2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-29-2007

Johnson v. Keebler-Sunshine

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3219

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Recommended Citation

"Johnson v. Keebler-Sunshine" (2007). 2007 Decisions. Paper 1731.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 06-3219

____________

DAVID M. JOHNSON, 

 Appellant

v.

KEEBLER-SUNSHINE BISCUITS, INC., 

a/k/a THE KEEBLER COMPANY

____________________________________

On Appeal From the United States District Court

For the District of New Jersey

(D.C. Civil No. 00-cv-02055)

District Judge: Honorable Jose L. Linares

_______________________________________

Submitted Under Third Circuit LAR 34.1(a)

January 3, 2007

Before: RENDELL, COWEN and VAN ANTWERPEN, Circuit Judges

(Filed January 29, 2007)

_____________

OPINION OF THE COURT

_____________

PER CURIAM

This is an appeal from the District Court’s grant of summary judgment in

favor of Keebler-Sunshine Biscuits, Inc. (“Keebler-Sunshine”) on David Johnson’s claim

that Keebler-Sunshine transferred him to a different position in violation of Title VII of
2

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Johnson is an

African-American male. Johnson asserted that Keebler-Sunshine discriminated against

him on the basis of his color, race and sex. We will affirm, albeit for different reasons

than held by the District Court. See Guthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141,

1145 n.1 (3d Cir. 1983)(stating an appellate court can affirm an order of the District Court

based upon different reasons if the record supports the judgment). 

I.

Keebler-Sunshine operated a plant which produced cookies, biscuits and

crackers in Sayreville, New Jersey. Johnson started his employment with KeeblerSunshine in 1989 in the baking and mixing department. Virginia Ramer, a Caucasian

woman, began her employment with Keebler-Sunshine in 1981. From approximately

1987 to 1992, Ramer held the pesticide control position. In 1992, Ramer began a

different position and Keebler-Sunshine offered the pesticide control position to Johnson. 

Johnson accepted and began training with Ramer. Johnson held the pesticide control

position until 1997. In December 1996, the plant temporarily closed for maintenance. 

During this time, many employees (including Johnson) were placed on layoff status. On

or about January 6, 1997, Keebler-Sunshine reopened the plant. After the plant was

reopened, approximately 160 employees were not retained. Additionally, Johnson was

one of about seven employees “bumped” from his position by co-workers who had

greater plant seniority. Ramer replaced Johnson in the pesticide control position. 
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Keebler-Sunshine transferred Johnson to a “sanitor/machine cleaner” position. Johnson

worked in various positions within the plant until the plant was closed down permanently

in 1999. 

In April 2000, Johnson filed his complaint in the District Court. 

Specifically, Johnson asserted that his transfer from the pesticide control position to the

“sanitor/machine cleaner” position was based on his race, color and sex. After the close

of discovery, Keebler-Sunshine successfully moved for summary judgment. Specifically,

the District Court determined that Johnson failed to show a prima facie case because he

did not establish an inference of discrimination. Johnson timely filed a notice of appeal. 

II.

We review the grant of summary judgment de novo. See McGreevey v.

Stoup, 413 F.3d 359, 363 (3d Cir. 2005). Summary judgment is proper when, viewing the

evidence in the light most favorable to the non-movant, there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. See Saldana

v. KMart Corp., 260 F.3d 228, 232 (3d Cir. 2001); Fed. R. Civ. P. 56(c). 

III.

Claims of discrimination under Title VII are analyzed under the burdenshifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-

04 (1973). In order to show a prima facie case of racial discrimination, a plaintiff must

illustrate that: (1) he is a member of a protected class; (2) he was qualified for the
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position he held; (3) he suffered an adverse employment action; and (4) the circumstances

of the adverse employment action give rise to an inference of discrimination. See Jones

v. Sch. Dist. of Phila., 198 F.3d 403, 410-11 (3d Cir. 1999). If a plaintiff establishes a

prima facie case, the employer must come forward with a legitimate, non-discriminatory

reason for the adverse employment decision. See Goosby v. Johnson & Johnson Med.,

