                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 16-2888
                                  _____________

                            RICHARD A. STERRETT,
                                          Appellant

                                         v.

                              GIANT EAGLE, INC.;
              GIANT EAGLE INC, d/b/a OK Grocery Company;
                       OK GROCERY COMPANY INC;
         GENERAL WAREHOUSEMEN & EMPLOYEES LOCAL 636,
           affiliated with the International Brotherhood of Teamsters
                                  _____________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                        District Court No. 2-14-cv-00235
                 District Judge: The Honorable Nora B. Fischer

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                March 6, 2017

    Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges

                              (Filed: March 7, 2017 )
                             _____________________

                                    OPINION
                             _____________________




 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
SMITH, Chief Judge.

      Plaintiff Richard Sterrett was a union maintenance worker in the warehouse

of Defendant OK Grocery Company, Inc., a division of Defendant Giant Eagle,

Inc. (collectively, “Giant Eagle”). Sterrett was a member of Defendant General

Warehousemen & Employees Local 636 (the “Union”). After Sterrett was fired,

he brought a breach of contract claim and two claims under the Family and

Medical Leave Act of 1993 (“FMLA”) against Giant Eagle and a claim for breach

of the duty of fair representation against the Union. The District Court granted

Defendants’ motion to dismiss the breach of contract and duty of fair

representation claims and then later granted Giant Eagle’s motion for summary

judgment on the FMLA claims. Sterrett appealed the judgment on all four claims.

After de novo review, we agree that Sterrett’s claims are meritless, and we will

affirm.




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                                BACKGROUND1

      Starting around 1993, Sterrett began suffering from migraine headaches.

Sterrett became a warehouse maintenance worker for Giant Eagle on March 31,

2007. In May 2010, Sterrett applied for and was granted intermittent FMLA leave

from his employment at Giant Eagle. Sterrett claimed that he experienced a

pattern of hostility in response to his taking FMLA leave, particularly from his


1
  Our recitation of the facts is slightly complicated by the requirement that we
apply a different factual standard of review to both the breach of contract and duty
of fair representation claims, which were dismissed on a motion to dismiss, from
the FMLA claims, which were dismissed on a summary judgment motion.
       For the breach of contract and duty of fair representation claims, which were
dismissed at the motion to dismiss stage, we look to the First Amended Complaint
and documents integral to that complaint, such as the Last Chance Agreement, to
determine if Sterrett’s claims “lack facial plausibility” when we “accept[] all well-
pleaded allegations in the complaint as true and view[] them in the light most
favorable to the plaintiff,” disregarding any “unsupported conclusions and
unwarranted inferences, or a legal conclusion couched as a factual allegation.”
Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (en banc) (internal quotation
marks omitted) (quoting Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d
Cir. 2011), and Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)); see also
Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).
       For the FMLA claims dismissed at the summary judgment stage, we look to
see if Giant Eagle has shown it is entitled to judgment as a matter of law because
there is no genuine dispute of material fact based upon the record, “view[ing] the
underlying facts and all reasonable inferences therefrom in the light most favorable
to” Sterrett. P.R.B.A. Corp. v. HMS Host Toll Roads, Inc., 808 F.3d 221, 223 (3d
Cir. 2015); Fed. R. Civ. P. 56(a), 56(c)(1).
       Even if our recitation of facts appears to mix allegations from the complaint
and the Last Chance Agreement with evidence taken from the record, we have not
considered any record evidence when reviewing the breach of contract and duty of
fair representation claims.
                                         3
direct supervisor, Jeff Chulack. After every day Sterrett took FMLA leave, he

would find a generic warning about FMLA abuse at his toolbox. One day when

Sterrett shut his toolbox to leave, Chulack said, “oh, another migraine Monday.”

Apx. 326; see also Apx. 153. Another employee, Tom Kinsel, relayed Chulack’s

belief that Sterrett was taking FMLA leave to work on his house and Chulack’s

comments that Sterrett was taking “another headache day” to Sterrett. Apx. 325–

26; see also Apx. 153. Additionally, among other things, Chulack caused Sterrett

not to be invited to HAZ/MAT refresher training despite Sterrett’s seniority in the

department and refused to give Sterrett a special key “that opens up every lock in

the building” even though other maintenance workers had that key and Sterrett had

asked for it on two occasions. Apx. 322. Without such access, Sterrett could not

watch sports on Chulack’s big screen TV during work hours like other

maintenance workers. Sterrett also asserted that Giant Eagle had been unfairly

scrutinizing his successive requests for leave and pointed to an incident where

leave was temporarily denied because the person who processed the forms was on

vacation.

