                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 10-2261
                                    ____________

                                 SAMIR M. MOUSSA,
                                             Appellant

                                          v.

               PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE;
                    STACY GEYER, an agent and employee of the
                        PA Department of Public Welfare
                                    ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                            (D.C. Civil No. 07-cv-00009)
                  District Judge: Honorable Sean J. McLaughlin
                                   ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 11, 2011
                                   ____________

              Before: SCIRICA, BARRY and VANASKIE, Circuit Judges

                           (Opinion Filed: January 21, 2011)
                                    ____________

                                      OPINION
                                    ____________

BARRY, Circuit Judge

      Samir Moussa was terminated as a staff physician at the Polk Center, a medical

facility operated by the Pennsylvania Department of Public Welfare (“DPW”), after an
investigation revealed his repeated sexual harassment of female co-workers. Moussa

brought suit in the District Court, alleging that his termination resulted from

discrimination on the basis of race, national origin, and sex, and that it was in retaliation

for an earlier lawsuit. The Court granted Defendants’ summary judgment motions in a

thorough opinion. We will affirm for substantially the reasons articulated by the Court.

                         I. Jurisdiction and Standard of Review

       The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367, and we

have jurisdiction under 28 U.S.C. § 1291. We review a district court’s grant of summary

judgment de novo, viewing the underlying facts in the light most favorable to the party

opposing the motion. Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). A

district court’s grant of summary judgment is proper only if “the movant shows that there

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

matter of law.” Fed. R. Civ. P. 56(a).

                                      II. Background

       Because we write primarily for the parties, we recite only those facts essential to

our disposition of this appeal. Moussa, who is of Egyptian origin, began employment at

the Polk Center on February 10, 1986. In 1999, his employment was terminated based on

allegations that he had been suturing patients without anesthesia. After the charges were

dismissed and he was reinstated, he brought a lawsuit alleging race and national-origin

discrimination and received a settlement following a favorable jury verdict.


                                              2
       Years later, on August 4, 2005, a physical therapist named Colleen Dahl filed an

Equal Employment Opportunity Discrimination Complaint alleging that Moussa had tried

to kiss her both (1) earlier that day, and (2) shortly before Memorial Day. The complaint

sparked an investigation, during the pendency of which Moussa was suspended without

pay. In sending a letter confirming Moussa’s suspension, Michael Hanwell, a

Supervisory Analyst with the Bureau of Human Resources, Labor Relations, suggested to

his supervisor that he “may recall Dr. Moussa” from the earlier lawsuit. (App. 281.)

       The investigation revealed two other female co-workers who claimed that Moussa

had sexually harassed them: Ellen Leakes alleged that Moussa had once “slammed her

against the wall” and “had his tongue down her throat while he attempted to remove her

clothing,” and that the encounter left her bruised (id. 212), and Julianna Lewis alleged

that Moussa had once “grabbed [her] and kissed [her] on [the] lips.” (Id. 252.) Moussa

consistently denied these allegations, suggesting that they were motivated by greed or

jealousy.

       During the investigation, on November 5, 2005, Defendant Stacey Geyer was hired

as the director of the Polk Center. On December 20, 2005, a conference call was held

among Geyer; Hanwell; and Nancy Murray, Geyer’s direct supervisor, during which the

investigation was discussed. The following day, Hanwell wrote to Geyer, stating that

Polk would need to submit a “request to remove” to effectuate Moussa’s termination, and

Geyer confirmed that it would be done. On December 23, 2005, DPW issued a Request


                                             3
to Effect Action, concluding that “the three employees are credible and that the conduct

described by them actually occurred.” (Id. 232.)

       On December 29, 2005, Moussa was informed that he was terminated effective

January 4, 2006. The termination letter was signed by Geyer, who testified at her

deposition that she had no direct involvement with the investigation and was unfamiliar

with the accusations against Moussa but signed the letter because she was instructed to do

so by Murray.

       Moussa filed suit on January 19, 2007. The District Court entered summary

judgment in favor of Defendants on March 31, 2010, and Moussa timely appealed.

