NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 22-3286

_____________

SUKETU PATEL, 

Appellant

v. 

CF FRESH LLC d/b/a Country Fresh Mushroom Company

____________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2:22-cv-01010)

District Judge: Honorable Mark A. Kearney

____________________________

Submitted Under Third Circuit L.A.R. 34.1(a)

on October 26, 2023

Before: HARDIMAN, FREEMAN, and MONTGOMERY-REEVES, Circuit Judges

(Opinion filed: March 6, 2024)

__________

OPINION*

__________

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

constitute binding precedent.
2

FREEMAN, Circuit Judge.

Suketu Patel sued CF Fresh LLC for employment discrimination and retaliation. 

The District Court concluded that Patel’s evidence could not support either claim, so it 

entered judgment for the defendant. We will affirm.

I1

In November 2015, Patel entered into an employment agreement to serve as the 

Senior Vice President and Chief Financial Officer of Country Fresh Mushroom Company 

(“CFM”). Patel identifies as an Asian man of Indian ancestry and was CFM’s only 

executive-level employee of color. 

From November 2015 through January 2019, Patel reported to CFM’s Chief 

Executive Officer Edward Leo. Patel witnessed Leo routinely make racist comments and 

jokes about several minority groups, including Hispanics, African Americans, and Jews. 

Richard Ogorek, a consultant who did work for CFM from 2018 through January 2019,

exchanged racist jokes with Leo. 

In January 2019, Giorgi Global Holdings, Inc. (“Giorgi”) acquired CFM and 

renamed the company CF Fresh LLC (“CF Fresh”). At the time of the acquisition, three 

people in leadership positions at Giorgi discussed revisiting Patel’s employment 

agreement because it was inconsistent with the contracts of other Giorgi employees, all of 

1 We recount the facts in the light most favorable to Patel and draw all inferences in his 

favor. Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000).
3

whom worked at will.

2, 3

 Nonetheless, Giorgi assumed Patel’s employment agreement 

with CFM. 

After the acquisition, Patel reported directly to Giorgi’s Chief Financial Officer, 

Mike Sobota. Leo remained a consultant to Giorgi, was often present in the CF Fresh 

office, and continued to make racist comments and jokes. Ogorek was not present in the 

CF Fresh office post-acquisition.

During a meeting in May 2019, Joe Caldwell, president of one of CF Fresh’s

corporate affiliates, told Patel, “I’m not a nice guy. I’m not. I’m only nice to people to 

get information . . . . I can make life very difficult for people like you.” App. 115. Patel 

interpreted these remarks to be racially motivated and threatening. 

In mid-August 2019, Patel approached Sobota to request an increase in 

compensation. Sobota agreed to conduct an internal and external benchmark inquiry in 

connection with Patel’s request. The inquiry revealed that Patel received more 

compensation than people higher up in the company and people working for larger 

companies. On August 27, 2019, Giorgi’s Global General Counsel and Chief 

Compliance Officer Michael Rettig sent Sobota and Chief Human Resources Officer

2 The discussion was among Chief Financial Officer Mike Sobota, Chief Human 

Resources Officer Gina DeLillo, and Global General Counsel and Chief Compliance 

Officer Michael Rettig. 

3 The agreement provided for one-year terms that automatically renewed unless one party 

gave written notice of non-renewal two months before the term expired. The agreement 

also provided that either party could terminate the agreement for any reason or for no 

reason at all upon forty-five days’ written notice. 
4

Gina DeLillo a draft notice that would inform Patel that his contract would not be 

renewed. 

On August 30, 2019, Sobota met with Patel to share the results of the benchmark 

inquiry. Sobota told Patel that he was the third highest-paid finance employee globally 

and made enough money. In response, Patel said he was not being treated equally to his 

white counterparts. He also (for the first time) complained about Leo’s racist comments 

and the May 2019 threatening remarks from Caldwell. After Patel voiced his complaints, 

Sobota told Patel that CF Fresh would not renew his contract. Later that day, Patel 

received written confirmation that his contract would expire on November 2, 2019, and 

would not be renewed, although he would remain employed on an at-will basis. 

After the August 30 meeting, Sobota ceased his regular communications with 

Patel and instructed Patel not to attend a sales conference in California. 

In September 2019, Laura Matar, CF Fresh’s President and Chief Operating 

Officer, told Sobota that Patel was often difficult to locate when he should have been in 

the office. Following that discussion, an employee in the HR department tracked Patel’s 

attendance. He reported that, over a ten-week period from September to November 2019, 

there were 15 days when Patel did not come to the office, not counting vacation days. CF 

Fresh provides employees some flexibility for remote work, and before November 2019,

no one at CF Fresh told Patel that he needed to be in the office more often.

Sometime between September and November 2019, Sobota also learned that Patel 

and his subordinate, Nick Stalloni (a white man), had been charging lunches to their 

company credit cards. In November 2019, Sobota calculated that the two employees had 
5

expensed sixty-seven lunches between February 7, 2019 and November 12, 2019, totaling 

more than $3,500. Patel admits that he and Stalloni incurred those charges. A supervisor 

approved all of Patel’s expensed meals, and before November 2019, no one at CF Fresh 

spoke to Patel about expensing meals. 

On November 11, 2019, Patel emailed Matar to report that he and Stalloni were 

attending an off-site meeting that day. Sobota discovered that this was untrue. Patel 

admits that he lied about the off-site meeting to justify his and Stalloni’s desire to work 

from home. 

