                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 17-1398
                                     _____________

                             THOMAS K. VAUGHAN, JR.,
                                                Appellant

                                             v.

                               THE BOEING COMPANY

                                     ______________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                          (D.C. Civ. Action No. 2-15-cv-04845)
                      District Judge: Honorable Gerald A. McHugh
                                    ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  December 15, 2017
                                   ______________

              Before: CHAGARES, RESTREPO, FISHER Circuit Judges.

                                  (Filed: May 22, 2018)

                                     ______________

                                        OPINION*
                                     ______________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
RESTREPO, Circuit Judge.

       Plaintiff-Appellant Thomas Vaughan, Jr. appeals from an order of the District

Court granting summary judgment to his former employer, The Boeing Company, on his

federal and state law claims of race discrimination and retaliation. We will affirm.

                                             I1

       As the District Court aptly remarked, this case presents an unfortunate situation:

the falling out between a long-time employee and his employer. In 2013, after eighteen

years of working at Boeing, Vaughan was fired from his position as a composite

fabricator due to an altercation with a shift manager. However, Vaughan was able to

negotiate his return pursuant to a Reinstatement and Last Chance Agreement entered into

by Vaughan, his union, and Boeing. The Last Chance Agreement required Vaughan to

meet regularly with an Employee Assistance Program (“EAP”) counselor, Richard

Buxton, who worked on-site at Boeing but was employed by a third-party counseling

agency.2 This agreement also put Vaughan “on notice that any incident, considered to be

insubordination, either direct or indirect, [would] result in his immediate discharge.” JA

140.

       Upon Vaughan’s return to Boeing, he was moved from the department where he

had worked for the previous six years and the task with which he was familiar—


       1
        Because we write solely for the benefit of the parties, we recite only the facts
necessary to this opinion.
       2
          The conversations between employees and any third-party EAP counselors are
confidential, and counselors may only break that confidentiality in extreme circumstances
or if given permission by the employee.
                                             2
“deflash,” or the grinding down of airplane parts to ensure smoothness. Instead, Vaughan

was assigned to a new task in a new department with a new supervisor. Specifically,

Vaughan was assigned to perform “bonding,” or attaching component parts to aircrafts, in

the V-22 Osprey Department (“V-22 Department”) under the direction of Charles Moyer,

a white supervisor. Out of approximately twenty to twenty-five employees, Vaughan was

the only black composite fabricator in Moyer’s bonding operation in the V-22

Department.

      Initially, Vaughan was tasked with sweeping the floor, rather than with substantive

bonding work. After several weeks of being constrained to sweeping work, Vaughan

expressed his frustration to Moyer. Vaughan also conveyed his concern to Buxton that he

was spending an unusual amount of time sweeping and still had not been given

substantive work. Vaughan gave Buxton permission to relay this concern to the employee

relations department, which Buxton did. Within a week of Buxton’s notice to employee

relations, Vaughan was finally given “meaningful work[.]” JA 147.

      Once performing his primary task in bonding—attaching fuel bag hangers to

airplane fuel tanks—Vaughan felt that he was not receiving enough hands-on training,

and he relayed this concern to Buxton. Vaughan also expressed this training concern to

Moyer on several occasions. On one such occasion, Moyer responded to Vaughan’s

request for training by asking “if [he] was an idiot.” JA 90. Vaughan notified Buxton of

Moyer’s unprofessional and unfortunate insult, who in turn relayed the comment to

Vaughan’s union. In response, Boeing transferred Vaughan the next day to a different

supervisor in the same V-22 Department, Mark Muldowney, who was white. Following

                                            3
this transfer, Vaughan reported to Buxton that he was “more optimistic” in the new

arrangement, now that he was performing substantive work. JA 147.

       At the same time, Vaughan consistently experienced difficulty following Boeing’s

safety protocol regarding Foreign Object Debris (“FOD”), or items foreign to the aircraft

under construction. To prevent stray tools in particular from being left behind in a

worksite, Boeing employs a “chit” system in order to regulate the checking out of tools

from any toolbox. Under this system, employees must leave a chit—or piece of plastic

marked with an employee identification number—in place of a tool while it is in use.

Once no longer in use, employees must return the tool to the box and retrieve the

placeholder chit. Employees are required to remove all tools and FOD from the worksite

every time they leave the worksite, no matter how short the break. At the end of their

shifts, employees are required to return all tools to the toolbox and account for all chits. If

any tool or chit is missing, employees are required to notify a manager, and the factory is

shut down until the tool or chit is located. Because of the seriousness of the FOD safety

protocol, all composite fabricators are required to undergo an annual FOD training.

