IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANGELA CHEATOM : CIVIL ACTION

: NO. 05-251

Plaintiff, :

:

v. :

:

BURGER KING CORPORATION :

:

Defendant. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. FEBRUARY 22, 2006

Before the Court are defendant Burger King

Corporation’s motion for summary judgment (doc. no. 21) and

plaintiff Angela Cheatom’s response (doc. no. 26) in this

employment discrimination action.

I. BACKGROUND

Plaintiff, Angela Cheatom, an African American female,

brings this action against defendant, Burger King Corporation,

asserting a claim of race discrimination in violation of 42

U.S.C. § 1981. Plaintiff makes a number of allegations in

support of her claim. Specifically, plaintiff alleges that while

she was an Assistant Manager at the Ridley Park Burger King

restaurant during the summer of 2002, plaintiff overheard Wayne

Holden, a white Manager of the Ridley Park Burger King restaurant

and one of plaintiff’s supervisors, tell a fellow employee that

Burger King needed to hire more white employees and that the

Case 2:05-cv-00251-ER Document 29 Filed 02/22/06 Page 1 of 17
Plaintiff uses the word “robbery” to refer to a theft 1

whereby an employee stole money from a Burger King safe inside

the restaurant. There was no “robbery” in the legal sense, which

Pennsylvania law defines as involving an element of inflicting or

threatening to inflict serious bodily injury or the use of force. 

See 18 Pa. Cons. Stat. § 3701(a) (2005). 

2

black employees worth keeping should be kept in the back of the

store. Plaintiff also alleges that during the course of her

employment, John Young, a white Company Business Manager who

functioned as both plaintiff and Wayne Holden’s superior,

commented that too many Chester people, meaning African

Americans, were employed by Burger King, and that not enough

Sharon Hill people, meaning white people, were working for the

company. Plaintiff further alleges that she was terminated on

February 18, 2003 due to her race although the purported reason

offered for her termination is that while she was working as

Assistant Manager on February 17, 2003 when the Ridley Park

Burger King was “robbed,” she left the safe unlocked and 1

unattended. Defendant offered this reason for plaintiff’s

termination, plaintiff alleges, despite the fact that Burger King

management had notice that the lock on the safe had been broken

for some time. In addition, plaintiff alleges, a white manager

on duty at the time of a “robbery” was not terminated. 

Based on the abovementioned allegations, plaintiff

requests injunctive relief against further acts of

discrimination, reinstatement to the position plaintiff would

Case 2:05-cv-00251-ER Document 29 Filed 02/22/06 Page 2 of 17
3

have occupied or, in lieu thereof, front pay, back pay with

interest, punitive damages, compensatory damages for plaintiff’s

aggravation, anxiety, lost wages and benefits and attorney’s fees

and costs.

II. DISCUSSION

Defendant Burger King filed this motion for summary

judgment, arguing that plaintiff cannot make out a prima facie

case of race discrimination nor can she overcome the legitimate

non-discriminatory reason for her termination offered by Burger

King. Plaintiff responds that she can make out a prima facie

case of discrimination and that there is evidence of pretext

revealed in the deposition testimony of her supervisor and other

employees’ observations of racist comments made by supervisory

personnel.

A. Standard for Summary Judgment.

A court may grant summary judgment only when “the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). A fact is “material” only if its

existence or non-existence would affect the outcome of the suit

under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.

Case 2:05-cv-00251-ER Document 29 Filed 02/22/06 Page 3 of 17
4

242, 249 (1986). An issue of fact is “genuine” only when there

is sufficient evidence from which a reasonable jury could find in

favor of the non-moving party regarding the existence of that

fact. Id. In determining whether there exist genuine issues of

material fact, all inferences must be drawn, and all doubts must

be resolved, in favor of the non-moving party. Coregis Ins. Co.

v. Baratta & Fenerty, Ltd., 264 F.3d 302, 305-06 (3d Cir. 2001)

(citing Anderson, 477 U.S. at 248).

Although the moving party bears the burden of

demonstrating the absence of a genuine issue of material fact, in

a case such as this, where the non-moving party is the plaintiff,

and therefore, bears the burden of proof at trial, that party

must present affirmative evidence sufficient to establish the

existence of each element of her case. Coregis, 264 F.3d at 306

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). 

Accordingly, a plaintiff cannot rely on unsupported assertions,

speculation or conclusory allegations to avoid the entry of

summary judgment, see Celotex, 477 U.S. at 324, but rather, she

“must go beyond the pleadings and provide some evidence that

would show that there exists a genuine issue for trial.” Jones v.