On November 18, 2019, Sobota and DeLillo confronted Patel about his absences

from the office, his expensed meals, and his dishonesty about his whereabouts on 

November 11. Patel did not respond to any of their questions. CF Fresh terminated 

Patel’s employment that day. That same day, it terminated Stalloni for the same 

misconduct. Sobota had previously terminated another employee for lying about his 

whereabouts during work hours. 

II

Patel obtained a right to sue letter from the EEOC and then sued CF Fresh. He 

claimed discrimination (based on race and ancestry) and retaliation under Title VII and 

42 U.S.C. § 1981, and breach of contract under Pennsylvania law. CF Fresh moved for 

summary judgment on all claims. Patel opposed the motion on the federal claims only. 

The District Court entered judgment for CF Fresh on all claims. It held that Patel 

failed to establish a prima facie case of race or ancestry discrimination. In the alternative, 

it held that Patel could not show that CF Fresh’s articulated nondiscriminatory motives
6

for firing him were pretextual. As to retaliation, the Court held that Patel made out a 

prima facie case but failed to show pretext. It also entered judgment for CF Fresh on the 

breach of contract claim. Patel timely appealed.

4

III

The District Court had subject-matter jurisdiction over Patel’s federal claims under 

28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.

We exercise plenary review over the grant or denial of a motion for summary 

judgment. Kengerski v. Harper, 6 F.4th 531, 536 (3d Cir. 2021). Summary judgment is 

appropriate where “there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). There is a genuine factual 

dispute “if the evidence is such that a reasonable jury could return a verdict for the 

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We may 

affirm on any basis supported by the record. TD Bank N.A. v. Hill, 928 F.3d 259, 270 (3d 

Cir. 2019).

IV

Title VII makes it unlawful for an employer to discriminate against an employee

based on the employee’s protected status, 42 U.S.C. § 2000e-2, or to “discriminate 

against any of his employees . . . because he has opposed any practice made an unlawful 

employment practice by this subchapter,” 42 U.S.C. § 2000e-3(a). Similarly, section

1981 protects individuals against discrimination and retaliation in the making and 

4 On appeal, Patel challenges the resolution of his federal claims only. 
7

enforcement of contracts, including at-will employment contracts. 42 U.S.C. § 1981; 

Canada v. Samuel Grossi & Sons, Inc., 49 F.4th 340, 346 (3d Cir. 2022) (citing CBOCS

W., Inc. v. Humphries, 553 U.S. 442, 457 (2008)). 

Claims of race and ancestry discrimination and claims of retaliation under Title 

VII and section 1981 are governed by the burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802 (1973);

5 see also Daniels v. Sch.

Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015). A complainant must first establish a 

prima facie case of discrimination or retaliation. McDonnell Douglas, 411 U.S. at 802; 

Daniels, 776 F.3d at 193. If the complainant successfully establishes a prima facie case, 

the burden then shifts to the employer to articulate a legitimate, nondiscriminatory or 

nonretaliatory reason for the adverse employment action. Id. If the employer does so, 

the complainant then must show that the employer’s stated reason for the action was a 

pretext for discrimination or retaliation. McDonnell Douglas, 411 U.S. at 804; Daniels, 

776 F.3d at 193.

We assume without deciding that Patel made out a prima facie case of race and 

ancestry discrimination and retaliation. Nevertheless, his claims fail because he did not

present evidence to demonstrate that CF Fresh’s articulated reasons for terminating his 

employment were a pretext for discrimination or retaliation.

5 “The substantive elements of a [racial discrimination] claim under § 1981 are generally 

identical to the elements of an employment discrimination claim under Title VII.” 

Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 256 (3d Cir. 2017) (alteration in 

original) (citation omitted). 
8

CF Fresh offers two nondiscriminatory and non-retaliatory reasons for firing Patel: 

(1) violating CF Fresh’s policy regarding expenses and remote work, and (2) dishonesty. 

To demonstrate pretext at the summary judgment stage, Patel must offer evidence from 

which the factfinder could reasonably either (1) disbelieve the employer’s articulated 

legitimate reasons, or (2) believe a discriminatory or retaliatory reason was more likely 

than not a motivating cause of the termination. Fuentes v. Perskie, 32 F.3d 759, 764 (3d 

Cir. 1994). He may do so by exposing “weaknesses, implausibilities, inconsistencies, 

incoherencies, or contradictions” in CF Fresh’s proffered legitimate reasons for 

terminating his employment that a reasonable factfinder could find “unworthy of 

credence.” Marra v. Phila. Hous. Auth., 497 F.3d 286, 306 (3d Cir. 2007) (citation 

omitted).

Patel admits that he lied about his whereabouts during work hours on November 

11. There is no dispute that Sobota previously fired an employee for dishonesty about his 

whereabouts during work hours, and Patel offers no evidence to suggest that CF Fresh’s 

decision to fire him on this basis was pretextual. So even if a jury discounted Patel’s 

purported violations of CF Fresh’s expense and remote work policies, it could not 

conclude that the remaining proffered reason for his termination (dishonesty) is unworthy 

of credence. Kautz v. Met-Pro Corp., 412 F.3d 463, 476 (3d Cir. 2005) (“Our Court has 

held that the plaintiff must demonstrate that each of the employer[’]s proffered 

nondiscriminatory reasons are pretextual.”).

* * *

For the reasons discussed above, we will affirm.