                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-22-2006

Morrison v. Carpenter Tech Corp
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1922




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                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEAL
                           FOR THE THIRD CIRCUIT


                                     No. 05-1922


                              EDWARD F. MORRISON,

                                               Appellant

                                          v.

                        CARPENTER TECHNOLOGY CORP.



                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. Civil No. 03-cv-06102)
                        District Judge: Hon. James K. Gardner


                                Argued March 30, 2006

                   BEFORE: SMITH and COWEN, Circuit Judges,
                        and THOMPSON*, District Judge

                               (Filed: August 22, 2006 )




*Honorable Anne E. Thompson, Senior United States District Judge for the District of
New Jersey, sitting by designation.
Ellis M. Saull, Esq. (Argued)
105 Town Center Road
Suite 1B
King of Prussia, PA 19406

Counsel for Appellant

G. Thompson Bell, III, Esq. (Argued)
Stevens & Lee
111 North Sixth Street
P.O. Box 679
Reading, PA 19603

John F. Ward, Esq.
Stevens & Lee
620 Freedom Business Center
P.O. Box 62330
Suite 200
King of Prussia, PA 19406

Counsel for Appellee


                                        OPINION


COWEN, Circuit Judge.

      Edward F. Morrison appeals the District Court’s order granting Carpenter

Technology Corporation’s (“Carpenter”) motion for summary judgment on his claim for

hostile work environment under Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. § 2000e to -17, and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa.

Cons. Stat. Ann. §§ 951-963, and his retaliation claim under Title VII, 42 U.S.C. § 1981,

and the PHRA. Morrison also appeals the District Court’s two orders denying his



                                            2
motions for leave to take five depositions outside of the discovery period. For the reasons

stated below, we will affirm.

                                             I.

       Because we write only for the benefit of the parties, we recite only those facts

necessary to our analysis. Morrison, an African-American, is a former employee of

Carpenter. During the course of his thirty years of employment with Carpenter, Morrison

worked in several different positions, including that of wire and trash collector in the Bar

Finishing Department. In this latter position, Morrison was responsible for collecting

waste material from large drums and depositing it into city-owned dumpsters.

       Shortly after assuming the position, Morrison began experiencing several problems

associated with the presence of inappropriate waste material in the drums. He reported

the problems to his department manager and two shift coordinators. He also complained

to management about an incident involving a spewing soda can which he found in one of

the drums. In a signed and sworn statement, Morrison indicated to management that he

believed a Carpenter employee had planted the soda can in one of the drums in order to

harm him.

       In response to the inappropriate waste material complaint, Area Manager Joseph

Pieja conducted waste management presentations at several departmental meetings. In

addition, Carpenter conducted a random inspection of all trash and scrap receptacles in

buildings seventy-three and ninety-seven, and found no evidence of inappropriate mixing

of materials. With regard to the spewing soda can incident, Pieja discussed the matter

                                             3
with Morrison and conducted an investigation, but found no evidence to support his

claim.

         On April 26, 2002, Morrison found a large cardboard drawing of a man who had

an upraised noose around his neck. The drawing was perched on a locker near the

thoroughfare used largely for trash and wire material handling. Morrison immediately

reported the incident to Area Manager Todd Eckert. Morrison indicated to management

that he believed the drawing to be a representation of himself because the man depicted in

the drawing allegedly had the facial features of an African-American, such as a broad

nose and full lips.

         Upon receipt of the report, Eckert related the matter to Tom Reed, Director of

Employee Relations, who instructed Neil Culp, Jr., the manager of the Bar Finishing

Department, to investigate the incident. As part of that investigation, Culp interviewed

twenty-four employees in the Bar Finishing Department, none of whom indicated that

they believed the drawing to be a depiction of Morrison. Culp held departmental

meetings for each of the three shifts of employees, at which he reviewed Carpenter’s

policy against workplace harassment and its internal rules prohibiting the posting of

unauthorized materials. At the meetings, the employees were given a copy of

Carpenter’s Harassment and Discrimination Policy and were asked to sign a form

acknowledging their receipt of the policy.

         In addition, Donald Keim, Manager of Carpenter’s Health, Safety and Asset

Protection Department, conducted interviews of two contractors and eighteen employees,

                                              4
seven of whom had been interviewed by Culp. Like Culp, Keim found no indication that

the drawing was intended to be directed at Morrison.

       By letter dated June 15, 2002, Jennie Rodriguez, Carpenter’s Manager of

Employment Diversity and Employee Relations Specialist, informed Morrison that

Carpenter had concluded its investigation of the cardboard drawing incident and had

found no evidence of racial harassment connected to the drawing.

