BLD-127                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-2997
                                       __________

                                    DAVID MUNOZ,
                                             Appellant

                                             v.

               WORLD FLAVORS, INC.; ON SITE PERSONNEL, LLC
                   ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2-17-cv-02350)
                      District Judge: Honorable Berle M. Schiller
                      ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  February 27, 2020
          Before: AMBRO, GREENAWAY, Jr., and BIBAS, Circuit Judges

                              (Opinion filed April 10, 2020)
                                      __________

                                        OPINION*
                                       __________
PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
      Pro se appellant David Munoz appeals from the District Court’s order granting

summary judgment to the defendants in his employment discrimination lawsuit. For the

reasons discussed below, we will summarily affirm.

                                               I.

      Because we write primarily for the parties, we will recite only the facts necessary

for our discussion. In October 2015, Munoz was hired by On Site Personnel, LLC (“On

Site”), a temporary employment agency. In November 2015, he was assigned to work as

a temporary employee at World Flavors, Inc. He worked at World Flavors for twelve

days before he was fired on November 20, 2015. Rather than reassign Munoz to another

work site, On Site Personnel also fired him.

      On the morning of November 20, Munoz had an argument with a coworker about

a table that he wanted to use for his work. Munoz reported the argument to his

supervisor, Anthony Ross, who instructed Munoz to use a different table. Ross later

reported to his supervisor, Russell Perry, that Munoz was being argumentative, refused to

follow instructions, and refused to work. Around 10:30 a.m., Perry fired Munoz and two

other temporary employees who were involved in the argument. Perry documented the

circumstances of the firing in a contemporaneous memo.

      Although Munoz does not dispute that he was dismissed at 10:30 a.m. on

November 20, he maintains that he was fired because he reported sexual harassment to

World Flavors’ Human Resources Department in the afternoon of November 20. Munoz

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testified that Perry harassed him by, among other things, brushing Munoz’s shoulder,

flirting with Munoz, telling Munoz that he was attractive, and asking to see Munoz’s

tattoos.

       In May 2017, Munoz filed a complaint against World Flavors and On Site in the

District Court, raising claims of sex discrimination, retaliation, and a hostile work

environment under Title VII of the Civil Rights Act (“Title VII”) and the Pennsylvania

Human Relations Act (“PHRA”). The defendants filed various cross-claims and moved

for summary judgment. The District Court granted summary judgment in favor of the

defendants on Munoz’s claims and dismissed the defendants’ outstanding cross-claims.

This appeal ensued.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over the District Court’s order granting summary judgment. See Kaucher v. County of

Bucks, 455 F.3d 418, 422 (3d Cir. 2006). Summary judgment is proper when, viewing

the evidence in the light most favorable to the nonmoving party and drawing all

inferences in favor of that party, there is no genuine dispute as to any material fact and

the moving party is entitled to judgment as a matter of law. See id. at 422–23; Fed. R.

Civ. P. 56(a). A genuine dispute of material fact exists if the evidence is sufficient for a

reasonable factfinder to return a verdict for the non-moving party. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We may summarily affirm “on any basis

                                              3
supported by the record” if the appeal fails to present a substantial question. See Murray

v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam); Third Circuit LAR 27.4 and

I.O.P. 10.6.

                                            III.

       The District Court properly entered summary judgment against Munoz on his

discrimination and retaliation claims, according to the burden-shifting framework

established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Jones

v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999) (explaining that the framework

generally applies to claims under Title VII and the PHRA). Under that framework,

Munoz had the initial burden of establishing a prima facie case of discrimination or

retaliation. See McDonnell Douglas, 411 U.S. at 802. If he succeeded, the burden then

would shift to the defendants to articulate a legitimate non-discriminatory or non-

retaliatory reason for taking an adverse employment action against him. See id.; Moore

v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006) (discussing retaliation claims).

Munoz would then have an opportunity to prove by a preponderance of the evidence that

the legitimate reason offered by the defendants for the adverse action was a pretext. See

Jones, 198 F.3d at 410; Moore, 461 F.3d at 342.

       Here, at the very least, and assuming without deciding that Munoz established a

prima facie case of discrimination and retaliation, we agree with the District Court that

the defendants pointed to legitimate, non-discriminatory and non-retaliatory reasons for

                                             4
firing Munoz — his arguing with a coworker and his refusal to follow his supervisor’s

instructions. See Ross v. Gilhuly, 755 F.3d 185, 193 (3d Cir. 2014) (holding that “[e]ven

assuming, arguendo, that [plaintiff] established a prima facie case,” his “demonstrably

poor job performance” was a “legitimate, non-discriminatory reason” for his

termination). Munoz failed to adduce evidence from which a reasonable factfinder could

conclude “that the employer’s proffered reasons were merely a pretext for

discrimination,” Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003) (per

curiam), or that there were “weaknesses, implausibilities, inconsistencies, incoherencies,

or contradictions from which a reasonable juror could conclude that the Defendants’

explanation is unworthy of credence, and hence infer that the employer did not act for the

asserted” non-retaliatory reason, Carvalho-Grevious v. Del. State Univ., 851 F.3d 249,

262 (3d Cir. 2017) (quotation marks and citations omitted). We agree with the District

Court’s analysis of this issue, including its discussion of the circumstances surrounding

Munoz’s firing. There is no genuine dispute that Munoz’s poor performance was the

documented reason for his firing and that he was fired before he reported the harassment

by Perry. And, while Munoz testified about isolated incidents of harassment that are

highly offensive, no reasonable juror could find that they establish pretext under the

circumstances here. Thus, the defendants were entitled to summary judgment on the

discrimination and retaliation claims under Title VII and the PHRA.




                                             5
         The defendants were also entitled to summary judgment on Munoz’s claim of a

hostile work environment. To prevail on such a claim, “a plaintiff must show that 1) the

employee suffered intentional discrimination . . . 2) the discrimination was severe or

pervasive, 3) the discrimination detrimentally affected the plaintiff, 4) the discrimination

would detrimentally affect a reasonable person in like circumstances, and 5) the existence

of respondeat superior liability [meaning the employer is responsible].” Castleberry v.

STI Grp., 863 F.3d 259, 263 (3d Cir. 2017) (quotation marks and citation omitted).

Again, the isolated harassment here, while highly offensive, is insufficient for a

reasonable juror to find that Munoz suffered discrimination that was severe or pervasive.

Cf. id. at 265. Thus, the defendants were entitled to summary judgment on the hostile

work environment claims.

         Accordingly, we will affirm the judgment of the District Court. Munoz’s motion

for appointment of counsel is denied. See Tabron v. Grace, 6 F.3d 147, 158 (3d Cir.

1993).




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