                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-2005

Johnson v. Ballys Atl City
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1180




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"Johnson v. Ballys Atl City" (2005). 2005 Decisions. Paper 569.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/569


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                                                              NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       NO. 05-1180


                                   DANIEL JOHNSON,

                                             Appellant


                                             v.

                             BALLY'S ATLANTIC CITY
                      ____________________________________

                    On Appeal From the United States District Court
                             For the District of New Jersey
                                 (Civ. No. 03-cv-3126)
                      District Judge: Honorable Freda L. Wolfson
                    _______________________________________

                       Submitted Under Third Circuit LAR.34.1(a)
                                  September 2, 2005

 BEFORE: VAN ANTWERPEN, GREENBERG and NYGAARD, CIRCUIT JUDGES

                               (Filed: September 7, 2005)
                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      Daniel Johnson filed this employment discrimination suit pro se under Title VII of

the Civil Rights Act of 1964, against his former employer, Bally’s Atlantic City
(“Bally’s”).1 Johnson, who is African-American, was employed as a part-time dealer in

one of Bally’s’ casinos. Johnson alleges that he was regularly subjected to racist

comments by casino customers using the racial slur “monkey” in reference to him and

shouting phrases such as “Come on, monkey,” “You, monkey,” and “Big monkey,” while

they gambled at his table. Johnson asserts that, although he complained, Bally’s failed to

take remedial action and his supervisors intentionally assigned him to tables with verbally

abusive customers. Johnson also alleges that he was physically harassed by Bally’s staff,

who touched him without his permission and directed customers and cleaning staff to

block his path and bump into him. Johnson asserts that these conditions caused him

distress and that he was discharged in retaliation for complaining. Johnson seeks

reinstatement, back pay, and damages.

       In its motion for summary judgment, Bally’s argued that Johnson failed to

establish a prima facie claim under the framework established by McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). Bally’s also asserted that Johnson was discharged

for misconduct, not in retaliation. Johnson filed a letter motion responding to Bally’s’

summary judgment motion, to which he attached a number of supporting documents. The

District Court granted Bally’s’ motion. Johnson appeals the District Court’s order, again

proceeding pro se.

       The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction



       1
        As the parties are familiar with the facts, we recite them here only as necessary to
our discussion.
pursuant to 28 U.S.C. § 1291. We review the District Court’s grant of summary judgment

de novo and apply the same test that the District Court should have used. See Goodman

v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976). The party moving for

summary judgment under Federal Rule of Civil Procedure 56(c) bears the burden of

identifying the portions of the record which it believes “demonstrate the absence of a

genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A

factual dispute is “material” if it might affect the outcome of the suit under the applicable

substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If there is

any evidence in the record from any source from which a reasonable inference may be

drawn in favor of the nonmoving party, the moving party is not entitled to summary

judgment. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir. 1996)

(internal citations omitted).

       We must read Johnson’s pro se pleadings liberally and apply the correct law

regardless of whether he has mentioned it by name. See Holley v. Dep’t of Veteran

Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999). Bally’s argues that Johnson fails to make

out a prima facie case of discrimination under McDonnell Douglas. Bally’s misperceives

the nature of Johnson’s first claim, which is a hostile work environment claim. See

Meritor Savings Bank v. Vinson, 477 U.S. 57, 64 (1986). In order to establish a hostile

work environment claim based on racial discrimination, a plaintiff must show that (1) he

suffered intentional discrimination because of race, (2) the discrimination was pervasive



                                              3
and regular, (3) the discrimination detrimentally affected him, (4) the discrimination

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

the existence of respondeat superior liability. Aman at 1081 (internal citations omitted).

An employer may be liable under Title VII for the harassing conduct of third parties if the

employer was aware of the conduct and failed to take reasonable remedial action in

response. See Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073-74 (10 th Cir. 1998); cf.

Weston v. Pennsylvania, 251 F.3d 420, 427-28 (3d Cir. 2001).

       In his summary judgment response, Johnson provided copies of complaints he sent

to Bally’s’ Labor Relations Department, sick call slips, and a memorandum from his floor

manager describing two incidents of unwanted touching. Bally’s neither filed a reply to

Johnson’s response to address this evidence nor addressed Johnson’s hostile environment

claim in any of its pleadings. Bally’s thus failed to show an absence of material fact as to

the hostile environment claim and was therefore not entitled to summary judgment on this

claim. See Celotex at 323.

       Johnson’s second claim is that he was discharged in retaliation for complaining

about the hostile work environment. In order to state a claim of retaliatory discharge,

Johnson must show that (1) he engaged in a protected activity; (2) he was discharged

subsequent to or contemporaneously with such activity; and (3) a causal link exists

between the protected activity and the discharge. See Aman at 1085 (citing Jalil v. Avdel

Corp., 873 F.2d 701, 708 (3d Cir. 1989)). The parties do not dispute that Johnson



                                             4
engaged in protected activity or that he was subsequently discharged. Bally’s argues that

Johnson cannot establish a causal link because he was discharged for making threatening

remarks to Frank Campbell, a fellow employee. Bally’s submitted written statements

from Campbell, as well as Sonia Reyes and H. Yacaub (Bally’s employees and witnesses

to the incident between Johnson and Campbell) in support.

       Johnson does not dispute that he spoke with Campbell. He argues, however, that

his remarks were not threatening and that the misconduct charge is pretextual. In his

summary judgment response, Johnson submitted copies of the same witness statements

supplied by Bally’s. Johnson argues that Campbell’s statement is consistent with his own

version of events – that Johnson merely told Campbell that he should not call him names

while he is working and should do so only “outside” of work. Johnson contends that

Campbell’s notation that he had felt threatened was added after Johnson was terminated

and that Reyes’ and Yacaub’s statements inaccurately twist his use of the word “outside”

and are inconsistent with Campbell’s statement. Johnson also points out that none of the

witnesses’ statements are sworn and that Reyes’ statement is dated two days after

Johnson was terminated. Again, as Bally’s did not file a reply to Johnson’s response, it

did not address Johnson’s evidence or arguments. In addition to considering temporal

proximity, the District Court should have considered Johnson’s circumstantial evidence of

pretext in evaluating his retaliation claim. See Jalil at 707.

       For the foregoing reasons we will vacate the District Court’s order granting



                                               5
summary judgment to Bally’s and will remand for further proceedings. If the District

Court determines on remand that the issues are sufficiently complex or involve credibility

determinations, the court may wish to consider appointing counsel under 28 U.S.C. §

1915(e). See Tabron v. Grace, 6 F.3d 147, 156-57 (3d Cir. 1993).




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