IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FRED SMITH : CIVIL ACTION

: NO. 05-525

Plaintiff, :

:

v. :

:

UNIVERSITY OF PENNSYLVANIA :

:

Defendant. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. September 15, 2006

Before the Court is defendant University of

Pennsylvania’s motion for summary judgment in this employment

discrimination claim (doc. no. 23). For the reasons set forth

below, the motion for summary judgment will be granted.

I. BACKGROUND

Plaintiff, Fred Smith, an African-American male, brings

this employment discrimination claim against his former employer,

the University of Pennsylvania, under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff started

working at the University of Pennsylvania’s Faculty Club in 1992. 

On May 30, 1995, however, plaintiff sustained a work-related

injury that kept him out of work for over eight years.

In July 1995, plaintiff filed an employment

discrimination charge against defendant with the Equal Employment

Opportunity Commission (“EEOC”). That charge was settled after

Case 2:05-cv-00525-ER Document 50 Filed 09/15/06 Page 1 of 20
Although it forms part of the basis of his current 1

claim, plaintiff has provided no additional information about the

1995 discrimination claim. At his deposition, plaintiff state

that he was “not permitted to say anything about that.”

Plaintiff’s doctor, John J. Bowden, Jr., D.O., P.C., 2

wrote in an undated letter that plaintiff was “released to return

to full duty with restrictions” that included refraining “from

any prolonged sitting, standing, no pushing, and no pulling and

prolonged walking. No lifting over 15 pounds.”

2

plaintiff brought a civil action against defendant.1

Plaintiff also filed a separate workers’ compensation

claim and collected workers’ compensation until March of 2003,

when the parties settled that claim. The written settlement

agreement did not address whether plaintiff would be reinstated

as an employee at the University of Pennsylvania. However, after

defendant made the settlement payment to plaintiff, defendant

requested that plaintiff voluntarily sign a resignation form. 

Plaintiff refused to sign the form.

On September 11, 2003, plaintiff’s doctor cleared

Plaintiff for full-time employment subject to certain

restrictions. Four days later, on September 15, 2003, plaintiff 2

sought to return to his former employment with defendant. 

According to plaintiff, he met twice with Dennis Deegan, the

Manager of Labor Relations at the University of Pennsylvania, who

at first told plaintiff that “he’ll see what he can do,” but then

later informed plaintiff that he was “trying hard to find

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Defendant asserts that Mr. Deegan denies ever making 3

such statement but accepts as true plaintiff’s averment to the

contrary for the purposes of summary judgment. Def.’s Statement

of Facts at 2, n. 1.

3

[plaintiff] something but he couldn’t.” Pl.’s Dep. at 37-40. 3

Plaintiff concedes that, at some point, Mr. Deegan informed him

that the Faculty Club was closed in 1999. Id. At 158-59.

Defendant now states that at the time plaintiff sought

reinstatement, it had in fact already closed the Faculty Club in

August of 1999, at which time Hilton Hotels Corporation began to

operate the facility as the Inn at Penn. Defendant further

explains that when it closed the Faculty Club, it discharged all

of the active full-time employees who were working there but

provided them the opportunity to apply for a vacant position at

either the University of Pennsylvania or at the new Inn at Penn.

After Mr. Deegan declined to reinstate plaintiff in

another position, plaintiff contacted Councilman Michael Nutter,

who subsequently wrote defendant inquiring as to the status of

plaintiff’s employment. Defendant responded to Councilman Nutter

in a letter dated November 10, 2003, stating that plaintiff was

“welcome” to reapply for any position at the University of

Pennsylvania for which he was qualified, as the Faculty Club had

ceased operations in his eight-year absence. Plaintiff did not

reapply for another position because he believed he was already

an employee of defendant.

Nearly six months later, on May 20, 2004, plaintiff

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Plaintiff’s complaint does not allege discrimination 4

under the Americans with Disabilities Act, although that

allegation was included in his EEOC charge filed May 20, 2004. 

