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


7-7-2006

Money v. Provident Mutual Life
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3438




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 05-3438
                                    ____________

                                DENNIS R. MONEY,

                                                Appellant

                                           v.

                            PROVIDENT MUTUAL LIFE
                              INSURANCE COMPANY
                                 _______________

                   On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (D.C. No. 04-cv-846)
                   District Judge: Honorable Ronald L. Buckwalter
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 15, 2006

           Before: FISHER, CHAGARES and REAVLEY,* Circuit Judges.

                                    ____________

                                 (Filed : July 7, 2006)
                                     ____________

                             OPINION OF THE COURT
                                  ____________




      *
        The Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth
Circuit, sitting by designation.
CHAGARES, Circuit Judge.

       This is an employment discrimination case arising under Title VII of the Civil

Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §§ 2000(e) et seq., and under the

Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. §§

621 et seq. Appellant Dennis R. Money (“Money”) appeals the District Court’s order

granting Summary Judgment for defendant Provident Mutual Life Insurance Company

(“Provident”) on his race discrimination claim, and the District Court’s order granting

Provident’s Motion to Dismiss his age discrimination claim. Because we write only for

the parties, we do not state the facts separately. For the following reasons, we will affirm

both orders.1

                                             I.

       Money, an African-American, contends that Provident fired him because of his

race and his age, and not because of his role in a violent altercation with Donald Hiles

(“Hiles”), an employee of the company providing security services at Provident. On July

1, 2002, Hiles allegedly called out to Money using racial slurs and, as Money tried to

walk past, allegedly struck him in the back. Money turned and punched Hiles in the face,

knocking Hiles to the ground. Money then reported the incident. Ten days later, Money




       1
          We do not consider Money’s argument that the District Court erred in granting
Provident’s motion to dismiss his claim for punitive damages, because the District Court,
in fact, denied that motion.

                                             2
was terminated, giving rise to the present claims. Hiles was also terminated by his

employer.

       As an initial matter, we note that Money’s opening brief only challenged the

discriminatory termination portion of the District Court’s decision. He has therefore

waived his ability to challenge the other two matters determined on summary judgment,

allegations of retaliatory discharge and a hostile work environment. See, e.g., Harvey v.

Plains Twp. Police Dep’t, 421 F.3d 185, 192 (3d Cir. 1999) (holding argument that

appellant did not raise in opening brief waived). As to the remaining issues, we exercise

plenary review. See Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).

                                             II.

       In the absence of direct evidence of discrimination (as in the present case), a

plaintiff may prove discrimination according to the burden-shifting framework set forth in

McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell-Douglas,

the plaintiff bears the initial burden of establishing a prima facie case of unlawful

discrimination. Id. at 802. If the plaintiff succeeds, the burden of production shifts to the

employer to articulate a legitimate, nondiscriminatory reason for the employee’s

termination. Id. Once the employer meets its relatively light burden, the burden of

production returns to the plaintiff, who must show by a preponderance of the evidence

that the employer’s proffered reason is pretextual. See id. at 804-05. Accordingly, once

an employer has proffered a legitimate, nondiscriminatory reason, the plaintiff “generally

must submit evidence which: (1) casts sufficient doubt upon each of the legitimate

                                              3
reasons proffered by the defendant so that a factfinder could reasonably conclude that

each reason was a fabrication; or (2) allows the factfinder to infer that discrimination was

more likely than not a motivating or determinative cause of the adverse employment

action.” Fuentes, 32 F.3d at 762. Because the ultimate issue is whether “discriminatory

animus” motivated the employer, it is not enough to show that the employer made a

wrong or mistaken decision. Rather, the plaintiff must uncover “weaknesses,

implausibilities, inconsistencies, or contradictions” in the employer’s explanation that

would allow a reasonable factfinder to believe that the employer did not truly act for the

asserted reason. Id. at 765.

       Assuming Money has established a prima facie case of employment

discrimination, Provident explained that Money was terminated because he struck Hiles,

violating Provident’s policy prohibiting workplace violence. See SA at 146 (Provident’s

workplace violence policy stating, in part: “Provident Mutual has a strong commitment to

maintaining a workplace atmosphere that, to the greatest degree possible, prohibits

violent or threatening behavior toward all individuals on Company property....Any

employee who engages in violent or threatening behavior toward any individual,

including, but not limited to other employees, contract employees, or visitors, while the

employee is on Company premises...will be subject to immediate discipline up to and

including termination of employment.”). Committing violence in the workplace is clearly

a legitimate, nondiscriminatory reason for terminating an employee. See Clark v.

Runyon, 218 F.3d 915, 919 (8th Cir. 2000) (“Both actual violence against fellow

                                             4
employees and threats of violence are legitimate reasons for terminating an employee.”);

Johnson v. Hondo, Inc., 125 F.3d 408, 415 (7th Cir. 1997); Giannopoulos v. Brach &

Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997).