      At some point, Sterrett took a day off to grieve the death of his “aunt.”

Either because the “aunt” was not technically related to Sterrett—she was his “step

dad’s new companion”—or because Sterrett failed to “request[] a bereavement

                                        4
day,” the company discharged Sterrett “for Dishonesty, using Bereavement Leave

for improper purposes, and Theft of Time.” Apx. 91, 330–31; see also Apx. 147.

To “get [his] job back,” Sterrett entered into the Last Chance Agreement (“LCA”)

on July 7, 2011. Apx. 330–31; see also Apx. 147.

      Paragraphs 4 and 5 of the LCA state:

            4. In the event that Sterrett is determined by the Company to
            have committed any dishonest act, or falsified any Company
            document or information provided to the Company, at any
            time during the remainder of his employment with OK
            Grocery Company, the Company will have the right to
            discharge Sterrett for cause and no prior warning will be
            required.
            5. If Sterrett is discharged pursuant to any provision of this
            Agreement, the Union and Sterrett agree not to file any
            NLRB charge, grievance, lawsuit, or any other legal or
            administrative proceeding against the Company in
            connection with such discharge. If discharged, Sterrett also
            agrees not to file any NLRB charge, lawsuit or any other
            legal or administrative proceeding against the Union in
            connection with such discharge.
Apx. 92.

      On the night shift beginning October 11, 2013, Sterrett clocked in before

11:00 PM. During that shift, he suffered a migraine so severe that he could barely

work. Over roughly five-and-a-half hours, Sterrett only changed two batteries. He

spent much of those five-and-a-half hours lying down in the locker room in the



                                        5
dark or in the break room. Finally, around 4:30 AM, he called the night shift

supervisor and took FMLA leave but did not clock out.

      The next day, Chulack reviewed records to generate payroll. Because the

payroll system flagged Sterrett’s failure to clock out, Chulack reviewed

surveillance tapes at a high speed to determine when Sterrett left.      Chulack

concluded that Sterrett left around 4:30 AM. Because it seemed from his high-

speed review that Sterrett had not been working, Chulack reviewed the tapes again

at normal speed a day later. then created a handwritten summary documenting

Sterrett’s failure to work.

      Chulack provided the summary to Operations Manager James A.

Hilzendeger. Hilzendeger had HR manager William Guy interview Sterrett. At

the interview, Sterrett admitted that he had only changed two batteries during his

October 11–12 shift and that he had not informed any superiors about his inability

to work. Following that interview, Sterrett was removed from the work schedule.

On October 18, 2013, Sterrett and his union representative met with Giant Eagle

representatives, including Hilzendeger.

      On October 31, Hilzendeger mailed a letter to Sterrett terminating his

employment “for the separate and independent reasons of violation of the Last



                                          6
Chance Agreement and” company policies regarding “Theft, Dishonesty, Sleeping,

Starting, Quitting, Break Times, and Due Care.” Apx. 455; see also Apx. 273.

      In his First Amended Complaint, Sterrett alleged four counts against Giant

Eagle and the Union. His first count charged that Giant Eagle had breached a

collective bargaining agreement executed November 16, 2012 (the “2012 CBA”)

or the LCA when Giant Eagle fired him. His second count alleged that the Union

had breached its duty of fair representation by “refus[ing] to prosecute a grievance

on his behalf.” Apx. 149–52. His third and fourth counts alleged that Giant Eagle

had retaliated against Sterrett under the FMLA and had interfered with Sterrett’s

rights under the FMLA, respectively.

      On February 25, 2015, the District Court dismissed the breach of contract

and duty of fair representation claims at the motion to dismiss stage. See Sterrett

v. Giant Eagle, Inc., No. 14-235, 2015 WL 791401, at *1 (W.D. Pa. Feb. 25, 2015)

(adopting and republishing the Chief Magistrate Judge’s January 22, 2015 report

and recommendation after de novo review).