Plaintiff has prolonged the adjudication of defendant’s 5

motion for summary judgment by filing several successive motions

to compel discovery and two motions for a continuance under Rule

56(f). The Court granted the plaintiff’s first motion to compel

and motion for a continuance pursuant to Rule 56(f), and denied

plaintiff’s remaining two motions to compel and its second motion

for a continuance under Rule 56(f) to permit further discovery.

4

filed a charge of discrimination with the EEOC alleging that he

was denied reinstatement to his former position at the Faculty

Club by defendant in violation of Title VII of the Civil Rights

Act and the Americans with Disabilities Act. Plaintiff alleged

that defendant refused to allow plaintiff to return to work

because plaintiff had filed a prior successful EEOC charge and

discrimination lawsuit against defendant and because defendant

did not want to provide plaintiff with an accommodation for his

disability. Although plaintiff signed the original EEOC charge,

nearly three months later, on August 4, 2004, plaintiff sent a

letter to the EEOC to amend his EEOC charge to include a claim of

discrimination based on race, alleging that the EEOC had

mistakenly not included that claim in his initial complaint. On

November 30, 2004, the EEOC issued a right-to-sue letter.

On February 4, 2005, plaintiff filed the instant action

asserting two Title VII claims: (1) a claim of race

discrimination, and (2) a claim of retaliation for engaging in a

protected activity. After a protracted period of discovery, 4 5

Case 2:05-cv-00525-ER Document 50 Filed 09/15/06 Page 4 of 20
5

defendant’s motion for summary judgment is now ripe for

consideration.

II. DISCUSSION

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.

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,

where the non-moving party is the plaintiff, who bears the burden

Case 2:05-cv-00525-ER Document 50 Filed 09/15/06 Page 5 of 20
6

of proof at trial, that party must present affirmative evidence

sufficient to establish the existence of each element of his

case. Coregis, 264 F.3d at 306 (citing Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986)). Accordingly, the 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, he “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.

In McDonnell Douglas Corp. v. Green, the Supreme Court

created a three-step scheme for structuring the presentation of

evidence in discriminatory treatment cases under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et seq. 411 U.S.

792 (1973). Under the McDonnell Douglas scheme, the plaintiff

first must “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 succeeds in satisfying a prima facie

case, the burden of production shifts to the employer to

"articulate some legitimate, nondiscriminatory reason for the

Case 2:05-cv-00525-ER Document 50 Filed 09/15/06 Page 6 of 20
7

employee's rejection." McDonnell Douglas, 411 U.S. at 802. Once

the employer meets this relatively light burden by articulating a

legitimate reason for the unfavorable employment decision, the

burden rebounds to the plaintiff, who must then show by a

preponderance of the evidence that the employer’s explanation is

pretextual (thus meeting the plaintiff's burden of persuasion). 

Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).

At the summary judgment stage, a plaintiff may “survive

summary judgment ... by submitting evidence from which a

factfinder could reasonably either (1) disbelieve the employer's

articulated reasons; or (2) believe that an invidious

discriminatory reason was more likely than not a motivating or

determinative cause of the employer’s actions.” Id. at 764. As

the Third Circuit has explained: 

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,

i mplausibilities, 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

Case 2:05-cv-00525-ER Document 50 Filed 09/15/06 Page 7 of 20
8

private sector in economic affairs.”

Id. at 765 (internal citations omitted).

Finally, “[a]lthough intermediate evidentiary burdens

shift back and forth under this framework, the ultimate burden of

persuasion “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)).

C. Plaintiff’s Retaliation Claim.

Plaintiff alleges he was terminated in retaliation for

filing an EEOC charge in 1995. To establish a prima facie case

of retaliation, plaintiff must show that: (1) he engaged in a

protected activity; (2) he was discharged subsequent to or

contemporaneously with that protected activity; and (3) there is

a causal link between the protected activity and his termination. 

Woodson v. Scott Paper Corp., 109 F.3d 913, 920 (3d Cir. 1997). 

The McDonnell Douglas paradigm applies to a claim of retaliation. 

Id.