U.P.S., 214 F.3d 402, 407 (3d Cir. 2000).

B. The McDonnell Douglas Paradigm.

Plaintiff brings a claim of race discrimination under

42 U.S.C. § 1981. The Title VII standard established under

Case 2:05-cv-00251-ER Document 29 Filed 02/22/06 Page 4 of 17
5

McDonnell Douglas also applies to § 1981 claims. Schurr v.

Resorts Int’l Hotel, Inc., 196 F.3d 498-99 (3d Cir. 1999). The

McDonnell Douglas paradigm applies to employment discrimination

cases in which the plaintiff offers indirect or circumstantial

proof of discrimination, as opposed to direct proof. Here,

plaintiff has not offered any direct evidence of race

discrimination, therefore, McDonnell Douglas applies. 

Under McDonnell Douglas, the plaintiff must first

“produce evidence that is sufficient to convince a reasonable

factfinder to find all of the elements of a prima facie case.” 

Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d

Cir. 1997) (quoting St. Mary's Honor Center v. Hicks, 509 U.S.

502, 506 (1993)). If the plaintiff establishes a prima facie

case, “the burden of production (but not the burden of

persuasion) shifts to the defendant, who must then offer evidence

that is sufficient, if believed, to support a finding that it had

a legitimate, nondiscriminatory reason for the discharge.” Id.

(citing Hicks, 509 U.S. at 506-07). If the defendant articulates

a legitimate, non-discriminatory reason for the adverse

employment action, the employer satisfies its burden of

production. See id. (citing Hicks, 509 U.S. at 507-08). 

The plaintiff may then “survive summary judgment . . .

by submitting evidence from which a factfinder could reasonably

either (1) disbelieve the employer's articulated reasons; or (2)

Case 2:05-cv-00251-ER Document 29 Filed 02/22/06 Page 5 of 17
6

believe that an invidious discriminatory reason was more likely

than not a motivating or determinative cause of the employer's

actions.” Id. at 1108 (citing Fuentes v. Perskie, 32 F.3d 759,

764 (3d Cir. 1994)). With regard to the showing required of

plaintiff, 

To discredit the employer's proffered reason,

however, the plaintiff cannot simply show that

the employer's decision was wrong or mistaken,

since the factual dispute at issue is whether

discriminatory animus motivated the employer,

not whether the employer is wise, shrewd,

prudent, or competent. Rather, the non-moving

plaintiff must demonstrate such weaknesses,

implausibilities, inconsistencies ,

incoherencies, or contradictions in the

employer's proffered legitimate 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.” While this standard places a

difficult burden on the plaintiff, “it arises

from an inherent tension between the goal of

all discrimination law and our society's

commitment to free decisionmaking by the

private sector in economic affairs.”

Fuentes, 32 F.3d at 765 (internal citations omitted). Finally,

courts should keep in mind that “[a]lthough intermediate

evidentiary burdens shift back and forth under this framework,

‘the ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against the plaintiff

remains at all times with the plaintiff.’” Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Tex.

Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

Case 2:05-cv-00251-ER Document 29 Filed 02/22/06 Page 6 of 17
7

1. Plaintiff can establish a prima facie case of 

race discrimination.

To establish a prima facie case of race discrimination,

plaintiff must demonstrate that (1) she is a member of a

protected class; (2) she suffered an adverse employment action;

(3) she was qualified for the position; and (4) other employees

who are not members of a protected class were treated more

favorably or she was discharged under the circumstances giving

rise to an inference of unlawful discrimination. See Goosby v.

Johnson & Johnson Med., Inc., 228 F.3d 313, 318-19 (3d Cir.

2000); Rotteveel v. Lockheed Martin Corp., No. 01-6969, 2003 U.S.

Dist. LEXIS 12329, at *19-20 (E.D. Pa. July 15, 2003). Here,

prima facie elements one and two are satisfied. Plaintiff is an

African-American woman, and therefore qualifies as a member of a

protected class. She was terminated, and therefore suffered an

adverse employment action. Prima facie elements three and four

are in dispute. 

a. Plaintiff was qualified for the job.

