2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-20-2015

Lavar Davis v. Solid Waste Services Inc

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Recommended Citation

"Lavar Davis v. Solid Waste Services Inc" (2015). 2015 Decisions. Paper 902.

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_________________

No. 14-3091

_________________

LAVAR DAVIS,

 Appellant

v.

SOLID WASTE SERVICES, INC.,

T/D/B/A J.P. Mascaro & Sons

_________________

On appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 2-12-cv-05628)

District Judge: Hon. Eduardo C. Robreno

_________________

Submitted Pursuant to the Third Circuit L.A.R. 34.1(a)

March 20, 2015

Before: McKEE, Chief Judge, FUENTES, and RENDELL**, Circuit Judges

(Filed:August 20, 2015)

_________________

OPINION*

_________________

_________________

*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent. 

** The Honorable Marjorie O. Rendell assumed senior status on July 1, 2015.
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FUENTES, Circuit Judge:

LaVar Davis appeals the District Court’s order granting Solid Waste’s motion for 

summary judgment. For the reasons that follow, we affirm.

I.

Davis, a black male, worked for six years as a truck driver for Solid Waste, a 

waste services company. Davis alleges that during his employment there, he and other 

black drivers were subject to discriminatory treatment, mostly at the hands of Solid 

Waste’s General Manager Demetrio Macelak. Specifically, Davis alleges that black 

drivers were more likely than white drivers to be assigned to unsafe trucks, black drivers 

faced unfair disciplinary actions, and black drivers were often the targets of Macelak’s 

abusive language. In November 2011, Solid Waste terminated Davis’s employment, 

citing habitual tardiness and unexcused absences. Solid Waste’s disciplinary records 

indicate that, in 2010, Davis was late 33 times with five unexcused absences and, in 

2011, he was late more than 100 times with seven unexcused absences.

Davis and two other employees, Benjamin Gay and Thomas Johnson, filed 

separate suits against Solid Waste asserting violations of Title VII of the Civil Rights Act 

of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., among other claims. After these suits 

were consolidated, Solid Waste filed a motion for summary judgment, which the District 

Court granted.1 The District Court first held that Davis failed to rebut Solid Waste’s 

 

1

In the same order that granted Solid Waste’s motion for summary judgment, the District 

Court also granted Solid Waste’s motion to strike six declarations that the Plaintiffs had 

attached to their opposition to the summary judgment motion. In the District Court’s 

view, the declarations violated 18 U.S.C. § 1746 because they were unsigned and did not 
3

legitimate, nondiscriminatory reason for firing Davis, namely, his tardiness and absences. 

It next concluded that, while Solid Waste may not have fostered pleasant working 

conditions, there was no evidence of a hostile work environment for purposes of Title 

VII. Davis filed this appeal.2

II.

A.

Davis first argues that he was fired in violation of Title VII. To establish a prima 

facie discrimination claim under Title VII, a plaintiff must show that he is a member of a 

protected class, he is qualified for the position, he suffered an adverse employment 

action, and that the surrounding circumstances give rise to an inference of 

discrimination.3 Under the McDonnell Douglas burden-shifting framework, if a plaintiff 

makes a successful prima facie claim, “the burden of production shifts to the defendant to 

offer a legitimate, nondiscriminatory reason for the action.”4If the defendant offers such 

a reason, the burden of production shifts back to the plaintiff to show the defendant’s 

explanation was a pretext for discrimination.5

 

contain a statement that they were true under penalty of perjury. The District Court acted 

within its discretion in disregarding the statements in these declarations. See Woloszyn v. 

Cnty. of Lawrence, 396 F.3d 314, 323 (3d Cir. 2005).

2 The District Court had subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1367. 

Our jurisdiction is based on 28 U.S.C. § 1291. We exercise plenary review over the 

District Court’s grant of summary judgment and will affirm only if, “viewing the 

underlying facts and all reasonable inferences therefrom in the light most favorable to the 

party opposing the motion, we conclude that a reasonable jury could not rule for the 

nonmoving party.” E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 448 (3d Cir. 2015).

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

4 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).

5 Burton v. Teleflex, Inc., 707 F.3d 417, 427 (3d Cir. 2013).
4

Like the District Court, we will assume Davis has established a prima facie case of 

discrimination. The burden thus shifts to Solid Waste to offer a legitimate reason for 

firing Davis. Solid Waste has easily satisfied that burden here. Its attendance records

show that, in the two years prior to his termination, Davis had 12 unexcused absences and

was late more than 130 times. Davis received several warnings about these attendance 

issues, but his tardiness and absences continued unabated and in violation of company 

policy.6 The burden of production therefore returns to Davis to demonstrate pretext—a 

burden Davis fails to carry. Indeed, Davis’s appellate brief ignores the burden-shifting 

framework entirely. He does not offer any reason to doubt Solid Waste’s articulated 

justification for his dismissal. Moreover, at his deposition, Davis acknowledged being 

late to work a “large number of times.” Accordingly, we agree with the District Court 

that Davis has offered no evidence from which a factfinder could reasonably conclude 

that Davis’s termination was the result of racial animus. 