      On June 6, 2016, the District Court granted Giant Eagle’s motion for

summary judgment on Sterrett’s FMLA claims. See Sterrett v. Giant Eagle, Inc.,

No. 14-235, 2016 WL 3136905 (W.D. Pa. June 6, 2016), adopting Sterrett v.



                                         7
Giant Eagle, Inc., No. 14-235, 2016 WL 3166268 (W.D. Pa. Apr. 27, 2016).

Sterrett appealed.

      The District Court had jurisdiction under 28 U.S.C. § 1331, and we have

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

legal questions in both sets of claims.      See Ill. Nat’l Ins. Co. v. Wyndham

Worldwide Operations, Inc., 653 F.3d 225, 230 (3d Cir. 2011).

                                   ANALYSIS

I. THE CONTRACT AND DUTY OF FAIR REPRESENTATION CLAIMS
      With regard to Counts 1 and 2, we affirm for the reasons stated by the

District Court. As to Count 1, the District Court correctly held that the LCA—not

the 2012 CBA—governed the termination of Sterrett’s employment. The LCA

gives Giant Eagle the discretion to determine whether Sterrett committed an act of

dishonesty and then to fire Sterrett at any time without Sterrett having a right to

grieve or arbitrate claims relating to such a firing. See Sterrett, 2015 WL 791401,

at *4–7. Giant Eagle exercised that discretion.

      Thus, the arguments that Sterrett reiterated on appeal fail for the following

reasons:

    Sterrett failed to plead facts that give rise to an inference that the 2012 CBA

      supplanted the LCA as to Sterrett. See, e.g., Daniel Adams Assocs., Inc. v.

                                         8
   Rimbach Publ’g, Inc., 519 A.2d 997, 1004 (Pa. Super. Ct. 1987) (“The party

   asserting a substituted contract . . . has the burden of proving that the parties

   intended to discharge the earlier agreement.”).

 As the District Court held, the LCA’s indefinite duration was not contrary to

   public policy because Sterrett could terminate the agreement by quitting.

   See Sterrett, 2015 WL 791401, at *7.

 The LCA’s express terms barring grievances and arbitrability did not give

   way to a presumption of arbitrability because the LCA also gave Giant

   Eagle the discretion to determine when there had been a breach. Cf. United

   Steelworkers of Am. v. Lukens Steel Co., Div. of Lukens, Inc., 969 F.2d

   1468, 1474, 1478 (3d Cir. 1992) (holding that a presumption of arbitrability

   remained in a last chance agreement because the settlement agreement

   “fail[ed] to specify who is to determine whether a violation has occurred”).

 Giant Eagle did not waive its right to enforce the LCA by “continu[ing] to

   give notice of accumulated absentee days as required by the CBA.” Sterrett

   Br. 31. Even were such behavior a “course of performance” as Sterrett

   alleges, id. at 31–32, we would still follow the clear text of the LCA. See,

   e.g., Gene & Harvey Builders, Inc. v. Pa. Mfrs.’ Ass’n Ins. Co., 517 A.2d

   910, 913 (Pa. 1986) (explaining that the goal of contract interpretation “is,

                                       9
      of course, to ascertain the intent of the parties as manifested by the language

      of the written instrument”); see also 13 Pa. C.S.A. § 1303(e)(1) (“[E]xpress

      terms prevail over course of performance, course of dealing and usage of

      trade . . . .”); Restatement (Second) of Contracts § 203(b) (similar).

      Without a right to grieve and without a meritorious contract claim, Sterrett’s

duty of fair representation claim also fails. See, e.g., Podobnik v. U.S. Postal

Serv., 409 F.3d 584, 594 (3d Cir. 2005) (“In hybrid section 301 claims, a plaintiff

‘must prove that the employer breached the collective bargaining agreement in

order to prevail on the breach of duty of fair representation claim against the union

and vice versa.’” (quoting Felice v. Sever, 985 F.2d 1221, 1226 (3d Cir. 1993))).