Defendant argues that plaintiff is unable to show that

she was qualified for the position because she received numerous

sub-standard evaluations during her tenure at the company. In

addition, defendant argues that plaintiff cannot prove that other

employees outside of the protected class were treated more

favorably or that her discharge gives rise to an inference of

Case 2:05-cv-00251-ER Document 29 Filed 02/22/06 Page 7 of 17
8

discrimination. Defendant notes that another white manager,

Leonard Goldberg, was terminated within two weeks of a “robbery”

during his shift at another store, the same circumstances under

which plaintiff was terminated.

According to plaintiff, the focus should be on other

actions by defendant. First, plaintiff attempts to distinguish

whether she was qualified for the job from whether she adequately

performed, noting that the latter is relevant to the pretext

analysis. Plaintiff relies on her two years of prior employment

with satisfactory reviews to show she was qualified for the

position. Moreover, she points to deposition testimony from

Delma Wells, who became Corporate Business Manager in 2002, that

plaintiff would have been eligible for a higher position had she

had a different manager. The evidence of discrimination,

according to plaintiff, is that she was terminated under

circumstances giving rise to an inference of discrimination. The

inference, plaintiff argues, comes from Delma Wells’ statement

that there was “no rhyme, no reason” to the decision to terminate

after a “robbery.” Pl.’s Ex. B at 74. Moreover, other employees

testified that Wayne Holden and Delma Wells made racial remarks

on the job.

Plaintiff is correct that performance issues are best

left to the analysis of pretext under the burden shifting

paradigm. See Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983

Case 2:05-cv-00251-ER Document 29 Filed 02/22/06 Page 8 of 17
9

F.2d 509, 523 (3d Cir. 1992) (“[A] dispute [over qualifications]

will satisfy the plaintiff’s prima facie hurdle of establishing

qualification as long as the plaintiff demonstrates that ‘she was

sufficiently qualified to be among those persons from whom a

selection, to some extent discretionary, would be made.’”); Jalil

v. Avdel Corp., 873 F.2d 701, 707 (3d Cir. 1989) (holding that

employers’ defenses such as insubordination, poor performance and

misconduct are more logically raised to rebut plaintiff’s prima

facie case; these defenses are “plainly [] not something the

plaintiff must disprove to succeed at the first level of proof”). 

Therefore, plaintiff need only show she possessed the necessary

“training and experience for the job from which [s]he was

discharged.” Turner v. Schering-Plough Corp., 901 F.2d 335, 342

(3d Cir. 1990). Plaintiff points to her two years as an

assistant manger to show she was qualified for the job. That is

enough to satisfy the prima facie element that plaintiff is

qualified for the job. See, e.g., Carter v. Potter, No. 02-7326,

2004 U.S. Dist. LEXIS 25677, at *31 (E.D. Pa. Dec. 21, 2004)

(looking to plaintiff’s years of service at the post office to

determine that he was qualified for the job).

b. There is an inference of discrimination.

The requirement that the adverse employment action

occur under circumstances giving rise to an inference of

discrimination can be satisfied in several ways, and must be

Case 2:05-cv-00251-ER Document 29 Filed 02/22/06 Page 9 of 17
10

tailored to fit the context of the case. See, e.g., Carter, 2004

U.S. Dist. LEXIS 25677, at *28 n.8 (collecting cases, including

Pivirotto v. Innovative Sys., 191 F.3d 344, 357 (3d Cir. 1999)

(holding that in reduction-in-force cases, plaintiff satisfies

fourth element of prima facie case by showing that plaintiff “was

discharged, while the employer retained someone outside the

protected class”) (quoting Marzano v. Computer Sci. Corp., 91

F.3d 497, 503 (3d Cir. 1996); id. (stating that a plaintiff may

satisfy fourth element of prima facie case without proving that

employees outside the protected class were treated more

favorably, or that plaintiff herself was replaced by someone

outside the protected class) (citing Matczak v. Frankford Candy &

Chocolate Co., 136 F.3d 933, 939 (3d Cir. 1997))). Here, Delma

Wells statements that termination decisions after store

“robberies” had no rhyme or reason and that “numerous times

certain district mangers had robberies and nothing happened to

[them],” Pl.’s Ex. B at 74, is enough to create an inference of

discrimination. See, e.g., Pivirotto, 191 F.3d at 357

(“requirements of the prima facie case are flexible”). 

Therefore, plaintiff has proven a prima facie case of

race discrimination. The burden of production then shifts to the

employer to offer a legitimate non-discriminatory reason for

plaintiff’s discharge under the McDonnell Douglas paradigm. The

burden of persuasion remains at all times with the plaintiff.