B.

Davis’s next argument under Title VII is that Solid Waste is liable for creating a 

hostile work environment. To establish this claim, a plaintiff must show, among other 

things, he suffered severe or pervasive discrimination on the basis of race.7 The relevant 

inquiry is not whether an employee’s workplace was generally hostile or abusive, but 

 

6 Henderson v. Nutrisystem, Inc., 634 F. Supp. 2d 521, 531-33 (E.D. Pa. 2009) (violating 

an employer’s attendance policy is a legitimate and nondiscriminatory reason for 

termination).

7 Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013).
5

whether the hostility was driven by intentional discrimination.8 Because such an 

environment must be severe or pervasive, isolated incidents or comments are generally

insufficient to state a claim.9

In advancing his claim, Davis first argues that black drivers were 

disproportionately assigned to operate four unsafe trucks known as FE-99, FE-104, FE116 and CT-15. He relies on Solid Waste’s truck logs, which indicate that in 2011, black 

drivers were assigned to one of these trucks, FE-116, a total of 86 times, while white 

drivers were assigned to the same truck 69 times. Davis also points to the deposition 

testimony of Benjamin Gay, who stated he believed black drivers were more likely than 

white drivers to be assigned to these dangerous trucks. Solid Waste responds that all 

drivers were assigned to newer and older vehicles alike. The four trucks identified by 

Davis, it adds, were spares that were used only when no other trucks were available. 

Moreover, Solid Waste’s records demonstrate that, in the year prior to his termination,

Davis drove FE-116 only five times and FE-99 only 21 times; there is no evidence that

Davis ever drove FE-104; and, Davis testified that he refused to operate CT-15 because 

he believed it was unsafe. Davis’s primary vehicle during this time was FE-121, which he 

drove 128 days between May and November 2011.

We agree with the District Court that Davis has failed to show that Solid Waste’s 

truck assignments support a hostile work environment claim. The scant statistical 

evidence Davis adduces regarding one truck does not overcome the absence of other 

 

8 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

9 See Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005).
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evidence of discrimination with respect to the truck assignments. Further, because Davis 

rarely used any of the four unsafe trucks, these assignments were not severe or pervasive. 

Nor has Davis explained how he was “detrimentally affected” by driving these trucks 

occasionally.10 Davis also was never disciplined for refusing to operate a vehicle due to a 

safety concern.

Next, Davis argues that black drivers were disproportionately disciplined for 

misconduct. Davis relies exclusively on Gay’s testimony that Solid Waste did not 

reprimand three white drivers who damaged company equipment. Beyond this bare 

assertion, Davis offers no evidence to support his claim that drivers of different races 

faced different disciplinary decisions. And, Davis does not argue that he was ever 

punished for something for which a similarly situated white driver was not punished. 

Davis’s unsubstantiated contention about Solid Waste’s disciplinary actions does not 

support a hostile work environment claim.

Finally, Davis argues that Macelak targeted black drivers with his abusive and 

profanity-laced language. Davis points to Gay’s testimony that during monthly meetings 

Macelak often looked at black drivers when going off on his tirades. Gay also testified 

that he overheard someone who sounded like Macelak using a racial slur to describe 

President Obama. Notably, however, Davis does not point to any evidence of Macelak 

ever personally targeting him in a discriminatory fashion. In any event, these types of

 

10 Mandel, 706 F.3d at 167.
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indirect, offhand comments and isolated incidents are insufficient to sustain a hostile 

work environment claim.

11

While Davis arguably has provided some evidence of unsafe working conditions, 

unfair disciplinary decisions, and an unprofessional boss, Title VII is not concerned with 

these issues. To support his claim of a hostile work environment, he was required to, but 

did not, produce evidence of intentional discrimination that was severe and pervasive.

Accordingly, viewing the record in the light most favorable to Davis, we hold that his 

hostile work environment claim fails as a matter of law. 12

III.

For these reasons, we affirm the District Court’s order granting Solid Waste’s

motion for summary judgment.

 

11 Caver, 420 F.3d at 262 (holding isolated incidents and offhand comments do not create 

a discriminatory environment that is severe or pervasive). 

12 The District Court also dismissed Davis’s claims for violations of the United States and 

Pennsylvania constitutions, as well as his claim for intentional infliction of emotional 

distress. Although Davis does not address these issues on appeal, we agree with the 

District Court that these claims are without merit.