Here, plaintiff’s proofs successfully establish only

two out of the three elements of a prima facie case of

retaliation. Plaintiff engaged in a protected activity when he

filed an EEOC charge in 1995 for a charge of racial

discrimination. Plaintiff also filed a lawsuit for employment

Case 2:05-cv-00525-ER Document 50 Filed 09/15/06 Page 8 of 20
The parties disagree as to when precisely plaintiff 6

ceased to be under the employ of defendant. Plaintiff alleges

that he remained an employee until he attempted to return to work

in September 2003. He asserts that he first learned that he was

discharged through the letter of November 25, 2003 in which

defendant welcomed plaintiff to apply for another position. 

Plaintiff argues that defendant implicitly acknowledged that he

was still an employee as late as 2003 when, after it had settled

plaintiff’s workers’ compensation claim and made the settlement

payment to him, defendant requested that plaintiff sign a form

stating his resignation from employment. Defendant, on the other

hand, appears to contend that plaintiff should have long known

that he ceased to be an employee because his medical benefits

were terminated in 1996 and he never contacted anyone while he

was on leave to determine the status of his employment. Def.’s

Statement of Facts at ¶¶ 17-18. Regardless of whether plaintiff

was discharged in 1996 or 2003, however, it is undisputed that he

was discharged sometime after he engaged in the protected

activity in 1995. 

9

discrimination that was later settled by the parties. Moreover,

plaintiff was discharged subsequent to his protected activity of

filing the EEOC charge and civil lawsuit. Therefore, the first 6

and second prima facie elements of plaintiff’s retaliation claim

are satisfied.

Plaintiff has not shown, however, the causal link

between his protected activity and his termination which is

necessary to make out a prima facie case of retaliation. Over

eight years lapsed between plaintiff’s protected activity and his

alleged adverse employment action (i.e., defendant’s failure to

reinstate employment, during which time plaintiff had no contact

with defendant regarding the status of his employment. Although

passage of time alone does not insulate the employer from

liability, where enough time has passed to make improbable any

Case 2:05-cv-00525-ER Document 50 Filed 09/15/06 Page 9 of 20
10

causal nexus between the protected activity and the alleged

retaliation, plaintiff must be able to show that “the employer

engaged in a pattern of antagonism in the intervening period.” 

Woodson, 109 F.3d at 920 (citing Robinson v. SEPTA, 982 F.2d 892,

894-895 (3d Cir. 1993)).

In Robinson, for example, the plaintiff filed a

grievance and claim in 1984 under the Pennsylvania Human

Relations Act (“PHRA”) alleging race discrimination; almost two

years later, he was terminated from his position. 982 F.2d at

895. During that two-year intervening period, however, there was

evidence of a pattern of harassment consisting of plaintiff’s

supervisors “repeatedly disciplining him for minor matters,

miscalculating his points for absences from work, and generally

trying to provoke Robinson into insubordination.” Id. The trial

judge entered judgment in favor of plaintiff and defendant

appealed. Id. On appeal, the Third Circuit found that the

“series of events” that occurred after plaintiff filed his PHRA

complaint were sufficient to show that his PHRA complaint was

“causally linked to his termination” two years later. Id. The

Third Circuit Court of Appeals affirmed judgment for the

plaintiff, but cautioned that “[t]he temporal proximity noted in

other cases ... is missing here and we might be hard pressed to

uphold the trial judge's finding were it not for the intervening

pattern of antagonism that [defendant] demonstrated.” Id.

Case 2:05-cv-00525-ER Document 50 Filed 09/15/06 Page 10 of 20
The only reference to any alleged harassment from 7

plaintiff’s worker’s compensation claim is contained in

plaintiff’s response to defendant’s statement of facts:

Penn vigorously contested my workers’

11

In Woodson, the court similarly found a “pattern of

antagonism” between the protected activity and termination to

serve as a causal link in support of retaliation. The pattern

included: 

Scott’s ‘setting Woodson up to fail’ by hiring

him as a product system leader in the poorly

performing napkin division and then refusing

to provide him with adequate resources;

Scott’s failure to respond appropriately to

racist graffiti in its plant; and Scott’s

termination of Woodson pursuant to a ‘sham’

ranking process performed by individuals who

were not familiar with his employment record,

but only with his charges of discrimination.

