                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-4-2005

Lewis v. Kinkos of Ohio
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1991




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"Lewis v. Kinkos of Ohio" (2005). 2005 Decisions. Paper 1252.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1252


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 04-1991
                                   ________________

                                   MARK A. LEWIS,
                                            Appellant

                                             v.

                                  KINKO’S OF OHIO,
                                  Willow Grove Branch
                                   ________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                            (E.D. Pa. Civ. No. 99-cv-03028)
                     District Judge: Honorable R. Barclay Surrick
                                  ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 15, 2005

             BEFORE: RENDELL, AMBRO and FUENTES, Circuit Judges

                                  (Filed:   May 4, 2005)

                                   ________________

                                       OPINION
                                   ________________

PER CURIAM

      Appellant Mark Lewis, proceeding pro se, appeals an order of the United States

District Court for the Eastern District of Pennsylvania granting summary judgment for his

former employer, Kinko’s of Ohio, in his action alleging race discrimination in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, and the

Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. §§ 951-963. We will affirm the

District Court’s order.

       In October 1994, Lewis began working at Kinko’s Willow Grove, Pennsylvania

location. He was fired after a confrontation with a customer in February 1996. Lewis,

who is African American, filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”) alleging disparate disciplinary treatment, wage

discrimination, and unlawful termination based upon his race. The EEOC issued Lewis a

right to sue letter, and he filed his present complaint and proceeded pro se.1

       Regarding his disparate disciplinary treatment claim, Lewis testified at his

deposition that he received a warning for installing non-standard fonts on Kinko’s

computer system, that he was written up for this conduct, and that he was treated more

severely than a Caucasian employee who engaged in similar conduct. Lewis, however,

stated in an interrogatory response that any disciplinary actions that took place were

“cleared up and removed from [his] file,” Supp. App. at 240, and testified that the

incidents were misunderstandings. The District Court concluded that Lewis failed to

establish a prima facie case of disparate treatment based upon his race because he did not

suffer an adverse employment action. See Jones v. Sch. Dist. of Phila., 198 F.3d 403, 411

(3d Cir. 1999) (stating prima facie case requires some form of adverse employment action



  1
   The District Court ordered that counsel be appointed, but Lewis declined
representation.

                                              2
by an employer).

       In support of his wage discrimination claim, Lewis testified that he had believed he

would be paid more than $7.00 per hour when he started working. He negotiated a wage

of $8.00 per hour, and the payroll records reflect that in December 1995, his wage was

$8.67 per hour. Lewis stated that a Caucasian employee, who misrepresented his

knowledge of desktop publishing, was hired at a rate of $9.00 per hour in his department.

This employee ultimately was “[p]ushed out the door.” Supp. App. at 354. Lewis also

stated that another Caucasian employee received a pay increase from $7.50 to $8.25 per

hour after he went from part-time to full-time status, and that a third Caucasian employee

told him that he received a raise after his father called the store manager. The District

Court held that Lewis failed to establish a prima facie case of discrimination because he

had not shown that the employees he identified were similarly situated to him. See

Watson v. Eastman Kodak Co., 235 F.3d 851, 857-58 (3d Cir. 2000) (holding that a

plaintiff who did not show that he was paid at a lower rate than similarly situated

employees could not survive summary judgment).

       Finally, on his wrongful termination claim, Lewis testified that he was involved in

a confrontation with a belligerent customer. Lewis approached the customer, who was in

a non-public part of the store, because he was concerned the customer might steal

something. The customer used racial epithets, and insulted and threatened Lewis. Lewis

stated, “I am 245 pounds of all man. There is not one ounce of me scared of you, but

because I have responsibilities, you are allowed to disrespect me this way . . . .” Supp.

                                              3
App. at 179. Lewis was emotional and loud during the incident, but denied yelling at the

customer. Lewis went outside several times, and when he returned the customer

continued to harass him. The customer eventually left the store. The next day, the store

manager, who had started working there that day, fired Lewis based upon her

conversations with Lewis’ co-workers, the customer and the former store manager.

Lewis testified that the manager believed that he grabbed the customer.2

       The District Court concluded that Lewis had not established a prima facie case of a

racially discriminatory discharge because he submitted no evidence showing that he was

qualified for his position. See Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 638

(3d Cir. 1993) (To make a prima facie showing of racially discriminatory discharge,

plaintiff must demonstrate, among other things, that he or she was qualified for the

position.). Even assuming Lewis established a prima facie case, the District Court found

that Kinko’s had a legitimate, nondiscriminatory reason for firing him based upon his

behavior during the confrontation, and Lewis had not come forward with any evidence to

doubt that reason. See Jones, 198 F.3d at 410 (setting forth McDonnell Douglas burden-

shifting framework applicable in race discrimination cases). The District Court noted that

Lewis had told the customer that he was not afraid to fight him, and that Kinko’s 1996

Co-Worker Handbook lists “[o]bscene, abusive, intimidating, or threatening

language/behavior with customers” as grounds for immediate dismissal. Supp. App. at

  2
   Lewis also testified that the former store manager “barely wanted to put his hand to
shake mine,” Supp. App. at 203, did not discuss job responsibilities with him, and did not
give him a paycheck until he had worked there for almost a month.

                                             4
250.

       This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our

standard of review is de novo. Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313,

318 (3d Cir. 2000).

       In his brief, Lewis argues that the District Court did not consider all of the

evidence, and that there are issues of fact regarding Kinko’s reasons for its adverse

employment actions. He refers to documents that he submitted to the District Court

Judge, but did not file with the District Court Clerk. This Court may not consider

material on appeal that is outside the District Court record. In re Capital Cities/ABC,

Inc.’s Application for Access to Sealed Transcripts, 913 F.2d 89, 96 (3d Cir. 1990). Even

if these documents could be considered, they do not establish that a genuine issue of

material fact exists for trial. The District Court properly granted Kinko’s motion for

summary judgment. Accordingly, we will affirm the District Court’s order.3




  3
   To the extent Lewis also appeals the District Court’s denial of his motion for
enlargement of time for discovery, he has not shown that the District Court abused its
discretion. See Pacitti v. Macy’s, 193 F.3d 766, 777 (3d Cir. 1999) (stating standard of
review). Finally, Lewis’ motion to dismiss Kinko’s brief is denied.

                                              5