Vaughan had taken the annual FOD training.

       Shortly after beginning substantive work, Muldowney noticed that Vaughan left

FOD on an aircraft while on break. Because Vaughan was new to the V-22 Department

and stated he was “unaware of the processes” in that operation, Muldowney briefed

Vaughan about the issue and provided an informal coaching session on FOD control. JA

334. Muldowney informed Vaughan that, pursuant to Boeing’s discipline policy, future



                                              4
violations could result in corrective action, which typically entailed the involvement of

human resources (“HR”) and the issuance of a written warning.

       One week later, Vaughan left out several tools on a cart overnight and Muldowney

emailed the HR representative for the V-22 Department about both this infraction and the

previous incident. Because it was not Vaughan’s first infraction, Muldowney requested

that HR issue Vaughan a written warning. Shortly thereafter, while an HR investigation

and decision on the overnight FOD incident was pending, Muldowney observed that

Vaughan left paper backing on an aircraft. Two days later, Vaughan checked out a sander

from a toolbox without placing a chit in its place. Vaughan was ultimately given a written

warning and a three-day suspension in light of his four FOD infractions.

       Following his suspension and return to work, Vaughan worked overtime without

prior approval. Earlier on the same day of this violation, Muldowney had discussed the

overtime workplace policy with his employees, including Vaughan. Muldowney notified

HR and requested that Vaughan be disciplined for this infraction. While that decision was

pending, Donald Clayton, a black manager from another operation, notified Muldowney

that he saw an orbital sander left overnight in a cart in the bonders’ work area and that

one of Vaughan’s chits was in the sander’s place. Muldowney reported this final incident

to HR, recommending that Vaughan be fired. Vaughan disputes the sixth and final

infraction—he maintains that he did not leave the orbital sander out, as stated by

Clayton.3


       3
         Because Vaughan disputes that the sixth and final violation took place, the Court
construes the facts in Vaughan’s favor, as it must at this stage, and considers only his first
                                              5
       On January 27, 2014, less than four months after Vaughan’s return, Boeing

terminated Vaughan citing his unauthorized overtime and FOD infractions. Although

Vaughan offers explanations for them, he does not dispute that the first five infractions—

four FOD and one overtime—occurred.

       Vaughan filed this action against Boeing asserting claims of race discrimination

and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e, et seq.; 42 U.S.C. § 1981; and the Pennsylvania Human Relations Act

(“PHRA”), 43 Pa. Stat. §§ 951–63. The District Court granted summary judgment in

favor of Boeing on all claims. Vaughan timely appeals.

                                             II

       The District Court had jurisdiction pursuant to 28 U.S.C §§ 1331 and 1367, and

we have jurisdiction pursuant to 28 U.S.C. § 1291.

       We exercise plenary review over a District Court’s order granting summary

judgment. Mandel v. M & Q Packaging Corp., 706 F.3d 157, 164 (3d Cir. 2013).

Therefore, we apply the same standard as the district court. Id. Summary judgment is

appropriate where “the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We

view the facts in the light most favorable to the nonmoving party; do not engage in


five infractions. Moreover, to the extent that a jury’s consideration of the disputed
infraction would not impact the outcome, this dispute is not one of material fact sufficient
to preclude summary judgment. See Hampton v. Borough of Tinton Falls Police Dep’t,
98 F.3d 107, 112 (3d Cir. 1996) (“[T]he non-moving party must demonstrate a dispute
over facts that might affect the outcome of the suit.”); Fuentes v. Perskie, 32 F.3d 759,
766–67 (3d Cir. 1994).
                                             6
credibility determinations; and draw all inferences in the non-movant’s favor. Mandel,

706 F.3d at 164. If the nonmoving party “fails to make a showing sufficient to establish

the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial,” then there can be no genuine issue of material fact and

we will affirm a District Court’s grant of summary judgment. Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986).