109 F.3d at 921. Although the plaintiff in Woodson had filed his

administrative complaints in February 1990 and was terminated in

1992, the “pattern of antagonism” described above supported the

causal link required in a retaliation case where a close temporal

proximity is lacking. Id.

Here, to the contrary, plaintiff has not only offered

no evidence that he was subject to a “pattern of antagonism”

during the eight years between 1995 and 2003, but he has failed

to show any antagonism at all. At most, plaintiff cites the

dispute over his worker’s compensation claim as evidence of

retaliation against him. However, a single dispute with an 7

Case 2:05-cv-00525-ER Document 50 Filed 09/15/06 Page 11 of 20
compensation claim by, among other things,

requiring me (1) to undergo four IME’s, (2)

to get a lawyer to obtain the many favorable

rulings from workers’ compensation judges

that were necessary to force Penn to continue

to pay workers’ compensation benefits to me,

and (3) to undergo lengthy and hard

negotiations to finally reach a settlement of

my workers’ compensation claim. 

See Pl.’s Ans. to Def.’s Statement of Facts at ¶ 33. 

12

employer regarding a workers’ compensation claim over an eightyear period does not amount to a the “pattern of antagonism”

present in Robinson or Woodson. Plaintiff has thus failed to

demonstrate a causal link between his EEOC claim and his

subsequent termination.

Even if plaintiff was able to make out a prima facie

case of retaliation, however, defendant has articulated a

legitimate, non-discriminatory reason for terminating plaintiff

which plaintiff has not discredited as mere pretext. To the

contrary, defendant points out that while plaintiff was disabled

it closed the entire Faculty Club and eliminated all of the

positions at the Faculty Club, including plaintiff’s position. 

Moreover, the fact that plaintiff was out on disability when

defendant eliminated all the positions at the Faculty Club does

not warrant his receiving special treatment over and above the

treatment that all other Faculty Club employees received when

defendant terminated their positions. See In re Carnegie Center

Case 2:05-cv-00525-ER Document 50 Filed 09/15/06 Page 12 of 20
Defendant cites cases holding that a “reduction in 8

force” can be a legitimate, non-discriminatory reason to

discharge an employee. Neither party has previously argued that

closing the Faculty Club constituted a “reduction in force,” as

defined in the Third Circuit, and therefore the Court need not

address whether plaintiff has made a prima facie case for such a

claim. This is not the kind of case where an employer has laid

off a group of employees who are part of a protected class while

retaining others, based on a rating system that uses subjective

criteria. See, e.g., Tomasso v. Boeing Co., 445 F.3d 702, 710

(3d Cir. 2006) (plaintiff created a genuine issue of material

fact as to whether “reduction in force” was a pretext to

defendant laying him off due to his age). However, even if this

were a reduction in force case, plaintiff could not make out a

prima facie case as he has not shown that when he was terminated

“persons outside of the protected class were retained.” 

Armbuster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994).

13

Associates, 129 F.3d 290 (3d Cir. 1997 (where defendant

eliminated a number of positions, including plaintiff’s while she

was on maternity leave, defendant’s assertion that economic

considerations necessitated a reduction in force constituted a

legitimate, non-discriminatory reason for terminating

plaintiff).8

Based on the uncontested facts, the Court concludes

that plaintiff has failed to provide sufficient evidence from

which a fact finder could reasonably disbelieve defendant’s

stated reasons for terminating him or find that defendant was

more likely than not motivated by retaliatory animus. Fuentes,

32 F.3d at 765. Thus, summary judgment is appropriate on

plaintiff’s retaliation claim.

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14

D. Plaintiff’s Claim of Race Discrimination.

1. Exhaustion

As a threshold matter, defendant argues that

plaintiff’s claim of race discrimination is time-barred because

plaintiff failed to file his amended claim within three hundred

days after the alleged unlawful employment practice occurred.

