                                                                   NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       __________

                                       No. 16-3776
                                       __________

                                  JAMIE MCKNIGHT,
                                            Appellant

                                             v.

                AIMBRIDGE EMPLOYEE SERVICE CORPORATION

                                       __________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                        (District Court Civil No. 2-15-cv-03461)
                       District Judge: Honorable John R. Padova

                       Submitted Under Third Circuit LAR 34.1(a)
                                    July 13, 2017

    Before: SMITH, Chief Judge, NYGAARD, and FUENTES, Circuit Judges


                            (Opinion Filed: October 26, 2017)
                                      __________

                                        OPINION*
                                       __________

NYGAARD, Circuit Judge.


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Jamie McKnight appeals the order of the District Court granting summary

judgment to defendant Aimbridge Employee Service Corporation, dismissing his Section

1981 and Title VII claims of race discrimination and retaliation. We conclude that the

appeal is wholly without merit and will affirm.

       McKnight asserts that Aimbridge Employee Service Corporation, which manages

the Hilton Garden Inn at which he was employed, discriminated against him on the basis

of race.1 McKnight identifies as African-American. He argues generally that the District

Court applied wrong standards to its review of his claims of racial discrimination and

retaliation. He says it was not lenient enough. He also contends that the District Court

ignored or misunderstood evidence that supports his claims.2 None of these arguments

are persuasive.

       We conclude that the District Court properly understood that the three-week

training provided by Aimbridge was a prerequisite for anyone who wanted to work in the

banquet position at the hotel. No one disputes that McKnight completed only one day of

this training. Therefore, the District Court did not misapprehend the nature of the

training, nor did it apply an inappropriate standard to analyze the qualifications element




1
  Magna Hospitality Group hired McKnight to work at the Hilton Garden Inn in June
2013 but Aimbridge took over management of the hotel in October 2013.
2
  McKnight must prove 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 under circumstances that could give rise
to an inference of intentional discrimination.” Mandel v. M & Q Packaging Corp., 706
F.3d 157, 169 (3d Cir. 2013) (quoting Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir.
2008)).
                                             2
of his case. It properly determined that McKnight’s failure to complete this mandated

training is evidence that he was not qualified for the banquet position.3

       McKnight alternately argues the District Court ignored that he was refused any

opportunity to train in spite of him “continually” attempting to be scheduled for training.

Yet, he admits there were communications with him and Aimbridge supervisors in June,

July and December 20144 in which Aimbridge supervisors either attempted to schedule

McKnight for training or asked him why he was not completing the training.5 He also

admits he made no effort to contact Aimbridge supervisors between August and

sometime in December 2014. McKnight urges us to ignore all of this and instead focus

on his testimony that he made numerous calls to Aimbridge supervisors in June, July and

August of 2014. This, he says, creates a factual dispute about whether Aimbridge refused

his efforts to get training, preventing summary judgment on the qualifications prong. But

he admitted that, with one exception in August, he did not leave messages when

Aimbridge supervisors did not answer his phone calls. Therefore, even with every


3
  After McKnight did not report for training on June 28, 2014, he worked one full day of
training on June 29, 2014. Jones does not contest that he did not attend training on June
28, but claims that Aimbridge was aware that he could be at the hotel on that day and
would attend on June 29. This dispute about whether he was scheduled for training on
June 28, and whether he missed it, is not material to our analysis.
4
  McKnight disputes Aimbridge’s claim that its supervisors made other calls to
McKnight. For summary judgment purposes, we will accept McKnight’s assertion as
true.
5
  He asserts that an Aimbridge supervisor, Erica Kim, made employment in the banquet
position contingent on him signing a document that prevented him from working in any
other position in the hotel. He says he refused to sign. But McKnight fails to show that
this act was discriminatory, and he negates the allegation altogether by stating that the
general manager soon after told him that signing this document was not necessary to
work in the banquet position.
                                             3
reasonable inference construed in McKnight’s favor, we are not persuaded that a factual

dispute exists. His admissions contradict his contention that Aimbridge refused him any

opportunity to train or work.6 Moreover, one unreturned phone call over a period of six

months does not reasonably ground McKnight’s claim that Aimbridge actively thwarted

his own efforts to get the training that he needed.

