CLD-072                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 11-3098
                                     ___________

                                 DARREN R. JONES,
                                    Appellant

                                           v.

            JOHN BOYLE; WILLIAM RUETE; ROBERT GASPARAVIC,
              757 Page Ave. (E.T.D. Headquarters) Lyndhust, NJ 07071
                    ____________________________________

                     Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. Civil No. 2-08-cv-03062)
                    District Judge: Honorable Katharine S. Hayden
                     ____________________________________

        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
                                 December 22, 2011

            Before: RENDELL, HARDIMAN AND ROTH, Circuit Judges

                           (Opinion filed: January 30, 2012)
                                      _________

                              OPINION OF THE COURT
                                    _________

PER CURIAM

       Darren R. Jones appeals from the District Court’s entry of summary judgment in

favor of the defendants. We will affirm.
                                             I.

       From 1997 through 2007, Jones was employed as a delivery driver by Englewood

Tire Distributors, Inc. (“ETD”), which was restructured during his employment as

Englewood Tire Wholesale, Inc. (“ETW”). He voluntarily resigned in 2007 and later

filed suit pro se against ETW’s owner and two of its supervisory employees under Title

VII of the Civil Rights Act of 1964. Jones alleges that defendants are Caucasian and paid

him less than two co-workers (including another non-Caucasian) solely because he is

African-American. Discovery revealed that, while ETW paid Jones the same as or more

than those two co-workers for most of his first six years of employment, it paid him

between fifty cents and one dollar and fifty cents less an hour thereafter. The parties do

not dispute that point.

       Defendants filed an initial motion for summary judgment, but the District Court

later permitted Jones to amend his complaint to add ETD and ETW as defendants.

Defendants then filed another motion for summary judgment, and Jones filed a motion

for summary judgment as well. The District Court granted defendants’ motion and

denied Jones’s motion by order entered June 30, 2011. Jones appeals.1


1
  We have jurisdiction under 28 U.S.C. § 1291. Our review is plenary. See Noel v.
Boeing Co., 622 F.3d 266, 270 n.4 (3d Cir. 2010). “Summary judgment is granted only if
there remains no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law.” Id. “In order to demonstrate the existence of a genuine
issue of material fact, the nonmovant must supply sufficient evidence (not mere
allegations) for a reasonable jury to find for the nonmovant.” Olson v. Gen. Elec.


                                             2
                                             II.

       Jones’s claim is governed by the familiar burden-shifting framework set forth in

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

bore the initial burden of making out a prima facie case by raising an inference of

discrimination. See Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008) (citation

omitted). The burden then shifted to ETW “to articulate a legitimate, non-discriminatory

reason for the adverse employment action.” Id. If it did so, then “the inference of

discrimination drops and the burden shifts back to the plaintiff to show that the

defendant’s proffered reason is merely pretext for intentional discrimination.” Id.

       In this case, the District Court assumed that the pay differential referenced above

made out a prima facie case of discrimination. It concluded, however, that ETW satisfied

its burden of articulating a legitimate reason for the differential—i.e., that it was based on

Jones’s performance, not his race. In that regard, it noted that ETW had documented

twenty-eight work-related problems over the years, only four of which Jones denied. The

District Court also concluded that Jones had presented no evidence that ETW’s

explanation was pretextual. The District Court noted the absence from the record of any

disparaging or offensive remarks about Jones or African-Americans or any other




Astrospace, 101 F.3d 947, 951 (3d Cir. 1996). The District Court granted summary
judgment to the individual defendants because there is no individual employee liability
under Title VII. See Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002). Because


                                              3
evidence of discriminatory animus, and also noted that ETW had promoted another

African-American employee to Assistant Supervisor during Jones’s tenure. We have

carefully reviewed the record, and we agree with the District Court on all counts. Jones

did not present any evidence from which a reasonable jury could conclude that ETW’s

explanation for the pay differential was pretextual and that the differential was

attributable instead to intentional discrimination.

       Jones raises several arguments on appeal, but they lack merit. First, he argues that

ETW’s reliance on his performance issues is pretextual because it could have fired him

on that basis but did not. The mere fact that ETW did not fire Jones, however, does not

call into question its stated reasons for taking the less drastic step of limiting his pay.

Second, Jones argues that he was not required to show intent and appears to suggest that

the pay differential was discriminatory per se. That is not the law. See Makky, 541 F.3d

at 214. Third, Jones argues that his performance issues were not a valid basis to pay him

less because those issues arose infrequently when viewed over the ten-year term of his

employment. The question is not whether Jones’s performance warranted the pay

differential in the abstract, however, but whether ETW’s stated reason was a pretext for

discrimination. Jones submitted no evidence from which a reasonable jury could

conclude that it was. Finally, Jones accuses ETW in conclusory fashion of committing



there is no room for dispute on that point, and because ETD was later restructured as TW,
he remaining discussion will refer to ETW as the sole defendant.


                                               4
perjury and withholding and manufacturing evidence. Jones has not made any specific

claim in this regard, let alone shown that there might be a basis for one.

       For these reasons, we will affirm the judgment of the District Court.




                                             5