A charge of discrimination filed with a state agency

must be “filed by or on behalf of the person aggrieved within

three hundred days after the alleged unlawful employment practice

occurred.” 42 U.S.C. § 2000e-5(e)(1). The Third Circuit has

held that federal courts will only entertain a discrimination

claim that was not expressly alleged to an administrative agency

if ”the acts alleged in the subsequent Title VII suit are fairly

within the scope of the prior EEOC charge, or the investigation

arising therefrom. Waiters v. Parsons, 729 F.2d 233, 237 (3d

Cir. 1984) (where plaintiff filed a Title VII suit for

retaliation, and earlier EEOC charge also alleged retaliation,

the court determined that the Title VII allegations were fairly

within the scope of the EEOC charge).

In this case, plaintiff filed his charge with the EEOC

on May 20, 2004. On August 5, 2004, plaintiff sent a letter to

the EEOC stating that his charge was “incomplete and written in

such a way that it is subject to several inaccurate

interpretations.” See Aug. 5, 2004 Letter to EEOC (Def.’s

Case 2:05-cv-00525-ER Document 50 Filed 09/15/06 Page 14 of 20
15

Statement of Facts at Ex G). Plaintiff attached to the letter an

“amended Charge of Discrimination,” that included the new

allegations of race discrimination. Id. Plaintiff claims that

“the person who wrote up my Charge ... must not have understood

what I was saying,” because he included allegations of race

discrimination in his initial EEOC charge. Id.

In his May 20, 2004 EEOC charge, plaintiff lists the

date the discrimination took place as September 15, 2003. EEOC

Form 5 (Def.’s Statement of Facts at Ex F). In his “amended

Charge,” plaintiff states “[r]espondent’s racial discrimination

against me started when respondent hired me in or around 1991 or

1992. The most recent act of discrimination took place on or

about September 15, 2003.” Aug. 5, 2004 Letter to EEOC (Def.’s

Statement of Facts at Ex G). By either account, the threehundred-day period within which the charge had to be filed began

to run on September 15, 2003 and lapsed on July 12, 2004. 

Here, defendant argues that plaintiff’s race

discrimination claim is not fairly within the scope of his EEOC

claim, and that plaintiff’s attempt to amend his EEOC claim on

August 5, 2004 was barred under the 300-day statute of

limitations, which expired on July 12, 2004. Defendant cites in

support of its argument the case of Antol v. Perry, 82 F.3d 1291,

1295-96 (3d Cir. 1996). In that case, the Third Circuit applied

Waiters to find plaintiff’s claim of gender discrimination barred

Case 2:05-cv-00525-ER Document 50 Filed 09/15/06 Page 15 of 20
Above the signature block where plaintiff signed his 9

name on the EEOC charge on May 20, 2004 appears the following

language: “I declare under penalty of oath that the above is true

and correct.”

16

because it was not fairly within the scope of his initial EEOC

claim that based on disability discrimination. Id. at 1296.

(“The [EEOC] investigation focused, quite properly we think, on

the gravamen of Antol’s complaint--disability discrimination. 

Neither the EEOC nor the agency were put on notice of a gender

discrimination claim.”)

Plaintiff’s original May 20, 2004 EEOC charge did not

include an allegation of race discrimination. Plaintiff has

attempted to cure this deficiency by alleging that the EEOC bears

full responsibility for leaving out his claim of race

discrimination and pointing out that he filed an “amended Charge”

that included such a claim.

Plaintiff cannot absolve himself of responsibility so

easily. Plaintiff attested as to the accuracy of the original

EEOC charge when he signed it on May 20, 2004. He has not 9

explained why he did not correct the EEOC charge on May 20, 2004

when he signed the typed form; nor does he explain the reason for

his three-month delay in amending his charge to include a claim

of race discrimination. Nor has plaintiff shown how his race

discrimination claim is reasonably related to or fairly within

the scope of his disability and retaliation claims.

Case 2:05-cv-00525-ER Document 50 Filed 09/15/06 Page 16 of 20
17

Under the circumstances, plaintiff’s attempt to amend

his EEOC charge on August 5, 2004 was beyond the statutory time

provided by 42 U.S.C. § 2000e-5(e)(1) and does not justify this

Court allowing him to bring such a claim now. His failure to

allege race discrimination in his original EEOC charge bars his

ability to now bring a race discrimination claim in this court. 

