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


7-11-2006

Bailey v. Reading Housing Auth
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2722




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                                                                  NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT

                                       NO. 05-2722

                                 RICARDO G. BAILEY,
                                                Appellant

                                            v.

                       READING HOUSING AUTHORITY;
                    DANIEL F. LUCKEY; RICHARD MULUTZIE


                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (District Court No: 04-cv-2532)
                       District Judge: Honorable Juan R. Sanchez

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 18, 2006

      Before: SCIRICA, Chief Judge, MCKEE and STAPLETON, Circuit Judges

                              (Opinion filed: July 11, 2006)


                                        OPINION

McKEE, Circuit Judge.

       Ricardo Bailey appeals the district court’s grant of summary judgment in favor of

all defendants in the suit he filed alleging that he was fired from his employment with the

Reading Housing Authority because of illegal racial discrimination. For reasons that

follow, we will affirm.

       Since we write primarily for the parties who are familiar with this dispute, we do
not recite the facts. The district court explained why summary judgment is appropriate

in this case in the succinct Memorandum and Order it filed on April 29, 2005. App. at

A2. There, the court set forth the elements of plaintiff’s prima facie case and explained

that Bailey had not produced evidence that non-members of the protected class were

treated more favorably than Bailey. We will affirm substantially for the reasons set forth

by the district court.

       Bailey claims the court erred in concluding that his allegation that “Mulutzie, a

Caucasian, was promoted in 1995 despite being well known for sleeping on the job” was

insufficient to support a prima facie case of discrimination. App. at A5. He argues that

“sworn statements by a party opposing summary judgment may not just be swept away

by describing them as allegations or bald assertions.” Rather, he cites Levendos v. Stern

Entertainment, Inc., 860 F.2d 1227, 1231 (3d Cir. 1988) to argue that “such a sworn

statement or testimony by itself is sufficient to raise an issue of material fact,”

Appellant’s Br. at 12. In a footnote in Levendos, we cited Jackson v. University of

Pittsburgh, 826 F.2d 230, 236 (3d Cir. 1987), cert denied, 484 U.S. 1020 (1988) in

stating that “‘No rule of law . . . provides that a discrimination plaintiff may not testify in

his or her own behalf, or that such testimony, standing alone, can never make out a case

of discrimination that will survive summary judgment.’” However, Bailey reads far too

much into that excerpt and his argument requires that we stretch it beyond the context of

that case. In Levendos, the plaintiff’s affidavit contained allegations of specific acts of



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discrimination based upon her own knowledge including nonhearsay statements to other

employees that she was not fit because she was a woman. She also claimed stolen items

were placed in her locker so that she could be falsely accused of theft. She further

submitted the affidavit of a co-employee who stated that her reputation was excellent and

she was popular with customers. All of that evidence was admissible at trial. That is quite

different from Bailey’s attempt to create a genuine issue of material fact by allegations

that it was “common knowledge” that a White employee also slept on the job.

       In addition, although Bailey does address the issue of municipal liability in his

Reply brief, the record here is clearly inadequate to establish municipal liability under

Monell v. Department of Social Servs. , 436 U.S. 658 (1978), and its progeny.

       Accordingly, for all the reasons set forth above, we will affirm the order of the

district court.




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