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


4-14-2009

Mark Lewis v. Bell Atl Verizon
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3601




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                                                        NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                              No. 08-3601
                              ___________

                       MARK ANTHONY LEWIS,

                                      Appellant
                                     v.

  BELL ATLANTIC/VERIZON; BELL ATLANTIC/VERIZON, Affiliate Company
   'Core'; SUE PETRAN; ABBY ELTZ; RON SMITH; CHRIS BERGY; DEBBIE
 DIVANTANTONIO; MICHELLE DIVANTANTONIO; MARK MONSO; PETER
TURK; JOY GROODY; BOB GROODY; DAN KELLY; CARL; LINDA O'BRIANT;
 DAVE PASKOWLSKI; DENNIS GREENEY; JOE GIMALAIRO; JOHN NATOLI;
     JAMIE MURRAY; GEORGE KEEFE; DANIEL J. WHELLAN; VERIZON
    DIRECTORY GRAPHICS, INC.; IDEARC MEDIA SERVICES-EAST, INC.
                  ____________________________________

              On Appeal from the United States District Court
                  for the Eastern District of Pennsylvania
                   (D.C. Civil Action No. 02-CV-01016)
               District Judge: Honorable R. Barclay Surrick
               ____________________________________

              Submitted Pursuant to Third Circuit LAR 34.1(a)
                              April 14, 2009
            Before: BARRY, SMITH and GARTH, Circuit Judges

                      (Opinion filed: April 14, 2009)

                              ___________

                               OPINION
                              ___________
PER CURIAM

       Mark Anthony Lewis appeals from an order of the United States District Court for

the Eastern District of Pennsylvania granting the defendant’s 1 motion for summary

judgment in his civil action. We will affirm.

       Because the parties are familiar with the history and facts of the case, and because

the District Court’s memorandum contains a detailed account, we will recount the

background in summary fashion. Lewis, an African American male, had been employed

by Bell Atlantic Directory Graphics (now “Idearc Media Services,” hereinafter “the

Employer”) as an advertisement compositor. Lewis’s lawsuit alleged discrimination

based essentially on three incidents. First, he noted that he was suspended in 1998 for

misusing company time. However, the suspension was withdrawn, the incident was

purged from his personnel file, and he was reinstated with back pay. Second, Lewis was

suspended in February 1999 for having a verbal confrontation with a coworker,2 and for

falsifying his employment application to indicate that he had graduated from high school

when he had not.3 Although the Employer intended to terminate Lewis, his union


   1
    The complaint was dismissed as to the individual defendants named therein based on
insufficiency of service of process. Dist. Ct. Order, entered Dec. 20, 2002, dkt. #23.
   2
    Both parties to the confrontation were sent home for the day, with pay, pending
investigation. Witnesses to the confrontation later indicated that Lewis was the aggressor.
   3
     The incident with the coworker triggered an investigation into Lewis’s application.
In its letter offering employment, the employer informed Lewis that his employment was
contingent on a successful background check, which could also take place after his
employment began, and that the employer reserved the right to terminate him at any time

                                             2
negotiated a “last chance agreement” in lieu of termination, and Lewis returned to work

in March 1999.4 The third incident Lewis’s complaint relies on is his termination on

March 27, 2000 for false reporting of time records and fraudulent receipt of short-term

disability funds.5

       Lewis filed a grievance with his union regarding his termination. Following

proceedings, a Board of Arbitration found that the Employer had just cause to terminate

Lewis. Lewis filed a charge of discrimination against the Employer with the United

States Equal Employment Opportunity Commission, and received a right to sue letter on

November 30, 2001. Lewis filed the complaint sub judice in February 2002. Following

discovery, the District Court granted the Employer’s motion for summary judgment,

finding that Lewis had failed to establish a prima facie case of employment discrimination




based on the background check.
   4
     In July of 1999, Lewis filed an internal complaint stating that his 1998 and 1999
suspensions were the result of disparate treatment based on his race. The Employer hired
an outside firm to investigate his claims. The firm found no evidence of racial
discrimination or disparate treatment, and noted, inter alia, that between 1997 and 1998,
the Employer had terminated four white employees for lying on their employment
applications, while Lewis had been allowed to keep his job.
   5
     Lewis had informed the Employer’s short-term disability provider that he had been
absent from work from January 24, 2000 until February 4, 2000. The disability provider
paid short-term disability payments based on information provided by Lewis, even
though, in actuality, he was not absent and was receiving regular pay from the Employer
for that period. The Employer also found that Lewis had submitted a time sheet showing
that he worked over seven hours on March 14, 2000, when he had only worked about
one-half hour on that date. A manager corrected the time sheet to reflect the amount of
time Lewis was actually at work before it was submitted.

                                            3
based on the three incidents noted above. Lewis filed a timely notice of appeal of this

decision. He also challenges the District Court’s decision not to recuse upon his motion,

and the District Court’s rulings on his other motions.

       We have jurisdiction over the appeal under 28 U.S.C. § 1291 and exercise plenary

review over the District Court’s decision to grant summary judgment. McGreevy v.