                                              III

       All claims of race discrimination brought under Title VII, § 1981, or the PHRA

are governed by the “familiar burden-shifting framework” set forth in McDonnell

Douglas v. Green, 411 U.S. 792 (1973).4 Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410

(3d Cir. 1999). Under this framework, a plaintiff first “carr[ies] the initial burden . . . of

establishing a prima facie case of racial discrimination.” McDonnell Douglas, 411 U.S. at

802; see also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981). In

order to establish a prima facie claim of discrimination, “[a] plaintiff must show that: 1)

[he] is a member of a protected class, 2) [he] was qualified for the position [he] sought to

attain or retain, 3) [he] suffered an adverse employment action, and 4) the action occurred




       4
         We have previously held that “the substantive elements of a claim under section
1981 are generally identical to the elements of an employment discrimination claim under
Title VII.” Brown v. J. Kaz, Inc., 581 F.3d 175, 181–82 (3d Cir. 2009). The same is true
for claims brought pursuant to the PHRA. Atkinson v. LaFayette College, 460 F.3d 447,
454 n.6 (3d Cir. 2006) (“Claims under the PHRA are interpreted coextensively with Title
VII claims[.]”). Accordingly, we evaluate Vaughan’s several race discrimination claims
simultaneously.
                                               7
under circumstances that could give rise to an inference of intentional discrimination.”

Mandel, 706 F.3d at 169 (quoting Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008)).

       If a plaintiff is able to set out a prima facie case of discrimination, the burden then

“shift[s] to the employer to articulate some legitimate, nondiscriminatory reason for the

employee’s rejection.” McDonnell Douglas, 411 U.S. at 802. Finally, if the employer

articulates such a reason, the burden shifts back to the plaintiff to show that the

employer’s “stated reason . . . was in fact pretext.” Id. at 804.

       A plaintiff can defeat summary judgment by demonstrating pretext in one of two

ways: 1) by “point[ing] to evidence in the record that would cause a reasonable juror to

disbelieve the employer’s articulated legitimate non-discriminatory reason, thereby

creating a genuine dispute of material fact as to the credibility of that reason[,]” Burton v.

Teleflex Inc., 707 F.3d 417, 430–31 (3d Cir. 2013) (citing Fuentes, 32 F.3d at 762), or

2) “pointing to evidence that indicates that the employer acted with discriminatory

animus[,]” id. If proceeding by the first method, a plaintiff need not provide evidence that

the employer acted with animus, but rather only that the employer’s rationale is

“unworthy of credence[.]” Id. (quoting Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691

F.3d 294, 302 (3d Cir. 2012)).

       To establish a prima facie claim of retaliation, a plaintiff must show that “(1) [he]

engaged in activity protected by Title VII; (2) the employer took adverse employment

action against [him], and (3) there was a causal connection between [his] participation in

the protected activity and the adverse employment action.” Moore v. City of Phila., 461

F.3d 331, 340 (3d Cir. 2006). “[A]t the prima facie stage, a plaintiff need only proffer

                                               8
evidence sufficient to raise the inference that [his] engagement in a protected activity was

the likely reason for the adverse employment action[.]” Carvalho-Grevious v. Del. State

Univ., 851 F.3d 249, 253 (3d Cir. 2017) (emphasis in original).

                                            IV

                                             A

       Boeing does not dispute that Vaughan has met the first three elements of a prima

facie case of race discrimination. Therefore, the only question remaining for Vaughan to

establish a prima facie claim is whether the circumstances surrounding his termination

give rise to an inference of race discrimination. The District Court reasonably found the

question a close one, and ultimately decided Vaughan narrowly made a showing

supporting a discriminatory inference. But, even if we presume Vaughan has made such a

showing and has, therefore, stated a prima facie case of race discrimination, Vaughan’s

claim would nonetheless fail at the third step of the McDonnell Douglas framework:

pretext.

       At the first step, we assume arguendo that Vaughan has set forth a prima facie

claim. At the second step of the McDonnell Douglas framework, Boeing has articulated a

legitimate, non-discriminatory rationale for Vaughan’s termination: Vaughan’s many

FOD infractions and his overtime violation. At the third step, Vaughan has not overcome

that rationale by pointing to evidence that would either undermine the credibility of

Boeing’s legitimate, non-discriminatory reason for terminating him or suggest that

Boeing acted with discriminatory animus. Burton, 707 F.3d at 430–31.



                                             9
       First, there is no basis to “disbelieve [Boeing’s] articulated legitimate reasons[.]”

Fuentes, 32 F.3d 759, 764 (3d Cir. 1994). Vaughan contends that there is a genuine

dispute of material fact on this point because, in his view, Boeing fired him solely

because of the final, disputed FOD incident. But Vaughan’s FOD infractions were

numerous and, with the exception of one, undisputed by Vaughan. The corrective action

memorandum recommending termination recognizes this, noting that Vaughan “ha[d]

been provided numerous coaching sessions and trainings for similar [FOD] incidents[.]”

