                                                                 NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 12-3782
                                         ___________

                                         ROBERT L. GARY,
                                            Appellant

                                                  v.

            GOURI NANDAN DBA HOLIDAY INN CENTER CITY ALLENTOWN;
                   INTERCONTINENTAL HOTELS GROUP, (I.H.G.);
                    RICHARD C. LOBACH, GENERAL MANAGER
                      ____________________________________

                       On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                               (D.C. Civil No. 5:10-cv-02082)
                         District Judge: Honorable Juan R. Sánchez
                        ____________________________________

                      Submitted Pursuant to Third Circuit LAR 34.1(a)
                                        March 1, 2013
              Before: SMITH, CHAGARES, and HARDIMAN ∗, Circuit Judges

                                (Opinion filed: March 4, 2013)
                                          _________

                                           OPINION
                                           _________

PER CURIAM

         In his amended complaint, pro se plaintiff Robert Gary accused the defendants of




∗
    Judge Hardiman has been substituted for Judge Weis.
terminating his employment based on an impermissible, retaliatory racial motivation. 1 The

complaint stated a variety of causes of action, sounding under 42 U.S.C. §§ 1981, 1983, 1985–

86, and Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. The District Court

dismissed the §§ 1983, 1985, and 1986 claims, reasoning that Gary had failed to allege the

requisite state action or had inadequately pleaded a conspiracy. Following discovery, summary

judgment was granted on the remainder of the claims in favor of the defendants. Gary timely

sought review. 2

       We have reviewed the District Court record and will affirm its judgment.                For

substantially the reasons stated in its dismissal orders, the District Court properly dismissed

Gary’s §§ 1983, 1985, and 1986 claims. With regard to summary judgment, we conclude that,

while the factual record below does contain inconsistencies and disputes over facts, none of the

details in contention is “material” for the purposes of summary judgment because none would

affect the outcome of the suit under governing law. See Haybarger v. Lawrence Cnty. Adult

Prob. & Parole, 667 F.3d 408, 412 (3d Cir. 2012). At the very least, and assuming without

deciding that Gary established a prima facie case of discrimination, the defendants pointed to a

legitimate, nondiscriminatory reason for his firing—Gary’s use of profanity in front of hotel

guests, a “[c]ritical offense[] . . . justif[ying] immediate termination”—and Gary thereafter

failed to adduce evidence from which a reasonable jury could conclude “that the employer’s
1
 Gary also sued the Pennsylvania Human Relations Commission and the EEOC in a separate action.
We recently affirmed the District Court’s judgment in that case. See generally Gary v. Pa. Human
Rels. Comm’n, No. 12-2257, 2012 U.S. App. LEXIS 19758 (3d Cir. Pa. Sept. 20, 2012) (unpublished
per curiam).
2
  We have jurisdiction under 28 U.S.C. § 1291, and conduct plenary review of orders granting
summary judgment and dismissing claims under Fed. R. Civ. P. 12(b)(6). Atkinson v. Lafayette Coll.,
460 F.3d 447, 451 (3d Cir. 2006).
                                                2
proffered reasons were merely a pretext for discrimination, and not the real motivation for the

unfavorable job action.” Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003) (per

curiam); see also id. at 799–800 (discussing further the showing required). The same test

applies to Gary’s retaliation and § 1981 claims, which fail for the same reason. See Moore v.

City of Phila., 461 F.3d 331, 342 (3d Cir. 2006); McKenna v. Pac. Rail Serv., 32 F.3d 820, 825

n.3 (3d Cir. 1994). Having so decided, we need not address the District Court’s alternative

rationales for granting judgment in favor of defendant IHG, including its decision to sanction

Gary for discovery failures by dismissing some of his claims. See Smith v. Phillips, 455 U.S.

209, 215 n.6 (1982). Finally, the District Court did not abuse its discretion in declining to

allow Gary to further amend. See Connelly v. Steel Valley Sch. Dist., No. 11-4206 , ___ F.3d

___, 2013 U.S. App. LEXIS 1882, at *17 (3d Cir. Jan 24, 2013).

      Thus, for the foregoing reasons, the judgment of the District Court will be affirmed.




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