                            II. THE FMLA CLAIMS
      With regard to Sterrett’s FMLA claims, we affirm, largely for the reasons

stated by the District Court. The District Court did not address the possibility that

Sterrett’s claims might proceed under a mixed-motive analysis. We do so here.

      Under Third Circuit law, there may be two different ways of proving FMLA

retaliation/interference: (1) pretext-based claims are assessed “under the burden-

shifting framework in” McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

while (2) mixed-motive claims “have been assessed under the mixed-motive

framework set forth in” Price Waterhouse v. Hopkins, 490 U.S. 228, 276–77

                                         10
(1989) (O’Connor, J., concurring). Lichtenstein v. Univ. of Pittsburgh Med. Ctr.,

691 F.3d 294, 302 (3d Cir. 2012);2 see also 29 C.F.R. § 825.220(c) (“[E]mployers

cannot use the taking of FMLA leave as a negative factor in employment

actions . . . .”).

       Assuming that all circumstantial evidence cases had to be analyzed as

pretext cases, the District Court applied the familiar McDonnell Douglas burden-

shifting test. See Sterrett, 2016 WL 3166268, at *4–8, adopted by 2016 WL

3136905.       Applying that test, the District Court held that Sterrett’s FMLA

interference and retaliation claims failed because Sterrett failed to create a genuine

dispute of material fact regarding whether Giant Eagle’s proffered explanation for

firing Sterrett—Sterrett violated the LCA by dishonestly staying clocked-in while

failing to work—was pretext. See id. at *6. Sterrett argues that Giant Eagle’s

citation of company policies in its termination letter shows that the entire firing

was pretextual because, according to Sterrett, he did not violate those company


2
  Lichtenstein stated that the mixed-motive framework was applied to “claims
based on direct evidence.” Lichtenstein, 691 at 302. In Desert Palace, Inc. v.
Costa, the Supreme Court rejected this distinction between direct and indirect
evidence with regard to Title VII discrimination claims. See 539 U.S. 90, 98–99
(2003) (holding that Title VII does not “require[] that a plaintiff make a heightened
showing through direct evidence”). Because Sterrett failed to show a genuine
issue of material fact that his FMLA leave was a motivating factor for the relevant
decisionmaker, we assume without deciding that Desert Palace applies to FMLA
retaliation claims.
                                         11
policies and Giant Eagle was not allowed to fire him under any of those policies.

While Giant Eagle cited the company policies in its letter, it also stated that the

LCA violation was an “independent” reason to fire Sterrett. Apx. 455. Sterrett has

failed to create an inference that the main reason for his firing—his committing a

“dishonest act” under the LCA—was pretextual.           Accordingly, we agree that

Sterrett failed to produce evidence from which a reasonable jury could find Giant

Eagle’s reliance on the LCA violation was pretextual.

      While Sterrett’s argument was unclear on this point, he may have been

arguing that his claim should proceed under a mixed-motive analysis. Out of an

abundance of caution, we perform that analysis here.

      In a mixed-motive case, a plaintiff “must ultimately prove that [his or] her

protected status was a ‘motivating’ factor.” Connelly v. Lane Constr. Corp., 809

F.3d 780, 788 (3d Cir. 2016). To survive summary judgment on a mixed-motive

claim, Sterrett was required to produce evidence that “is so revealing of

discriminatory animus that it is not necessary to rely on any presumption from the

prima facie case [as is necessary in a pretext action] to shift the burden of

production.” Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1096 (3d Cir.

1995) (alteration in original) (emphasis omitted) (quoting Armbruster v. Unisys

Corp., 32 F.3d 768, 778 (3d Cir. 1994), abrogated on other grounds by O’Connor

                                        12
v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996), as recognized in Showalter

v. Univ. of Pittsburgh Med. Ctr., 190 F.3d 231, 235–36 (3d Cir. 1999)); accord

Capps v. Mondelez Glob., LLC, 847 F.3d 144, 2017 WL 393237, at *5 n.5 (3d Cir.

Jan. 30, 2017).   Moreover, retaliation claims can generally survive summary

judgment only when the plaintiff raises a genuine issue of material fact about the

decisionmaker’s motive and knowledge—not the motive and knowledge of other

coworkers.    Cf. Lichtenstein, 691 F.3d at 297–300, 307–09 (analyzing the

decisionmaker’s motive and knowledge); Walden v. Georgia-Pacific Corp., 126

F.3d 506, 516 (3d Cir. 1997) (explaining that “the fact that a decisionmaker

received a memorandum containing a statement that allegedly reflects retaliatory

animus does not show that the decisionmaker shared that retaliatory animus”).

