                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-26-2009

Schwartzberg v. Mellon Bank NA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1110




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-1110


                      ALBERT AVRAHAM SCHWARTZBERG,
                                                Appellant

                                            v.

                                MELLON BANK, N.A.




                   On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                                 (Case No. 06-cv-01006)
                  District Judge: The Honorable Terrence F. McVerry


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   January 6, 2009

            Before: FUENTES and FISHER, Circuit Judges, and PADOVA,
                              Senior District Judge *

                                (Filed: January 26, 2009)




                                      ___________


   *
      Hon. John R. Padova, Senior District Judge for the Eastern District of Pennsylvania,
sitting by designation.
                                OPINION OF THE COURT
                                     ___________

PADOVA, Senior District Judge

       Appellant Avraham Schwartzberg sued his former employer, Mellon Bank, N.A.

(“Mellon”), asserting claims of religious discrimination and retaliation under Title VII

and the Pennsylvania Human Relations Act. He now appeals a District Court order

granting summary judgment in Mellon Bank’s favor on these claims. Inasmuch as we

write this memorandum opinion only for the convenience of the parties, who are familiar

with the facts, we need not reiterate those facts, which are set forth at great length in the

District Court’s memorandum opinion.

        Schwartzberg is an Orthodox Jew, who holds a religious belief that homosexuality

is immoral. On two occasions, Schwartzberg sent correspondence to employees at

Mellon, expressing his beliefs about homosexuality in strident terms. After the first such

correspondence, Mellon issued a warning to Schwartzberg that such conduct violated

Mellon’s harassment policy and would not be tolerated. After the second such

correspondence, he was given a “Final Written Warning,” which notified him that any

other violations of Mellon’s policies or procedures could result in further corrective

action, including termination of his employment. Thereafter, Schwartzberg, who worked

in Mellon’s call center, was found sleeping on the job on three separate occasions. He

was advised that this conduct was serious and that, given his Final Warning status, any

subsequent violations of Mellon's policies could lead to termination. The very next day,

                                               2
however, Schwartzberg was again found sleeping on the job and his employment was

terminated.

       Schwartzberg takes the position in his suit against Mellon that the issuance of the

Final Written Warning constituted discrimination against him on account of his religious

beliefs, and that it was the existence of this Final Written Warning that led to his

termination, such that his termination was also discriminatory. On summary judgment,

the District Court analyzed Schwartzberg’s religious discrimination claim as a “failure to

accommodate” claim, which requires proof that the plaintiff holds a religious belief that

conflicts with an employer requirement. Finding that there was no evidence of any

conflict between Schwartzberg’s religious beliefs, i.e., his belief that homosexuality is

immoral, and any employer requirement, including Mellon’s policy against conduct that

constitutes harassment, the District Court concluded that Schwartzberg had failed to make

out a prima facie case of religious discrimination. With respect to Schwartzberg’s

retaliation claim, the District Court also concluded that the record did not contain

evidence to support a prima facie case. As it explained, one element of the prima facie

case for retaliation is proof of a causal link between protected activity and adverse

employment action and, in this case, there was no evidence that Mellon was even aware

that Schwartzberg had complained about religious discrimination until after it had

discovered him sleeping on the job the first time and had warned him (a second time) that

he could be terminated for any further violations. The District Court further noted that,



                                              3
even if a prima facie case of retaliation had been developed, Schwartzberg failed to rebut

the undisputed record evidence that the adverse action taken against him was based on

non-discriminatory and non-retaliatory reasons.

       We review orders granting summary judgment de novo, applying the same

standard that is applied by the District Court. Int’l Assoc. Local 19 v. Herre Bros., Inc.,

201 F.3d 231, 239 (3d Cir. 1999). Pursuant to Federal Rule of Civil Procedure 56, it is

appropriate to grant summary judgment when the pleadings, depositions, answers to

interrogatories, admissions, and affidavits show that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter of law.

       On appeal, Schwartzberg argues, among other things, that the District Court erred

in granting judgment in Mellon’s favor on his religious discrimination claim based on his

alleged failure to establish the elements of a prima facie case, when he had direct

evidence of discrimination. He has, however, identified no direct evidence of

discrimination in the summary judgment record, and we can discern none. Schwartzberg

also appears to argue that the District Court should not have analyzed his claim using only

the “classic legal framework of religious discrimination based on lack of

accommodation.” Br. of Appellant at 32. However, Schwartzberg himself largely

characterized his claim as a lack of accommodation claim in his summary judgment

papers and he has not presented evidence that would permit him to survive summary

judgment on a disparate treatment theory.



                                              4
       We have considered all other arguments made by Schwartzberg on appeal and

conclude that no further discussion is necessary. Indeed, after careful review of the

appellate briefs and appendices submitted by the parties, we find no basis for disturbing

the District Court’s rulings. We will therefore affirm the judgment for substantially the

same reasons as those set forth in District Judge McVerry’s memorandum opinion dated

January 8, 2008.




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