for two days

in September of 2004 while the workplace was under construction and there was danger

of asbestos exposure; receiving a written warning for failing to attend work as scheduled

in February 2005; and a seven week delay in repairing his delivery van. The District

Court found this evidence insufficient to sustain either claim. We agree.

              We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and undertake

plenary review of the District Court’s grant of summary judgment. See Cardenas v.

Massey, 269 F.3d 251, 254 (3d Cir. 2001). Summary judgment is appropriate when there

is no genuine issue of material fact to be resolved at trial and the moving party is entitled

to judgment as a matter of law. See id.; Fed. R. Civ. P. 56(c). In making the

determination, we draw all reasonable inferences in favor of the non-moving party. See

Cardenas, 269 F.3d at 254.

              The ADEA makes it unlawful for an employer to “discriminate against any

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

employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1).2 Where, as here,


   2
      To the extent that the complaint in this case can be read to state a claim for hostile
work environment or constructive discharge, these claims fail. Appellant has not
introduced evidence that his “workplace [was] permeated with discriminatory
intimidation, ridicule, and insult that [was] sufficiently pervasive to alter the conditions of
[his] employment.” Kassner v. 2nd Avenue Delicatessen Inc., ___ F.3d ___, No. 05-
4237, 2007 WL 2119769, at *6 (2nd Cir. July 24, 2007)(citations omitted). Nor has he
established that “the conduct complained of would have the foreseeable result that
working conditions would be so unpleasant or difficult that a reasonable person in the
employee’s shoes would resign.” Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079
(3d Cir. 1992)(citations omitted).

                                               3
there is no direct evidence of discrimination, age discrimination claims are analyzed

under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). See Fasold v. Justice, 409 F.3d 178, 184 (3d Cir. 2005). In order to meet his

initial burden of establishing a prima facie case of discrimination, appellant must present

evidence that he “(1) was over forty years old at the time of the adverse employment

decision; (2) is qualified for the position in question; (3) suffered from an adverse

employment decision; and (4) that his employer replaced him with someone sufficiently

younger to permit a reasonable inference of age discrimination.” Id. at 184-85 (citing

Potence v. Hazelton Area Sch. Dist., 357 F.3d 366, 370 (3d Cir. 2004); Anderson v.

Consol. Rail Corp., 297 F.3d 242, 249 (3d Cir. 2002)).

              We agree with the District Court that Witcher failed to establish a prima

facie case because he has not shown that he suffered from an adverse employment

decision. Appellant has not suggested that Sodexho fired or demoted him. See Turner v.

Schering-Plough Corp., 901 F.2d 335, 342 (3d Cir. 1990). He has not alleged that his pay

was reduced, he was suspended without pay, or suffered any other reduction in benefits or

change in employment conditions. See Mondzelewski v. Pathmark Stores, Inc., 162 F.3d

778, 788 (3d Cir. 1998). Rather, Witcher has identified two conversations in which his

age was mentioned in a way that might be interpreted as negative or questioning of his

ability to perform his duties. While appellant may have been upset by these comments or

even driven into depression, as he alleges, these isolated comments are legally insufficient

to constitute an adverse employment action. Cf. Faragher v. City of Boca Raton, 524

                                              4
U.S. 755, 788 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Nor does the

June 2004 incident provide sufficient support for appellant’s claim. Even accepting as

true appellant’s contention that Sodexho’s policies governing language use and

confronting supervisors were unevenly enforced, and even if he could show that he was

singled out because of his age, in the end, the company did not discipline him, suspend

him without pay, or otherwise sanction him. Because Witcher did not introduce

sufficient evidence to make out a prima facie case of discrimination, the District Court

properly granted summary judgment on this claim.

              Retaliation claims relying on indirect evidence are also analyzed under

McDonnell Douglas. See Fasold, 409 F.3d at 188-89. To establish a prima facie case of

retaliation, appellant must show “(1) that s/he engaged in a protected employee activity;

(2) that s/he was subject to adverse action by the employer either subsequent to or

contemporaneous with the protected activity; and (3) that there is a causal connection

between the protected activity and the adverse action.” Id. (citing Fogleman v. Mercy

Hosp., Inc., 283 F.3d 561, 467-68 (3d Cir. 2002)). With regard to the second prong,

plaintiffs are not required to show that the adverse action by the employer was so extreme

as to affect the terms and conditions of employment; however, plaintiffs must still

demonstrate that the alleged retaliatory actions were “materially adverse.” See Moore v.

City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006).

              Unlike the District Court, we are not entirely convinced that Witcher failed

to make out a prima facie case of retaliation. He arguably engaged in a protected

                                             5
employee activity by making his claims of age discrimination known to Sodexho on at

least two occasions. He also arguably suffered adverse employment actions in having a

scheduled pay increase delayed for ten months3 and by being forced to work in an unsafe

construction site, while other employees were excused from doing so.4 While there is no

direct evidence connecting these actions to the protected employment activity, temporal

proximity alone will sometimes suffice to satisfy the third prong in the prima facie case.

See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279-80 (3d Cir. 2000).

              Assuming arguendo that Witcher established a prima facie case of

retaliation, the burden would shift to the defendant to articulate a legitimate nonretaliatory

reason for the adverse employment actions. See Moore, 461 F.3d at 342. Here, Sodexho

has met this burden. It introduced evidence that the delay in implementing the scheduled

pay increase was due to management changeovers. The fact that Witcher received

positive reviews and a timely pay increase in 2005, following further allegations of age

discrimination by Witcher, bolsters appellee’s claim that there was no retaliatory motive

for the delay in 2004. Defendant’s evidence also suggests that Witcher was not, in fact,

required to work in an unsafe area during construction and that other Sodexho employees


   3
      As the District Court noted, the pay increase, once approved, was made retroactive
to the scheduled date. The lengthy delay alone, however, may have constituted a
materially adverse action.
   4
     We agree with the District Court that neither the allegation that appellant received a
written notice after failing to come to work in February of 2005 nor the contention that
Sodexho did not fix his delivery van promptly rose to the level of a materially adverse
action.

                                              6
were also assigned to work at the site during construction.

              In the face of the nonretaliatory reasons given by Sodexho, the burden shifts

back to Witcher, who must be able to convince a factfinder that the proffered explanation

was false and that retaliation was the real reason for the adverse action. See Moore, 461

F.3d at 342. Here, he has not shown a pattern of severe harassment, direct evidence

suggestive of retaliation, or any other evidence to suggest that the reasons explanations

put forward by Sodexho were pretextual. Contra id. at 346-49. Because appellant failed

to meet his ultimate burden, it was appropriate to grant summary judgment in favor of

appellee on the retaliation claims.

              Accordingly, we will affirm the judgment of the District Court.




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