Case 2:05-cv-00251-ER Document 29 Filed 02/22/06 Page 10 of 17
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2. Defendant has offered a legitimate nondiscriminatory reason for plaintiff’s discharge.

Defendant terminated plaintiff because the store was

“robbed” while she left the safe unlocked and unattended. 

Leaving the safe unlocked and unattended was in violation of

company policies and procedures. Def.’s Ex. N (stating that

“[t]heft of BKC property” can result in “performance counseling,

discipline and/or termination.”). Plaintiff cannot refute that

the safe should have been locked and should not have been left

unattended. Both parties agree that plaintiff committed a

serious security breach by leaving the safe unlocked and

unattended. Although she proffers reasons for her action, those

reasons are best evaluated in the discussion of pretext. 

Therefore, the defendant has offered a legitimate nondiscriminatory reason for plaintiff’s termination. Under the

McDonnell Douglas paradigm, the burden shifts back to plaintiff

to show that defendant’s proffered reason was pretext for

discrimination.

3. Plaintiff has not offered sufficient evidence to 

counter defendant’s proffered reason for 

termination.

In an effort to prove pretext, plaintiff offers the

following evidence. First, plaintiff emphasizes that the safe

was broken and had been for some time before the “robbery.” She

Case 2:05-cv-00251-ER Document 29 Filed 02/22/06 Page 11 of 17
Apparently, the keypad on the safe was badly worn and 2

damaged such that it was difficult to punch in the code to unlock

the safe. Also, the screen on the safe did not always read

properly. Plaintiff alleges that she reported this condition

repeatedly to Damika Sawyer, an African American manager and her

direct supervisor.

Delma Wells is the person who actually delivered the news 3

to plaintiff that she was terminated. Wells testified at her

deposition that Mike Hochniuk told Wells that plaintiff was to be

terminated. Further, Hochniuk’s direction came from human

resources personnel Lisa Sembrot. Pl.’s Ex. B at 44. Therefore,

there were three decisionmakers involved in the termination

process: Wells, Hochniuk and Sembrot.

12

claims to have informed defendant of the safe’s condition on

several occasions and complained of the safe’s age and condition

as a problem. In addition, she asserts that Delma Wells was 2

aware of the safe’s condition. Defendant disputes whether Wells

or William Cocco, the loss prevention manager at the store, were

aware of any problems with the safe. Moreover, defendant points

out that at no time was the safe inoperable such that it could

not be locked or unlocked by plaintiff. An assertion that the

safe was difficult to lock, defendant argues, is not commensurate

with plaintiff’s duty as an assistant manager to follow the cash

handling procedures and prevent loss.

Second, plaintiff notes that there is evidence of

disparate treatment of African American employees by Delma

Wells. That evidence consists of racial comments made by Wells 3

and witnessed by other employees. Plaintiff testified at

deposition that Wells would yell at black employees in front of

Case 2:05-cv-00251-ER Document 29 Filed 02/22/06 Page 12 of 17
Defendant argues that Wells’ “no rhyme, no reason” 4

statement was taken out of context in plaintiff’s brief. 

Defendant does not, however, offer any relevant portion of Wells’

deposition testimony in support of that allegation. Moreover,

the page of deposition testimony included in plaintiff’s exhibit

B (page 74) appears to be a general assertion regarding

enforcement of Burger King cash policies. The relevant language

reads:

13

customers, saying: “What is wrong with you? You’re stupid. You

look dirty. Did you wash up today; you look dirty?” or “You

black person, you can’t come in with a clean uniform?” Pl.’s Ex.

A at 102-03. In addition, plaintiff alleges disparate treatment

at the hands of Wayne Holden and John Young who purportedly spoke

of the need to hire less African Americans and to station African

American employees in the back of the restaurant out of patrons’

view. Plaintiff submitted an affidavit by Chasity Martinez, a

white former employee, alleging that Wayne Holden told her that

he wanted to get rid of black employees and then verbally abused

black crew members to force them to quit. Pl.’s Ex. G. Finally,

plaintiff again highlights Wells’ statement at deposition that

termination decisions were made with “no rhyme, no reason”

following store “robberies.” Pl.’s Ex. B at 74.

Plaintiff’s case, therefore, if taken in the light most

favorable to plaintiff, amounts to a broken safe of which

defendant was aware, one racial comment by decisionmaker Wells,

racial comments by non-decisionmakers Young and Holden and Wells’

“no rhyme, no reason” deposition testimony. Regardless of the 4

Case 2:05-cv-00251-ER Document 29 Filed 02/22/06 Page 13 of 17
Q. Tell me about that. What people, to your

knowledge, were not terminated for cash

violations who had cash violations?