       Money argues that Provident’s explanation was pretextual because he struck Hiles

in self-defense, because Provident’s investigation of the incident was deliberately

inadequate, and because Provident’s decision to terminate him was unreasonable. Money

first contends that, because he hit Hiles in self-defense, a reasonable jury could disbelieve

Provident’s explanation of why Money was fired. However, Hiles’s status as the person

initiating the violence is not, alone, a basis upon which a jury could find in Money’s

favor. Money admits that he struck Hiles: a violent act that was forbidden by an

established policy, regardless of the provocation. Ultimately, the fact that Hiles struck

first does nothing to cast doubt on Provident’s explanation that Money was fired for

striking Hiles.

       Money also argues that Provident’s investigation of the incident was deliberately

insufficient. Specifically, he claims that Provident’s Human Resources Manager lied

about the extent of the investigation in order to cover up the fact that the decision to fire

Money had nothing to do with punching Hiles. Because Money presents nothing more

than a naked credibility attack, unsupported – and often directly contradicted – by the

record, this argument does not assist Money in meeting his McDonnell-Douglas burden.

       Finally, Money questions whether the severity of his punishment was warranted.

In support, he points to his previous good record; the fact that the policy was not “zero

                                               5
tolerance” but provided for punishment “up to and including termination” for various

transgressions; his supervisor’s recommendation that Money attend anger management

classes as an alternative to termination; and the fact that self-defense is a defense to

assault under state criminal law. Money presents no evidence to suggest that any

decisionmaker at Provident harbored racial animus and the termination decision itself is

not so unreasonable as to assist Money in proving pretext under McDonnell-Douglas. At

most, these facts show that Provident was not required to fire Money over the incident

with Hiles. Even if Provident’s decision was imprudent, unwise, and incompetent, a

merely bad employment decision is not actionable under Title VII. See Fuentes, 32 F.3d

at 765. Therefore, because Money cannot show that Provident’s reason for terminating

him was pretextual, we conclude that the District Court properly granted Provident’s

summary judgment motion.

                                              III.

       A party seeking relief under the ADEA must exhaust his or her administrative

remedies as required by 29 U.S.C. § 626(d). See Watson v. Eastman Kodak Co., 235

F.3d 851, 854 (3d Cir. 2000) (ADEA plaintiff must exhaust administrative remedies

before he may access judicial relief). Under section 626(d), an aggrieved party may not

file an age discrimination complaint in federal district court until 60 days after filing a

charge with the Equal Employment Opportunity Commission (“EEOC”). Because

Pennsylvania is a “deferral state” – one with a state agency that has authority to

investigate employment discrimination charges – the plaintiff may file charges with the

                                               6
EEOC within 300 days of the alleged discriminatory act. See 29 U.S.C. §§ 626(d)(2) &

633(b); Watson, 235 F.3d at 854.

       Money concedes that he never filed a formal charge of age discrimination with the

EEOC, but argues that he satisfied the requirements of § 626(d) by sending the EEOC a

copy of the complaint that initiated this action in the District Court. Money was

terminated on July 10, 2002, and he sent the complaint to the EEOC on January 22, 2004

– more than 560 days after his allegedly unlawful termination, and fewer than 60 days

before filing his complaint in federal district court in February, 2004. Thus, the District

Court correctly determined that Money’s age discrimination was barred for failure to

follow section 626(d).

       Money claims, however, that his Title VII complaint should be “enlarged” to

include his ADEA claim. We have recognized that the parameters of a discrimination

action “are defined by the scope of the EEOC investigation which can reasonably be

expected to grow out of the charge of discrimination.” Ostapowicz v. Johnson Bronze

Co., 541 F.2d 394, 398-99 (3d Cir. 1976), cert. denied, 429 U.S. 1041 (1977); see also

Waiters v. Parsons, 729 F.2d 233, 238 (3d Cir. 1984) (suit alleging retaliatory termination

was not time-barred because it alleged the same “core grievance” as an earlier EEOC

complaint of retaliation). Money admits that his charge of discrimination made no

mention of age discrimination and he candidly states that his age discrimination claim

was only conceived after currently-retained counsel reviewed this case, following the

EEOC investigation.

                                              7
       Money’s argument is rejected because his age discrimination claim could not

reasonably be expected to grow out of his charge of race discrimination. See Davis v.

Sodexho, 157 F.3d 460, 464 (6th Cir. 1998) (appellant’s “age discrimination claim neither

in fact grew out of the EEOC’s investigation of race discrimination and retaliation claims,

nor would the facts related with respect to these two claims prompt the EEOC to

investigate age discrimination.”); Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 675

(9th Cir. 1988) (“Title VII and ADEA claims arise from entirely different statutory

schemes. [Appellant’s] original charge contains no hint of age discrimination. His ADEA

claim should be time-barred.”). We therefore conclude that the District Court properly

granted Provident’s motion to dismiss Money’s age discrimination claim as time barred.

                                            IV.

       Accordingly, for the foregoing reasons, we will affirm the District Court’s orders.