       Meanwhile, Morrison reported the drawing incident to the Reading Police

Department. On the same day, Dennis Brown, Carpenter’s Staff Attorney, contacted

Officer Chlebowski of the Police Department and asked that the Police Department use

him as a point of contact during its investigation. The Reading Police Department never

contacted Morrison or Brown regarding the incident, but, instead, closed the case on the

very next day.

       On August 22, 2002, Morrison received a Corrective Performance Review for

allegedly disruptive behavior associated with making a complaint found to be without

substance and for failing to report the complaint directly to his manager.

       On March 10, 2003, Morrison filed a Charge of Discrimination with the United

States Equal Employment Opportunity Commission (“EEOC”) and the Pennsylvania

Human Relations Commission. After an investigation, the EEOC issued a Dismissal and

Notice of Suit Rights letter.




                                             5
       On July 1, 2003, Morrison bid on, and was awarded, the position of bar wash

operator, which resulted in a 34% pay increase. Morrison continued to work for

Carpenter in that position until his retirement, which was effective April 1, 2004.

                                             II.

       On September 24, 2003, Morrison filed a pro se complaint against Carpenter

alleging a claim for hostile work environment under Title VII and PHRA, and a

retaliation claim under Title VII, 42 U.S.C. § 1981, and the PHRA.

       On January 6, 2004, during a preliminary telephone settlement conference, the

United States Magistrate Judge urged Morrison to retain the services of legal counsel. On

February 3, 2004, during the Rule 16 status conference, the District Court also urged

Morrison to retain legal counsel. At the end of the Rule 16 status conference, the District

Court, with the agreement of the parties, set numerous deadlines, including a discovery

deadline of March 31, 2004. The District Court memorialized the deadlines in an order

entered on February 6, 2004.

       When the discovery period ended on March 31, 2004, Morrison still had not

retained counsel. During the discovery period, Morrison served Carpenter with a single

request for production of documents.

       On May 14, 2004, legal counsel entered an appearance on behalf of Morrison.

Two weeks later, Carpenter filed a motion for summary judgment.

       On June 11, 2004, approximately two and a half months after the end of the

discovery period and nearly one month after counsel had entered his appearance,

                                             6
Morrison filed a motion seeking leave to take the depositions of five Carpenter employees

in order to respond to Carpenter’s summary judgment motion. Morrison asserted that he

had recently retained legal representation, and, with the aid of legal counsel, determined

that he could not properly respond to the motion for summary judgment without the

information he expected to obtain as a result of the depositions. Morrison claimed that

each of the proposed deponents “possesses vital information regarding the important

occurrences that led the Plaintiff to file his Complaint.” (App. at 134.)

       One week later, the District Court denied Morrison’s motion to permit discovery.

The District Court reasoned that Morrison had failed to seek an extension of time prior to

the expiration of the discovery deadline and had waited almost one month from the date

of counsel’s initial appearance to file the discovery motion.

       On August 12, 2004, Morrison filed a second motion seeking to depose the same

five individuals mentioned in the first discovery motion. On August 25, 2004, the

District Court granted Carpenter’s unopposed request for a continuance of trial, and

rescheduled trial for January 10, 2005. On January 5, 2005, the District Court denied

Morrison’s second motion for leave to take the depositions. The parties were not called

for trial during the week of January 10, 2005. Instead, in an order entered February 23,

2005, the District Court granted Carpenter’s motion for summary judgment on all counts.

                                            III.

       Morrison argues that the District Court erred in denying his two motions seeking

leave to take the depositions of five Carpenter employees. As noted above, Morrison

                                             7
claims that the proposed deponents possess information that would have been essential to

his opposition to Carpenter’s summary judgment motion.

       In seeking leave to take the depositions, Morrison did not expressly invoke the

protections of Federal Rule 56(f), which provides that “[s]hould it appear from the

affidavits of a party opposing the [summary judgment] motion that the party cannot for

reasons stated present by affidavit facts essential to justify the party’s opposition, the

court may refuse the application for judgment or may order a continuance to permit . . .

depositions to be taken . . . .” Fed. R. Civ P. 56(f). However, because he sought to take

the depositions outside of the discovery period in order to obtain additional facts to

support his opposition to Carpenter’s summary judgment motion, we conclude that the

procedures set forth in Rule 56(f) apply. Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508,

510-11 (3d Cir. 1994). We review the District Court’s denial of his motions under an

abuse of discretion standard. Id.