***

A. A lot of these managers weren’t

terminated and there were robberies that

occurred numerous times in numerous different

districts and people were not terminated. 

And then sometimes people were terminated and

it made no rhyme, no reason. 

The standard on summary judgment requires that the evidence be

taken in light most favorable to the non-moving party, here the

plaintiff, therefore the Court will accept this statement as

presented by plaintiff, defendant having offered no evidence to

the contrary.

14

condition of the safe, plaintiff committed a serious security

breach by leaving the safe unlocked and unattended, as attested

to by both parties. The Third Circuit recognizes “that an

employer may have any reason or no reason for discharging an

employee so long as it is not a discriminatory reason.” Brewer

v. Quaker State Oil Ref. Corp., 72 F.3d 326, 332 (3d Cir, 1995). 

Whether defendant should have terminated plaintiff when she

alleged the safe was broken is a business decision that may or

may not have been correct. The Court is not a “super-personnel

department[]” that sits in judgment of business decisions. Id.

(quoting McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368,

373 (7th Cir. 1992)). Despite plaintiff’s allegations that she

warned her supervisor of the safe’s condition, she was terminated

for a non-discriminatory reason. See Def.’s Ex. N (“Acceptable

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15

Standards of Conduct and Discipline Policy” states that “[t]heft

of BKC property” can result in “performance counseling,

discipline and/or termination.”). Whether defendant ignored

plaintiff’s complaints about the safe does not amount to racial

animus. 

Moreover, there are three decisionmakers in plaintiff’s

termination, Mike Hochniuk, Lisa Sembrot and Delma Wells. Taken

in light most favorable to plaintiff, at most there is one stray

remark involving race on the part of one of three decisionmakers. 

There is no evidence that any racial remarks by Wells were

directed at plaintiff, but rather the allegation is that Wells

made the comment in plaintiff’s presence. See Fuentes, 32 F.3d

at 767 (“Stray remarks by non-decisionmakers or by decisionmakers

unrelated to the decision process are rarely given great weight,

particularly if they were made temporally remote from the date of

decision” (quoting Ezold v. Wolf, Block, Schorr and Solis-Cohen,

983 F.2d 509, 545 (3d Cir. 1992))). In addition, stray comments

by Young and Holden do not bear on plaintiff’s claim that she was

terminated based on race, as neither employee participated in the

decision to terminate her employment. Id. 

Finally, and most importantly, there is no evidence

that other employees outside of the protected class were treated

more favorably than plaintiff after their stores suffered a loss

due to theft. The one white manager addressed by the parties,

Case 2:05-cv-00251-ER Document 29 Filed 02/22/06 Page 15 of 17
16

Leonard Goldberg, was terminated after his store suffered such a

loss. Moreover, although Wells’ statement that such decisions to

terminate following theft of store property had “no rhyme, no

reason” helped plaintiff overcome the burden of proving her prima

facie case, that statement does not in and of itself amount to

“such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions” in defendant’s reason for

termination that a reasonable factfinder could find it “unworthy

of credence.” Fuentes, 32 F.3d at 765. Plaintiff, therefore,

has not offered sufficient evidence to counter defendant’s

legitimate reason for termination.

III. CONCLUSION

Based on the foregoing reasons, summary judgment will

be granted in favor of defendant. Plaintiff has not carried her

burden at step three of the McDonnell Douglas paradigm to show

the employer’s legitimate non-discriminatory reason for

termination was a pretext such that a reasonable factfinder could

disbelieve the employer’s proffered reason or believe the

employer was motivated by racial animus.

An appropriate order follows.

Case 2:05-cv-00251-ER Document 29 Filed 02/22/06 Page 16 of 17
17

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANGELA CHEATOM : CIVIL ACTION

: NO. 05-251

Plaintiff, :

:

v. :

:

BURGER KING CORPORATION :

:

Defendant. :

ORDER

AND NOW, this 22nd day of February, 2006, it is hereby

ORDERED that Defendant’s Motion for Summary Judgment (doc. no.

21) is GRANTED.

IT IS FURTHER ORDERED that JUDGMENT is entered in favor

of defendant and against plaintiff.

AND IT IS SO ORDERED.

S/Eduardo C. Robreno 

EDUARDO C. ROBRENO, J.

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