       Next, we reject his claim that defendant’s offer of the banquet position is in itself

evidence that he was and is qualified for the job. So, too, do we dismiss his claim that

establishing qualification for the position at the prima facie stage is solely focused on

whether he is able-bodied. The undisputed record makes clear that the hotel required

every person to train for three weeks before they were deemed qualified to work in a

banquet position. No more need be said.

       Finally, McKnight contends that the District Court ignored the second basis for

his assertion of race discrimination.7 McKnight claims that, after Aimbridge granted his

request to transfer from a kitchen job to a banquet job, it discriminated against him by

refusing to schedule him to work. He complains that Aimbridge never mentioned this

second discrimination claim at summary judgment, and that the District Court failed to

analyze it. As a result, McKnight says the claim survived summary judgment. There are

two problems with this argument.



6
  McKnight’s briefs gloss over the requirement to receive mandated training before he
could work in the banquet position.
7
  McKnight asserts this was a termination from the line cook position. The undisputed
record indicates that McKnight requested the transfer from line cook to the banquet
position.
                                              4
       First, Aimbridge addressed this very claim in its motion for summary judgment. It

argued that McKnight failed to allege a prima facie claim of discrimination because he

did not show that animus motivated the Aimbridge supervisor (Tammy Kim) to not

schedule him for work after he transferred from the kitchen to the banquet position.8 Yet,

McKnight’s response to Aimbridge’s motion against his discrimination claims focused

solely on the qualification prong of his claim (whether he was qualified for the banquet

job). He addressed the failure-to-schedule aspect of Aimbridge’s motion only in his

discussion of the retaliation claim. Therefore, McKnight never rebutted Aimbridge’s

claim that he failed to show a prima facie claim of discrimination based on his post-

transfer work schedule.

       Second, as McKnight acknowledges in briefing, the District Court dismissed

McKnight’s discrimination case entirely.9 Moreover, addressing McKnight’s retaliation

argument at summary judgment, the District Court explicitly dismissed the post-transfer

kitchen work schedule aspect of his suit in the context of his retaliation claims.

Therefore, McKnight’s arguments that the scheduling issue was never raised by

Aimbridge and never decided by the District Court are not supported by the record.



8
  McKnight construes this issue on appeal as focusing on Aimbridge’s refusal to schedule
him to work in the kitchen after he was transferred from there. McKnight never asserted
this claim at summary judgment. Rather, the claim was construed more generally as
Aimbridge’s failure to schedule him for work after it granted his transfer from the kitchen
to the banquet position.
9
  Since, before the District Court, McKnight did not dispute Aimbridge’s assertion that he
failed to proffer evidence of animus to support a racial discrimination claim arising from
the kitchen scheduling issue, the rationale for dismissal of this aspect of his claim is self-
evident.
                                              5
       Next we focus on McKnight’s claims of retaliation. The controversy centers upon

the causation prong of the retaliation claim.10 McKnight contends that Aimbridge

retaliated against him for complaining to the general manager of the hotel about racial

discrimination and for filing a discrimination claim with the EEOC. They retaliated, he

says, by holding an evaluation meeting and giving him a written warning for being late to

work, by setting up a development plan for him to follow, by sending him home early

after the evaluation meeting, and by refusing to schedule him in the kitchen after this

meeting.

       McKnight complains first that the District Court used an improper standard to

reach its judgment. The District Court ruled that, without specific evidence of

discrimination, adverse employment actions (the second prong of the analysis) cannot

include negative evaluations or written development plans. The District Court also ruled

that being sent home early was not an adverse action because he was paid for that full

day. It said that the lack of economic harm, or any alteration of the terms and conditions

of his employment, precludes defining this as an adverse action. McKnight asserts the

proper standard is whether such actions could dissuade a reasonable person from

complaining about his or her treatment.