      Here, the closest Sterrett comes to producing such “revealing” evidence is

his discussion of Chulack’s “course of antagonistic conduct” toward him. Sterrett

Br. 48. But Chulack was not the decisionmaker; Hilzendeger was.

      In some cases, the hostility of a nondecisionmaker like Chulack can create

an inference of discriminatory animus under the “cat’s paw” theory. We allow

plaintiffs to proceed under a cat’s paw theory if a supervisor exhibiting

discriminatory animus influenced or participated in a decision to take an adverse

employment action and if such animus was a proximate cause of the ultimate

                                       13
decision. See McKenna v. City of Philadelphia, 649 F.3d 171, 172, 177–80 (3d

Cir. 2011); see also Staub v. Proctor Hosp., 562 U.S. 411, 420 (2011) (“[T]he

requirement that the biased supervisor’s action be a causal factor of the ultimate

employment action incorporates the traditional tort-law concept of proximate

cause.”).

      Here, no reasonable jury could find that Chulack proximately caused

Sterrett’s firing because Hilzendeger’s decision to fire Sterrett was based on an

independent investigation that included Sterrett’s own admissions. Our recent

decision in Jones v. SEPTA shows why proximate cause could not be found here.

In Jones, Jones’ supervisor at SEPTA suspended her for “apparent fraud in her

timesheets.”   796 F.3d 323, 324–25 (3d Cir. 2015).        Jones claimed that her

supervisor sexually harassed her.     Id. at 325.   Jones’ supervisor referred the

timesheet-fraud matter to SETPA’s Office of Inspector General (“OIG”). See id.

The OIG concluded that Jones had “collected pay for days she hadn’t worked by

submitting fraudulent timesheets.” Id. SEPTA subsequently “formally terminated

her” employment. Id. We held that there was no proximate cause because “Jones

offer[ed] no evidence that [her supervisor] influenced the OIG investigation or

SEPTA’s termination decision beyond getting the ball rolling with his initial report

of timesheet fraud.” Id. at 331.

                                        14
      Here, as in Jones, it is insufficient to show that Chulack “g[ot] the ball

rolling with his initial report” that Sterrett failed to work during his shift. The only

other allegations in Sterrett’s brief of Chulack’s involvement in the termination

were that (1) Chulack “set up” Sterrett by “selecting . . . 5 hours for payment of

wages to [Sterrett] and then complaining that [Sterrett] got paid” and (2) Chulack

“tr[ied] to build a case against” Sterrett by emailing the night shift supervisor to

ask when Sterrett clocked out. Sterrett Br. 48. First, nowhere does Sterrett offer

any fact or law showing that Chulack had discretion about how much of Sterrett’s

clocked-in time to put in the payroll system. Second, there is no fact that supplies

even an inference that Chulack’s email to Sterrett’s supervisor ever reached any

decisionmaker, and, in any event, the response to Chulack’s email provided no

evidence to any Giant Eagle employee that was not cumulative of Sterrett’s own

admissions.

      In his reply, Sterrett also argues that Chulack could somehow have

overridden Hilzendeger’s decision to fire him. In support, Sterrett cites nothing

more than a bare allegation in his Amended Complaint. It has long been true on

summary judgment that “[t]he nonmoving party cannot establish a genuine dispute

as to a material fact by pointing to unsupported allegations in the pleadings.” Doe

v. Luzerne County, 660 F.3d 169, 175 (3d Cir. 2011) (citing Celotex Corp. v.

                                          15
Catrett, 477 U.S. 317, 322–23 (1986)). Therefore, Sterrett has failed to show that

any of Chulack’s behavior was a proximate cause of his termination. There were

no facts from which a reasonable jury could find that Chulack’s animus infected

Hilzendeger’s decisionmaking. Accordingly, no mixed-motive claim can survive

summary judgment.

      For the aforementioned reasons, we will affirm.




                                       16