See Waiters, 729 F.2d at 237; Antol, 82 F.3d at 1296.

2. Prima facie case

Even if plaintiff’s race discrimination claim was

timely, however, plaintiff has failed to make out a prima facie

case of race discrimination as required under the McDonnell

Douglas paradigm. Plaintiff must demonstrate that: (1) he is a

member of a protected class; (2) he suffered an adverse

employment action; (3) he was qualified for the position; and (4)

other employees who are not members of a protected class were

treated more favorably or he was discharged under circumstances

giving rise to an inference of unlawful discrimination. Goosby

v. Johnson & Johnson Med., Inc., 228 F.3d 313, 318019 (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). 

Plaintiff has satisfied the first three elements of his

prima facie case but fails once again to establish the last

element. Plaintiff is a member of a protected class, as

plaintiff is African-American. He suffered an adverse employment

Case 2:05-cv-00525-ER Document 50 Filed 09/15/06 Page 17 of 20
18

action when he was not allowed to resume his employment with

defendant. Moreover, there has been no dispute over plaintiff’s

qualifications for his job at the Faculty Club. Therefore, the

only issue before the Court with respect to plaintiff’s prima

facie claim of race discrimination is whether other employees who

are not African-American were treated differently or whether the

circumstances of plaintiff’s termination give rise to an

inference of discrimination. 

Plaintiff has not provided a scintilla of evidence that

other individuals who are not African-American were treated

differently than plaintiff when defendant closed the Faculty

Club. Defendant discharged all Faculty Club employees and

required all of them to reapply for a position with defendant or

the Inn at Penn regardless of their race. Defendant treated

plaintiff the same as other Faculty Club employees. Even after

defendant provided plaintiff during discovery with a list of all

EEOC and PHRC complaints filed by non-professional employees

against defendant dating back to January 1, 2000, plaintiff has

been unable to point to one employee outside of his protected

class that defendant treated differently. Indeed, Plaintiff can

point to no evidence that plaintiff was discharged under

circumstances giving rise to an inference of unlawful racial

discrimination.

Finally, for the same reasons that plaintiff cannot

Case 2:05-cv-00525-ER Document 50 Filed 09/15/06 Page 18 of 20
19

establish that defendant’s legitimate, non-discriminatory reason

for not returning him to work was a pretext for retaliation,

plaintiff cannot establish that this reason was a pretext for

racial discrimination. Defendant closed the Faculty Club while

plaintiff was out on disability. Plaintiff did not reapply for a

position with defendant in 2003 after he was cleared by his

medical doctor to seek employment under certain conditions again. 

See Pl.’s Ans. to Def.’s Statement of Facts at ¶ 14.

Based on the uncontested facts, the Court

concludes that plaintiff has failed to provide sufficient

evidence from which a fact finder could reasonably disbelieve

defendant’s stated reasons for terminating him or find that

defendant was more likely than not motivated by racial

discrimination. Fuentes, 32 F.3d at 765. Thus, summary judgment

is appropriate on plaintiff’s racial discrimination claim.

III. CONCLUSION

For the reasons set forth above, the motion for summary

judgment will be granted.

An appropriate order will be entered.

Case 2:05-cv-00525-ER Document 50 Filed 09/15/06 Page 19 of 20
20

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FRED SMITH : CIVIL ACTION

: NO. 05-525

Plaintiff, :

:

v. :

:

UNIVERSITY OF PENNSYLVANIA :

:

Defendant. :

ORDER

AND NOW, this 15th day of September, 2006, it is hereby

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

23) is GRANTED.

IT IS FURTHER ORDERED that JUDGMENT shall be entered in

favor of defendant and against plaintiff.

IT IS FURTHER ORDERED that the case shall be marked

CLOSED.

AND IT IS SO ORDERED.

 S/Eduardo C. Robreno 

EDUARDO C. ROBRENO, J.

Case 2:05-cv-00525-ER Document 50 Filed 09/15/06 Page 20 of 20