Inc., 228 F.3d 313, 318-19 (3d Cir. 2000)(citing Tx. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248, 254-56 (1981)). If the defendant meets this burden, the plaintiff must then

prove by a preponderance of the evidence that the legitimate reasons offered by the

defendant are merely a pretext for discrimination. See Jones, 198 F.3d at 410 (citing

Burdine, 450 U.S. at 252-53). In order to show pretext, a plaintiff must submit evidence

which: (1) casts doubt on the legitimate reason proffered by the employer such that a

factfinder could reasonably conclude that the reason was a fabrication; or (2) allow the

factfinder to infer that discrimination was more likely than not a motivating or

determinative cause of the employee’s termination. See Fuentes v. Perskie, 32 F.3d 759,

762 (3d Cir. 1994). “The non-moving plaintiff must demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

proffered reasons for its action that a reasonable factfinder could rationally find them

unworthy of credence, and hence infer that the employer did not act for [the asserted]

non-discriminatory reasons.” Id. (internal quotation marks and citations omitted). 

We agree with the District Court that Johnson satisfied the first three
 Keebler-Sunshine contested whether Johnson’s transfer constituted an adverse 1

employment action in the District Court. However, in its appellate brief, KeeblerSunshine does not contest the District Court’s finding that the transfer constituted an

adverse employment action. Therefore, this argument is deemed waived. See In re

Surrick, 338 F.3d 224, 237 (3d Cir. 2003)(stating that failure to identify or argue an issue

in an opening brief constitutes waiver of the argument on appeal). 

5

elements of establishing a prima facie case. However, we disagree with the District 1

Court’s conclusion that Johnson failed to show an inference of discrimination. The

parties agree that Johnson was replaced by Ramer, a Caucasian woman. While this Court

no longer requires a plaintiff to show that he was replaced by someone outside of the

protected class to establish an inference of discrimination, see Pivirotto v. Innovative

Sys., Inc., 191 F.3d 344, 347 (3d Cir. 1999), we find that this evidence establishes the

fourth and final element of a prima facie case in this case. See Wright v. Murray Guard,

Inc., 455 F.3d 702, 707 (6th Cir. 2006)(stating that a plaintiff establishes the fourth

element of a prima facie case if he was replaced by someone outside the protected class or

was treated differently than similarly-situated, non-protected employees); Maynard v. Bd.

of Regents of Div. of Univs. of Fl. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir.

2003)(same); Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir.

2001)(stating that “the mere fact that a plaintiff was replaced by someone outside the

protected class will suffice for the required inference of discrimination at the prima facie

stage of the Title VII analysis”). Therefore, Johnson established a prima facie case.

Next, Keebler-Sunshine came forward with a legitimate non-discriminatory
6

reason for transferring Johnson from the pesticide control position. See e.g., Woodson v.

Scott Paper Co., 109 F.3d 913, 920 n.2 (3d Cir. 1997)(noting that the defendant’s burden

at this stage is relatively light and that it is satisfied if the defendant articulates a

legitimate reason for the adverse employment action). Keebler-Sunshine stated that

Johnson was “bumped” from the pesticide control position by Ramer because she had

more plant seniority and could perform the job. Indeed, the Collective Bargaining

Agreement between Johnson’s union and Keebler-Sunshine provides that in the event of a

layoff, an employee may “bump” another employee out of a position as long as she has

greater seniority and has the ability to perform the work.

Because Keebler-Sunshine came forward with a legitimate nondiscriminatory reason for the transfer, Johnson must show that this reason was pretextual. 

Johnson fails to establish a material issue of fact that Keebler-Sunshine’s legitimate nondiscriminatory reason for the transfer was pretextual. Specifically, Ramer had more plant

seniority than Johnson. Additionally, Keebler-Sunshine previously employed Ramer in

the pesticide control position and she had the ability to perform the work of the position. 

IV.

We have considered all the arguments and find that Johnson failed to create

a material issue of fact regarding whether Keebler-Sunshine’s legitimate nondiscriminatory reason for the transfer was pretextual. Accordingly, we will affirm the

grant of summary judgment in favor of Keebler-Sunshine.