                                     III. Discussion

       Moussa’s primary contention on appeal is that the District Court erred in

dismissing his claims of race and national origin discrimination. Specifically, he argues

that the different discipline that two other employees received for workplace misconduct

would allow a jury to conclude that he was discriminated against because of his race and

national origin.1

       In the absence of direct evidence, claims of discrimination under Title VII and

Section 1983 are analyzed pursuant to a familiar burden-shifting framework.2 See

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Stewart v. Rutgers, 120 F.3d


1
  Moussa abandoned his claim of sex discrimination at oral argument before the District
Court.
2
  Although Moussa had also brought claims of discrimination under 42 U.S.C. § 1981,
Moussa does not appeal the District Court’s conclusion that there is no private right of
                                            4
426, 432 (3d Cir. 1997) (“Our application of the McDonnell Douglas-Burdine framework

is applicable to Stewart’s allegation of racial discrimination under 42 U.S.C. § . . . 1983.”

(footnote omitted)). Under that framework, if a plaintiff successfully establishes a prima

facie case of discrimination, the burden shifts to the defendant to produce a legitimate,

nondiscriminatory reason for its action. The plaintiff must then respond by showing that

the defendant’s proffered reason was pretextual. To prove that an explanation is

pretextual, a plaintiff must “cast sufficient doubt upon each of the legitimate reasons

proffered by the defendant so that a factfinder could reasonably conclude that each reason

was a fabrication or allow the factfinder to infer that discrimination was more likely than

not a motivating or determinative cause of the adverse employment action.” Wishkin v.

Potter, 476 F.3d 180, 185 (3d Cir. 2007) (alterations and internal quotation marks

omitted).

       In this case, the District Court presumed that Moussa had established a prima facie

case of discrimination but held both that (1) Defendants had articulated a legitimate,

nondiscriminatory reason for his termination (namely, his repeated sexual harassment of

his co-workers), and (2) he had failed to raise an issue of fact with respect to whether this

reason was pretextual.

       In an attempt to show pretext, Moussa had pointed to two white males who were

disciplined less harshly after also receiving complaints of workplace misconduct. See

Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (providing that a plaintiff may show


action against a state actor under that statute.5
pretext by demonstrating “that the employer treated other, similarly situated persons not

of his protected class more favorably”). The District Court, however, ruled that neither

comparator was similarly situated. We agree.

       The first comparator identified by Moussa, Michael Winger, was accused of

discussing his sexual experiences in the office and once placing his hands on a female co-

worker’s hips and pulling her towards him. After an investigation that included eleven

witness interviews, DPW concluded that the allegations were unsubstantiated, and the

complaint was dismissed. The second comparator, Curt Anderson, was found to have

been engaged in a consensual sexual relationship with a subordinate employee. Although

he was suspended during the investigation, his suspension was limited to thirty days after

he brought a union grievance. He was ultimately demoted but not terminated.

       The District Court correctly concluded that neither comparator was “similarly

situated,” such that the difference in the discipline that they received could support a

jury’s finding of pretext. As it observed, the allegations against Winger were

substantially less serious than the allegations against Moussa, and a thorough

investigation concluded that they were unfounded. And while Anderson’s relationship

with a subordinate may have been improper, there is no suggestion that it was

involuntary, and certainly no suggestion that it involved the application of physical force.

Insofar as DPW’s investigation concluded that Moussa had repeatedly approached

women and forcibly attempted to kiss them against their will, the Court correctly held that


                                              6
the comparators were insufficiently similar to permit a jury to conclude that Defendants’

proffered reason for terminating him was pretextual.3

                                     IV. Conclusion

       We will affirm the judgment of the District Court.




3
  Moussa raises two other arguments on appeal, neither meritorious. First, he suggests
that Geyer’s “mendacity” at her deposition would allow a fact finder to conclude that she
acted out of retaliatory intent. In our judgment, a jury could only interpret Geyer’s
deposition transcript as evidence of retaliatory intent by engaging in rank speculation;
Geyer was hired late in the investigation that led to Moussa’s termination, and it is
unsurprising that she recalls few of its details. Second, Moussa argues that Geyer is liable
under Section 1983 as the “cat’s paw” because, even if she did not have discriminatory
intent, she was the vehicle through which the discriminatory intent of others was realized.
Insofar as Moussa has failed to proffer evidence from which a fact finder could conclude
that anyone at DPW acted with discriminatory or retaliatory intent, we need not consider
whether the cat’s paw theory is cognizable under Section 1983.
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