                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-15-2005

Messina v. EI DuPont de Nemours
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1978




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                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                            ________________

                                  No. 04-1978
                               ________________

             CHARLES MESSINA; BARBARA MESSINA, his wife

                                        v.

        E.I. DUPONT DE NEMOURS & COMPANY INCORPORATED

                                      Charles Messina,

                                          Appellant
                               ________________

                 On Appeal From the United States District Court
                           For the District of Delaware
                         (D. Del. Civ. No. 02-cv-01700)
                     District Judge: Honorable Kent Jordan
                               ________________

                   Submitted Under Third Circuit LAR 34.1(a)
                                May 18, 2005

           Before: RENDELL, AMBRO and FUENTES, Circuit Judges

                               (Filed July 15, 2005)

                               ________________

                                   OPINION
                               ________________

PER CURIAM

    Appellant Charles Messina, proceeding pro se, appeals an order of the United
States District Court for the District of Delaware granting summary judgment in favor of

E.I. du Pont de Nemours and Company (“DuPont”) in his reverse discrimination action.

For the reasons that follow, we will affirm the District Court’s order.

       Messina, who is Caucasian, worked at DuPont for twenty-three years. He is an

electrician. In October 2000, Messina was trying to re-position a wire in a switch box in

order to close its cover when an electric arc flash occurred. He suffered burns requiring

hospitalization. DuPont Facilities Services (“DFS”), the unit in which Messina worked,

investigated the incident and found that Messina had violated its safety rules by failing to

shutdown and lockout the power in the area, wear protective gear, and prepare a job plan.

       Audrey Gidney, a supervisor who is African-American, concluded that Messina

should be fired. Messina’s direct supervisor, who is Caucasian, agreed. Gidney did not

have authority to fire Messina, and she sought approval from her supervisor, a Caucasian,

who directed her to present the recommendation to the executive staff for approval, or

“non-objection.” No one objected, and Messina was fired.

       Messina and his wife, through counsel, filed a complaint in the District Court

alleging that DuPont violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e to 2000e-17, by treating Messina differently than similarly situated employees

of a different race. Following discovery, DuPont moved for summary judgment. In

granting the motion, the District Court held that Messina had not established a prima facie




                                             2
case of reverse discrimination. This appeal followed.1

         We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review is de

novo. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 409 (3d Cir. 1999). In his brief,

Messina argues that the District Court erred in holding that he did not establish a prima

facie case of discrimination, and that he had shown that DuPont treated him differently

than similarly situated African-American employees for disciplinary purposes.

         As recognized by the District Court, the McDonnell Douglas2 burden-shifting

analysis applies to claims of reverse discrimination. Iadimarco v. Runyon, 190 F.3d 151,

158 (3d Cir. 1999). Under this analysis, once the plaintiff establishes a prima facie case

of discrimination, the burden then shifts to the employer to articulate some legitimate,

nondiscriminatory reason for its adverse action. See id. at 157. If the employer offers

some evidence of a legitimate, nondiscriminatory reason, a plaintiff must then show that

the stated reason was in fact pretext. Id. at 157-58.

         To establish a prima facie case of reverse discrimination, the plaintiff must present

sufficient evidence to allow a reasonable fact finder to conclude (given the totality of the

circumstances) that the defendant treated him less favorably than others because of his



  1
    The District Court also granted summary judgment for DuPont on the Messinas’ claim
that DuPont violated Delaware state law by firing Messina in retaliation for seeking
worker’s compensation benefits, and their claim for loss of consortium. In an earlier
order, we summarily affirmed these rulings because the Messinas had withdrawn these
claims.
  2
      McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

                                               3
race. Id. at 163. As we have stated, “[t]he evidentiary burden at this stage is rather

modest: it is to demonstrate to the court that plaintiff’s factual scenario is compatible

with discriminatory intent – i.e., that discrimination could be a reason for the employer’s

action.” Marzano v. Computer Science Corp., 91 F.3d 497, 508 (3d Cir. 1996). This

initial burden is not intended to be onerous. Id.

       Applying this standard, we conclude that Messina established a prima facie case of

discrimination. He relies on two incidents. The first involved an African-American

employee named Arthur Tate. In December 1999, DFS employees worked on a pipe

without properly locking out the valves controlling the flow of steam to the pipe. As a

result of this safety violation, four Caucasian DFS employees were demoted and placed

on probation. The company determined that Tate assisted on the project but did not

actively work on the pipe. Tate received an “informal contact,” or a verbal reprimand, for

failing to challenge the other workers. After this incident, DFS held training sessions on

the safety rules, and adopted its “Inviolable Safety Rules,” which include performing

lockouts when required.

       The second incident involved an African-American employee named Charles

Mason. In 2001, Mason worked on a piece of sheet metal duct work that was removed

from an oven belonging to Central Research & Development. DFS did not require a

lockout for this work. Mason left his work area, someone used the oven, and smoke filled

the area. Mason was given a “formal contact,” the second step in DuPont’s discipline



                                              4
policy, because he should have notified Central Research & Development that he was

leaving the area, so that it could perform a lockout in accordance with Central Research &

Development’s procedures.

       We recognize that Tate’s infraction occurred before the adoption of the Inviolable

Safety Rules, under which Messina was fired, and that Mason did not violate the

Inviolable Safety Rules. However, given the totality of the circumstances, including

Messina’s long-term employment with DFS and the fact that the Tate and Mason

incidents also involved failures to perform lockouts, we find sufficient evidence at the

prima facie stage for a reasonable fact finder to conclude that DFS treated Messina less

favorably than others because of his race.

       Although we disagree with the District Court that Messina failed to establish a

prima facie case, we conclude that DuPont is entitled to summary judgment because it

articulated a legitimate, nondiscriminatory reason for firing Messina, and Messina cannot

show that the reason is a pretext for discrimination. DuPont produced evidence that it

fired Messina because he violated the safety rules. The pretext analysis then focuses on

whether there is sufficient evidence from which a jury could conclude that the purported

reasons for the employer’s actions were in actuality a pretext for intentional race

discrimination. Jones, 198 F.3d at 412. Here, the record does not establish that a fact

finder would reasonably either disbelieve DuPont’s reason for firing Messina; or believe

that an invidious discriminatory reason was more likely than not a motivating or



                                              5
determinative cause of DuPont’s action. See id. at 413. To the contrary, the record

reflects that Messina’s act was the most serious safety violation his direct supervisor had

seen, and that DFS advised employees that a violation of the Inviolable Safety Rules

would be a terminable offense.3

       Accordingly, we will affirm the order of the District Court granting summary

judgment in favor of DuPont on other grounds. See Maschio v. Prestige Motors, 37 F.3d

908, 910 n. 1 (3d Cir. 1994) (stating that an appellate court may affirm on grounds

different than those used by the lower court in reaching its decision).




  3
    Messina relies on an email message to show discriminatory intent. About a year
before Messina’s safety violation, Audrey Gidney, in her role as communications director
of the People of Color Organization, sent an email to minority members at DFS about
safety issues when shopping. Messina sent Gidney an email suggesting that she send
emails like this to everyone, and that by not doing so, it seemed as though she wanted to
be separate from others, and “it just d[idn’t] look good to others.” App. at 95. Gidney
testified that she decided to send such information to other managers and leave its
distribution up to them. While this evidence shows how Messina felt about Gidney’s
action, it does not suggest a racial bias on Gidney’s part. Messina also argues that Gidney
did not recommend that the company fire Tate or Mason. Gidney, however, was not
involved in Tate’s incident, and the record does not establish that she was involved in
Mason’s incident.

                                              6