Stoup, 413 F.3d 359, 363 (3d Cir. 2005). Summary judgment is appropriate when the

“pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). A court reviewing a summary

judgment motion must evaluate the evidence in the light most favorable to the nonmoving

party and draw all reasonable inferences in that party’s favor. Brewer v. Quaker State Oil

Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995). However, a party opposing summary

judgment “must present more than just ‘bare assertions, conclusory allegations or

suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv., 409

F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986)).

       As Lewis did not submit direct evidence of discriminatory behavior, the District

Court appropriately analyzed his discrimination claims under the familiar burden-shifting

framework established by McDonnell Douglas v. Green, 411 U.S. 792 (1973). Under that

framework, a plaintiff challenging an adverse employment decision has the initial burden



                                              4
of establishing a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at

802. To set forth a prima facie case of disparate treatment a plaintiff must show that: “(1)

s/he is a member of a protected class; (2) s/he was qualified for the position s/he sought to

attain or retain; (3) s/he suffered an adverse employment action; and (4) the action

occurred under circumstances that could give rise to an inference of intentional

discrimination.” Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). The burden then

shifts to the employer to proffer a legitimate, nondiscriminatory reason for the adverse

action. McDonnell Douglas, 411 U.S. at 802. Once that burden is met, the plaintiff must

establish by a preponderance of the evidence that the nondiscriminatory reasons

articulated by the employer are pretextual. See Jones v. School Dist. of Philadelphia, 198

F.3d 403, 410 (3d Cir. 1999). To defeat summary judgment, “the plaintiff must point to

some evidence, direct or circumstantial, from which a factfinder could reasonably either

(1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an

invidious discriminatory reason was more likely than not a motivating or determinative

cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).

       We conclude that the District Court’s analysis and entry of summary judgment on

Lewis’s discrimination claim is fully supported by the record. We agree with the District

Court that Lewis did not meet his prima facie case of showing discrimination against him

on account of his race, and, even assuming he did meet that burden, the Employer

terminated him for legitimate, non-discriminatory reasons. See Fuentes, 32 F.3d at 763



                                              5
(noting that the employer’s burden to articulate a legitimate, nondiscriminatory reason is

“relatively light”).

       We agree with the District Court that Lewis’s suspension in 1998 was not an

adverse employment action, as he was reinstated with back pay and the incident was

expunged from his record. We further agree that Lewis has not pointed to any evidence

in the record that would allow a factfinder to infer that his 1999 suspension had anything

to do with his race. To the contrary, the record shows that several white employees were

fired for lying on their employment applications, while Lewis was given another chance

on the job. Finally, we agree that Lewis presented no evidence to show that his

termination was racially motivated. The District Court also properly found that even if

Lewis had established a prima facie case, the Employer presented legitimate, non-

discriminatory reasons for terminating him; i.e., attempting to submit a false time sheet,

and collecting short-term disability benefits and wages at the same time. After thoroughly

reviewing the record, we conclude that the District Court properly determined that Lewis

did not demonstrate the existence of a genuine issue of material fact with regard to his

discrimination claim.

       Lewis contends that the District Court erred in failing to recuse upon his motion.

We review a judge’s decision not to recuse, under either 28 U.S.C. § 144 or § 455, for an

abuse of discretion. See Jones v. Pittsburgh Nat’l Corp., 899 F.2d 1350, 1356 (3d Cir.

1990). Under section 144, a judge must recuse if a party files a “sufficient affidavit”



                                             6
establishing that the judge has a personal bias or prejudice against the party seeking

recusal, or in favor of the adverse party. 28 U.S.C. § 144. Under section 455, a judge

must recuse where the judge’s impartiality “might reasonably be questioned.” 28 U.S.C.

§ 455(a). Lewis cites various rulings of the District Court that were unfavorable to him as

evidence that the District Court harbored a preconceived unfavorable judgment about

him. Unfavorable rulings do not form an adequate basis for recusal. See SecuraComm

Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000). Moreover, we find

nothing in the record that suggests “a deep-seated favoritism or antagonism” by the

District Court that would preclude fair judgment. Liteky v. United States, 510 U.S. 540,

555 (1994). Nor do we perceive any facts from which a reasonable person would

conclude that the impartiality of the District Court might reasonably be questioned. See

28 U.S.C. § 455(a); Edelstein v. Wilentz, 812 F.2d 128, 131 (3d Cir. 1987). We discern

no abuse of the District Court’s discretion in the denial of Lewis’s recusal motion.

         We further find no evidence of bias and no abuse of discretion in the District

Court’s rulings on Lewis’s other motions, including his discovery motions. See Lloyd v.

Hovensa, LLC, 369 F.3d 263, 274-75 (3d Cir. 2004) (scope and conduct of discovery

within sound discretion of trial court; appeals court reviews only for abuse of discretion).

We find no record support for Lewis’s claim that the Employer perpetrated a fraud on the

Court.




                                               7
       For the foregoing reasons, we will affirm the judgment of the District Court.6




   6
     Lewis’s motion to file attachments as evidence and disk containing attachments is
granted to the extent the documents were a part of the District Court record. This Court
“cannot consider material on appeal that is outside of 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).

                                             8