JA 259. Moreover, the termination memo cites to Vaughan’s “work[ing] unauthorized

post-shift overtime despite verbal instructions not to do so[.]” Id. Unfortunately for

Vaughan, he was on tenuous ground at the time of this infraction. Acting contrary to

Muldowney’s overtime instructions on the same day they were given could be construed

as “insubordination, either direct or indirect” sufficient to trigger immediate discharge

under the Last Chance Agreement. JA 140. This undisputed evidence regarding the

overtime violation precludes us from finding Boeing’s stated reason for Vaughn’s

termination unworthy of credence.

       Second, Vaughan has not “point[ed] to evidence that indicates that the employer

acted with discriminatory animus.” Burton, 707 F.3d at 430–31. Vaughan offers as

comparators the names of white employees who he posits had violated FOD and overtime

requirements without repercussions. But even accepting, as we must at summary

judgment, Vaughan’s testimony that some of his white co-workers were committing

FODs or performing unauthorized overtime without repercussions, neither Vaughan’s

testimony nor the balance of the evidence suggests that those employees were similarly-

                                             10
situated and therefore proper comparators. For example, he has not shown that each of

the identified white employees committed multiple violations with impunity. Moreover,

Vaughan was an employee on a “Last Chance.” Vaughan has not indicated whether the

other white bonding employees were on similar probationary status. Thus, Vaughan has

not provided adequate comparator evidence. See Simpson v. Kay Jewelers, Div. of

Sterling, Inc., 142 F.3d 639, 645 (3d Cir. 1998) (“The plaintiff has the burden of

demonstrating that similarly situated persons were treated differently.” (citing Burdine,

450 U.S. at 258)).

       Because Vaughan has not provided reason to disbelieve Boeing or find racially

discriminatory animus in his termination, he has failed to meet his burden to show pretext

under McDonnell Douglas.

                                              B

       Finally, Vaughan has failed to state a prima facie claim of retaliation. For the

purposes of this motion, the parties agree that Vaughan engaged in protected activity. We

accept, as we must at summary judgment, Vaughan’s contention that the protected

activity at issue is his communication to Buxton that he believed he was being treated

unfairly because of his race. The parties also agree that he suffered adverse employment

action. Therefore, only the third element is in dispute—that a causal connection existed

between the first and second elements.

       The Court agrees with the District Court that Vaughan has failed to establish such

a causal connection. In order “for protected conduct to be a . . . factor in a decision, the

decisionmakers must be aware of the protected conduct.” See Ambrose v. Township of

                                              11
Robinson, 303 F.3d 488, 493 (3d Cir. 2002). Without such awareness, the causal chain is

broken.

       Vaughan has presented evidence that Buxton communicated Vaughan’s concern

that he “was spending an unusual amount of time sweeping the floor” to Boeing’s

employee relations department. JA 147. But Vaughan has not presented any evidence that

Boeing was made aware or had knowledge of the component of Vaughan’s

communication which would be protected—that race discrimination may be at the root of

his sweeping concern. Though Buxton testified that he privately believed Vaughan may

have been tasked to sweep for so long due to discrimination, Buxton also testified that he

kept that belief private from both Vaughan and from Boeing. Buxton further testified

that, because his communications with Vaughan were confidential, he only conveyed to

Boeing the portion of their conversation that Vaughan permitted Buxton to relay—that

Vaughan was given “excessive[]” sweeping duties and was concerned that he had not

performed substantive work since his return to Boeing. Id. Buxton did not frame

Vaughan’s sweeping concern as one of race discrimination when conveying it to Boeing.

       Vaughan does not dispute Buxton’s testimony, but instead argues that this Court

should nonetheless make the inference that the employee relations department,

Muldowney, and other supervisors nonetheless knew of the discriminatory nature of

Vaughan’s complaint. But, as the District Court reasonably noted, this request goes too

far. At summary judgment, we must view the facts in the light most favorable to Vaughan

only to the extent that there is a genuine dispute as to those facts. Scott v. Harris, 550

U.S. 372, 380 (2007). Similarly, we must only draw all reasonable inferences in

                                              12
Vaughan’s favor “to the extent supportable by the record.” Id. at 381 n.8. To assume that

Boeing knew Vaughan engaged in protected activity where the record suggests otherwise

would be an unreasonable inference that we cannot make. Vaughan has, therefore, failed

to show his protected activity was a factor in Boeing’s decision. Without a showing of

causation, Vaughan has failed to establish a prima facie claim of retaliation.

                                             V

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




                                            13