       Rule 56(f) explicitly provides that a party seeking additional time for discovery

must file an affidavit setting forth why the time is needed. Id. “We have made clear that,

in all but the most exceptional cases, failure to comply with the Rule 56(f) is fatal to a

claim of insufficient discovery on appeal.” Bradley v. United States, 299 F.3d 197, 207

(3d Cir. 2002); Radich v. Goode, 866 F.2d 1391, 1393 (3d Cir. 1989) (“This circuit

generally requires that a party file a Rule 56(f) affidavit in order to preserve the issue for

appeal.”). “The purpose of the affidavit is to ensure that the nonmoving party is invoking

the protection of Rule 56(f) in good faith and to afford the trial court the showing

                                               8
necessary to assess the merit of a party’s opposition.” Id. at 1394 (citation and internal

quotation marks omitted). An affidavit bears indicia of evidentiary reliability that is

lacking in arguments made by counsel in the course of advocacy. Id. at 1394-95.

       Beyond the requirement of an affidavit, a party seeking additional time for

discovery “must identify with specificity ‘what particular information is sought; how, if

uncovered, it would preclude summary judgment; and why it has not previously been

obtained.’” Lunderstadt v. Colafella, 885 F.2d 66, 71 (3d Cir. 1989) (quoting Dowling v.

City of Philadelphia, 855 F.2d 136, 140 (3d Cir. 1988)).

       Here, Morrison did not submit a Rule 56(f) affidavit with either of his two motions

seeking additional time to conduct discovery. Instead, he relied only upon his counsel’s

unsworn arguments made in the course of advocacy.

       Moreover, even if we were inclined to excuse Morrison’s failure to satisfy the

affidavit requirement, his motions fail for two other significant reasons. First, Morrison

allowed the agreed-upon two-month discovery period to lapse without making any

attempt to take any of the depositions. In addition, he failed to seek an extension of the

discovery period in order to retain counsel. We generally do not grant relief under Rule

56(f) if the purported need for the additional factual information is attributable to the

movant’s own lack of diligence during the discovery period. See Lunderstadt, 885 F.2d

at 71-72. Second, in his motions prepared by legal counsel, Morrison failed to identify

the particular information he sought to obtain as a result of the depositions. Morrison’s

mere statements identifying the elements of his claims and the theories of his case do not

                                              9
satisfy the requirement of specifying the particular information he expected to uncover.

See Pastore, 24 F.3d at 511.

       Under the foregoing circumstances, we cannot conclude that the District Court

abused its discretion in declining to grant Morrison’s motions seeking the belated

discovery.

                                             IV.

       We review the District Court’s order granting summary judgment de novo,

applying the same standard as the District Court. Id. at 511. Summary judgment shall be

rendered “if the pleadings, depositions, answers to interrogatories, and admissions of file,

together with the affidavits, if any, show that there is no genuine issue as to any material

fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). On a motion for summary judgment, we look at all facts in a light most favorable

to the non-moving party. Morton Int’l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669, 680 (3d

Cir. 2003).1



   1
     Morrison objects to Carpenter’s submission, with its summary judgment motion, of
summaries of interviews that Carpenter conducted as part of its investigation concerning
the cardboard drawing incident. We agree that the summaries, which were not attached to
an affidavit or authenticated in an affidavit, cannot serve as the basis for summary
judgment. See Fed. R. Civ. P. 56(e). Nevertheless, the actual details of the summaries
were immaterial to the issues in the summary judgment motion. Carpenter relied upon
the summaries to support its general observation that none of the interviewees found the
cardboard drawing to be a depiction of Morrison. (App. at 82-83.) That same
observation was made in Rodriguez’s letter to Morrison dated June 13, 2002, which
Morrison himself submitted to the District Court in support of his opposition to
Carpenter’s motion for summary judgment. (App. at 205.)
                                             10
                                             A.

       To prevail on a claim for a hostile work environment under Title VII and the

PHRA,2 Morrison must show that: (1) he suffered intentional discrimination because of

his race; (2) the discrimination was severe or pervasive; (3) the discrimination

detrimentally affected him; (4) the discrimination would have detrimentally affected a

reasonable person in like circumstances; and (5) a basis for employer liability is present.

Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006).

       Viewing all of the facts and the reasonable inferences therefrom in the light most

favorable to Morrison, we conclude that Morrison cannot prevail on his claim for hostile

work environment because there is no basis for employer liability. The record evidence

demonstrates that Carpenter took prompt and adequate remedial action and the remedial

action effectively stopped the alleged harassment. See id. at 453 (“In order to establish

employer negligence, the plaintiff must show that management knew or should have

known about the harassment, but failed to take prompt and adequate remedial action. An

effective remedy-one that stops the harassment-is adequate per se.” (citations and internal

quotation marks omitted)). Conversely, there is no record evidence to support Morrison’s

conclusory assertion that Carpenter’s remedial action was nothing more than a “sham.”

