                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-6-2007

Woodard v. PHB Die Casting
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5485




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                                                              NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                         No. 05-5485
                                      ________________

                                  DAVYED WOODARD,
                                           Appellant

                                             v.

                                      PHB DIE CASTING


                     On Appeal From the United States District Court
                        For the Western District of Pennsylvania
                              (D.C. Civ. No. 04-cv-00141-E)
                      District Judge: Honorable Sean J. McLaughlin


                        Submitted Under Third Circuit LAR 34.1(a)
                                   November 2, 2007

                 Before: SLOVITER, BARRY and WEIS, Circuit Judges

                                (Filed : November 6, 2007)

                                _______________________

                                       OPINION
                                _______________________

PER CURIAM

       Dayved Woodard appeals the District Court’s grant of summary judgment in favor

of his former employer, PHB Die Casting, on charges of employment discrimination in

violation of federal and state law.

       Woodard worked at defendant PHB Die Casting’s facility in Fairview,
Pennsylvania, from 1998 through 2003. He contends that during that time, he

experienced and heard second-hand about a number of allegedly racist comments by co-

workers and that he was given less favorable job assignments than non-African American

employees. Specifically, he testified at his deposition: that he saw a burning cross and

KKK sign drawn on a bathroom wall in 2002, and that management failed to have it

removed for at least three months after he reported it (Woodard Tr. at 67-72); that his

supervisor consistently gave him more physically demanding tasks at more complex

machines (Woodard Tr. at 83-93); that he was told by co-workers about blatantly racist

comments that had been made by other co-workers (Woodard Tr. at 33-41); and that more

ambiguously racially charged comments were directed to him by co-workers (Woodard

Tr. at 47-49). In addition, Woodard introduced evidence that a supervisor at PHB’s

Fairview facility agreed to attend diversity training in response to complaints in 2001 but

never actually attended the class. See EEOC Determination of December 18, 2003. The

District Court found this evidence insufficient to establish a prima facie case for either a

hostile work environment or disparate treatment claim under Title VII, 42 U.S.C. § 2000e

et seq., or the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. C.S.A. § 951 et seq.

We agree.

       We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and undertake plenary

review of the District Court’s grant of summary judgment. See Cardenas v. Massey, 269

F.3d 251, 254 (3d Cir. 2001). Summary judgment is appropriate when there is no genuine

issue of material fact to be resolved at trial and the moving party is entitled to judgment as

                                              2
a matter of law. See id.; Fed. R. Civ. P. 56(c). In making the determination, all

reasonable inferences are drawn in favor of the non-moving party. See Cardenas, 269

F.3d at 254.

       In order to establish a prima facie hostile work environment claim under Title VII

or the PHRA, a plaintiff must show that “(1) the employee suffered intentional

discrimination because of [his race], (2) the discrimination was pervasive and regular, (3)

the discrimination detrimentally affected the plaintiff, (4) the discrimination would

detrimentally affect a reasonable person of the same [race] in that position, and (5) the

existence of respondeat superior liability.” Weston v. Pennsylvania, 251 F.3d 420, 426

(3d Cir. 2001). The discriminatory conduct must be so extreme as to amount to a change

in the terms and conditions of employment. See Carver v. City of Trenton, 420 F.3d 243,

262 (3d Cir. 2005). Unless they are extremely severe, offhand comments and isolated

incidents are insufficient to sustain a hostile work environment claim. See id.

       Like the District Court, we find no evidence to support Woodard’s conclusion that

any unfavorable work assignments resulted from racial animus. Rather, Woodard

testified at his deposition that any animosity on the part of the supervisor responsible for

work assignments arose from a 1998 incident that had nothing to do with Woodard’s race.

See Woodard Tr. at 98.

       What remains are the racist graffiti and the racially insensitive comments made to




                                              3
Woodard by his co-workers.1 Over the course of three years, Woodard claims that he was

twice asked questions using the phrase “you people,” once asked what his race was, and

once asked if he intended to complete a drug deal during a bathroom break. Even

assuming these somewhat ambiguous incidents were related to Woodard’s race, they are

the type of offhand comments that are insufficient to support a hostile work environment

claim. See Carver, 420 F.3d at 263. While the KKK-related graffiti and PHB’s alleged

failure to remove it promptly are more serious, this one incident, even in conjunction with

the comments discussed above, is not enough for a trier of fact to conclude that

discriminatory conduct in the workplace amounted to a change in the terms or conditions

of Woodard’s employment.

       As the District Court noted, Woodard failed to make out a prima facie disparate

treatment claim because he did not introduce evidence that he was subject to an adverse

employment action. See Sarullo v. USPS, 352 F.3d 789, 797 (3d Cir. 2003).

       Accordingly, we will affirm the judgment of the District Court.2




   1
     The more serious racist comments that were made outside of Woodard’s presence
and directed at others do not serve as direct evidence in support of his hostile work
environment claim, but they may be relevant to determining whether otherwise
ambiguous comments or conduct was racially motivated. See Carver, 420 F.3d at 263-64.
   2
     Appellant’s motion to file a supplemental appendix and to supplement the District
Court record is DENIED. See In re Cmty. Bank of N. Va., 418 F.3d 277, 317 n.32 (3d
Cir. 2005) (noting that our review is confined to the record built by the District Court).
                                           4