10
  “To maintain a claim for retaliation” brought pursuant to § 1981 and Title VII, the
plaintiff is “first . . . required to establish that he [has] a prima facie case by tendering
evidence that (1) he engaged in protected activity, (2) his employer took an adverse
employment action against him, and (3) there was a causal connection between his
participation in the protected activity and the adverse employment action.” Estate of
Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 798 (3d Cir. 2010) (citing Moore v.
City of Philadelphia, 461 F.3d 331, 340–41 (3d Cir. 2006)).
                                               6
         Nonetheless, there were other actions that Ambridge did not dispute were adverse

(McKnights’s removal from the kitchen schedule after June 12, 2014, an Aimbridge

supervisor’s failure to schedule him for hours in the banquet position, and Aimbridge’s

termination of his employment). In these instances Aimbridge asserted non-retaliatory

reasons for taking each action. In light of this the District Court proceeded, in the context

of the McDonnell Douglas framework,11 to assess whether McKnight showed that

Aimbridge’s reasons for these other actions were merely pretextual. After reviewing

these claims, we have concluded that the District Court’s pretext analysis is applicable to

and dispositive of all the adverse actions McKnight asserts. Therefore, we now turn to

McKnight’s arguments regarding pretext.

         McKnight complains that the District Court wrongly used the but-for standard to

evaluate pretext in the retaliation arguments. However, our jurisprudence states the

following.

               ‘[T]he plaintiff must be able to convince the factfinder both
               that the employer's proffered explanation was false, and that
               retaliation was the real reason for the adverse employment
               action.’ Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500–01
               (3d Cir. 1997). To survive a motion for summary judgment
               in the employer's favor, a plaintiff must produce some
               evidence from which a jury could reasonably reach these
               conclusions. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.
               1994).

Moore, 461 F.3d at 342. Therefore, at summary judgment, a non-moving plaintiff must

create a material dispute of fact about the non-discriminatory reasons the employer

proffered for its action so that “a reasonable factfinder could rationally find [those

11
     McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
                                              7
reasons] ‘unworthy of credence’” and, consequently, infer that they were not the basis for

the employer’s action. Fuentes, 32 F.3d at 765 (quoting Ezold v. Wolf. Block, Schorr and

Solis-Cohen, 983 F.2d 509, 531 (1992)).

       We conclude the District Court properly ruled that the undisputed record fails to

establish any reasonable basis to even infer that the Aimbridge supervisors who allegedly

carried out the adverse acts (Erica Maher and Tammy Kim) were aware (at the time

relevant to these claims) that McKnight complained of race discrimination to the general

manager of the hotel.12 Likewise, there is no evidence that, at the time of the actions he

asserts, these supervisors had any knowledge of the EEOC discrimination complaint he

filed on June 10, 2014. This conclusion undermines all of McKnight’s bases for claiming

that the entire collection of adverse actions he presents were discriminatory. Therefore,

even if the District Court erred by applying an incorrect standard to assess some of these

actions at an earlier stage of the McDonnell Douglas analysis, such error is harmless.

       McKnight also maintains that evidence of the supervisors’ awareness of his

discrimination complaints is not needed at this stage of review and that he need only

provide evidence that a retaliatory motive was more likely than not. But as we noted

above, he is required at this stage to provide evidence showing that there is a material

dispute of fact. In our view, the District Court determined that McKnight did not meet


12
  McKnight presses his point by highlighting that the supervisor in question (Erica
Maher) displayed anger towards McKnight, had socialized with the general manager, and
knew of McKnight’s request to transfer to the banquet position, something he claims he
only told the general manager. The District Court rightly characterized these claims as
grounding only speculation about the supervisor’s knowledge of his racial discrimination
claims, not the reasonable inference that is required at summary judgment.
                                             8
his burden to show that Aimbridge’s proffered reason for termination, job abandonment,

was pretexual.13 Accordingly, we conclude that the District Court did not err.

      For all of these reasons, we will affirm the order of the District Court that granted

summary judgment in favor of Aimbridge, dismissing McKnight’s claims of racial

discrimination and retaliation pursuant to Title VII and Section 1981.




13
  McKnight asserts only that the general manager was aware of his complaint of racial
discrimination and the EEOC complaints when, six months later, he terminated
McKnight. However, in light of the undisputed record of McKnight’s conduct, or lack
thereof, in the months between his remarks, the complaint, and his termination, this is
wholly insufficient to meet his burden to establish pretext.
                                             9