The remedial action included an extensive investigation involving interviews of dozens of



   2
     The analysis under Title VII and the PHRA is identical, as Pennsylvania courts have
construed the protections of the two acts interchangeably. Weston v. Pennsylvania, 215
F.3d 420, 426 n.3 (3d Cir. 2001).
                                             11
employees and several departmental meetings at which management reviewed the

company’s policy against harassment. Neither Carpenter’s counsel’s telephone call to the

Police Department nor Carpenter’s ultimate failure to identify the culprit behind the

cardboard drawing shows that Carpenter’s overall remedial action was less than genuine.

       Because respondeat superior liability does not apply, we conclude that the District

Court properly granted Carpenter’s motion for summary judgment as to the hostile work

environment claim. In light of our conclusion, we need not, and do not, consider whether

Morrison satisfied the other prongs of his hostile work environment claim.

                                             B.

       To establish a claim of retaliation, a plaintiff must show that: (1) s/he engaged in

protected employee activity; (2) the employer took adverse action after or

contemporaneous with the protected activity; (3) the action would have been materially

adverse to a reasonable employee in the plaintiff’s position; and (4) there was a causal

connection between the protected activity and the adverse action. Burlington N. & Santa

Fe Ry. Co. v. White, -- U.S. --, 126 S. Ct. 2405, 2409 (2006); Weston v. Pennsylvania,

251 F.3d 420, 430 (3d Cir. 2001).

       In Burlington, the Supreme Court held that the Title VII anti-retaliation provision

extends beyond workplace-related or employment-related acts and harms, but, at the same

time, covers only those retaliatory actions that would have been materially adverse to a

reasonable employee or job applicant. 126 S. Ct. at 2409. Under the new standard



                                             12
articulated in Burlington, we must consider both “the materiality of the challenged action

and the perspective of a reasonable person in the plaintiff’s position.” Id. at 2416.

       The Burlington Court explained that “[t]he anti-retaliation provision protects an

individual . . . from retaliation that produces an injury or harm.” Id. at 2414 (emphasis

added). In other words, “the challenged action [must be] materially adverse, which in

th[e] context [of a retaliation claim] means that it well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.” Id. at 2415 (citation and

internal quotation marks omitted). The Court also emphasized the importance of

applying an objective standard to measure the level of alleged harm in order to avoid

uncertainties and unfair discrepancies. Id. Whether a retaliatory action is sufficiently

serious to meet the materiality and reasonableness requirements “depend[s] upon the

particular circumstances.” Id.

       Viewing all of the facts and the reasonable inferences therefrom in the light most

favorable to Morrison, we agree with the District Court that Morrison failed to

demonstrate the elements of his retaliation claim. Carpenter does not seriously dispute

that Morrison engaged in protected activity when he made complaints to management

about racial harassment stemming from the cardboard drawing incident which occurred

on April 26, 2002. However, Morrison cannot establish the second and third elements of

his retaliation claim based upon the corrective performance review he received in August




                                             13
2002.3 He does not identify, much less establish, any harm or injury produced by the

corrective performance review. The review did not result in any economic loss to

Morrison or any change to the terms of his employment, and the record is devoid of any

facts bearing upon the significance of the single corrective performance review on his

professional advancement at Carpenter. See id. at 2415-16 (indicating that a retaliatory

action might be materially adverse if it has an effect on “the employee’s professional

advancement [which] might well deter a reasonable employee from complaining about

discrimination”). If anything, the record indicates that the review was not materially

adverse to Morrison’s professional advancement as he was awarded a new position and a

34% pay increase on July 1, 2003.

       In addition, the record contains no evidence to show a causal connection between

Morrison’s complaints of racial harassment and the corrective performance review.

Morrison received the corrective performance review almost four months after he made

his complaint about the cardboard drawing incident. The timing of the incidents is not

sufficiently close to be “unduly suggestive,” and there is no “other evidence” suggesting a

causal connection. Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003)

(“[W]here the temporal proximity [between the protected activity and the adverse action]

is not so close as to be unduly suggestive, we have recognized that timing plus other

evidence may be an appropriate test.”) (citation and internal quotation marks omitted).


   3
    Because Morrison did not raise the issue of constructive discharge before the District
Court, the issue is waived.
                                            14
       For these reasons, we conclude that the District Court properly granted Carpenter’s

summary judgment motion.4

       For the foregoing reasons, the judgment of the District Court entered on February

23, 2005, will be affirmed.




   4
     As a result of our disposition of this case, we need not reach Morrison’s third issue
on appeal regarding a jury demand.
                                            15
