2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-17-2009

Tyra Coleman v. Blockbuster Inc

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4056

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Recommended Citation

"Tyra Coleman v. Blockbuster Inc" (2009). 2009 Decisions. Paper 248.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-4056

 

TYRA COLEMAN; RASHEEDAH GARNER; SHEILA LOVE; 

MARK TERRY; CHRISTIAN BLACKWELL-MURRAY; 

ERIC OLIPHANT; CRAIG WEST 

 

v.

BLOCKBUSTER, INC.

Tyra Coleman,

 Appellant

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 05-cv-04506)

District Judge: Honorable Eduardo C. Robreno

 

Submitted Under Third Circuit LAR 34.1(a)

September 21, 2009

 

Before: BARRY, FISHER and JORDAN, Circuit Judges

(Opinion Filed: November 17, 2009)

 

OPINION

 

BARRY, Circuit Judge
 Some of the other plaintiffs filed notices of appeal, but Coleman is the only one who 1

has pressed an appeal. 

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Plaintiff Tyra Coleman, along with others, brought this action in the U.S. District

Court for the Eastern District of Pennsylvania against her employer, Blockbuster, Inc.

(“Blockbuster”), alleging discriminatory training and termination of her employment in

violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and 42 U.S.C. § 1981. 

The District Court, after concluding that Coleman was unable to establish a prima facie

case of discrimination, granted Blockbuster’s motion for summary judgment, and

Coleman appealed. We will affirm. 

1

I. BACKGROUND

On September 8, 2003, Tyra Coleman was hired as a Blockbuster store manager

trainee by district manager Cari-Ann Urbanek. She was promoted to store manager at the

Grays Ferry, Philadelphia Blockbuster store a few months later. After a series of

disciplinary infractions during her nine months with Blockbuster, her employment was

terminated on June 22, 2004.

A. Blockbuster’s Progressive Discipline Policy

Blockbuster’s disciplinary policies aim to provide consistency when dealing with

employee performance issues and, at the same time, retain enough flexibility to take “into

consideration the nature of the policy violation as well as previous disciplinary actions for

each individual.” (App. at 331.) Blockbuster’s Employee Handbook makes clear that
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where there has been a performance violation, “the seriousness and history of [that]

violation must be taken into account.” (Id.) Corrective action usually progresses as

follows: verbal warning, written warning, final warning, and ultimately, termination. The

Handbook is explicit that an employee’s status is “at-will” and that disciplinary measures

may be accelerated. 

Violations prompting corrective action are broadly classified into three categories,

and while the “list of violations is not meant to be all-inclusive,” it is instructive. (Id.) 

Moreover, any corrective action ultimately “will depend on the exact nature of the

offense.” (Id. at 332.) Class A violations, or gross violations, are “very serious and may

be grounds for immediate termination.” (Id.) Examples of Class A violations include

borrowing money from the cash drawer, disregarding Blockbuster’s policies, engaging in

harassing behavior, and making racial slurs. “[G]ross negligence that endangers people

or property” is also a violation, and employees are prohibited from “[a]llowing any nonBlockbuster personnel . . . into the store or other Blockbuster facility outside of normal

business hours or into unauthorized areas during normal business hours.” (Id. at 335.) 

Class B violations, or major violations, include negligent conduct that could endanger

others and that puts “Blockbuster in a position of possible legal liability.” (Id.) “Opening

store late and/or closing store early without District Leader’s permission” is also

punishable as a Class B offense. (Id. at 336.) When an employee commits his or her first

Class B offense, “the employee may receive a final written warning and be advised that a
 Coleman was aware of the Operating Procedures. (App. at 764.) 2

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recurrence may be grounds for termination.” (Id.) Blockbuster’s Standard Operating

Procedures (“Operating Procedures”) also make clear that if an “employee is already on

Progressive Discipline at the time another violation is committed, he or she may be

subject to more stringent penalties even though the later violation is a different type from

the earlier one.” (Id. at 345.) Finally, Class C violations, or minor violations, include 2

excessive absenteeism, violation of company dress code standards, and “unsatisfactory

job performance.” (Id. at 336.) At the first commission of a Class C violation, the

employee “may be given a verbal warning . . . , [and on] further occurrences, one or more

written warnings may be conducted before termination.” (Id.)

B. Coleman’s Employment at Blockbuster

On January 14, 2004, Coleman was assigned to be the store manager at

Blockbuster’s Grays Ferry location. Stores are inspected to ensure that they are up to the

appropriate level of operational and merchandising standards. When making this

assessment, evaluators use the “Model Store Checklist,” and all stores must score an eight

or greater. (Id. at 386.) After an evaluation of Coleman’s store on March 2, 2004, the

store was given a score of 4.3. Coleman was given a supplemental checklist to improve

her store’s condition, and she represented at a meeting on March 9 that she would have

her store up to the appropriate standard by April 2. On April 9, however, the store was

again evaluated and given a score of 5. Coleman received written corrective action,
 Cycle counts are mandatory tasks used to track a store’s inventory. They require an 3

employee to “do blind counts on the required product, and then status the item to check

for variances” in inventory. (App. at 387.)

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which cited her “[f]ailure to meet performance standard - Store Standards.” (Id.) 

Coleman and Urbanek signed the Corrective Action Record on April 20, 2004.

Coleman received a second Corrective Action Report that same day, this time for

her failure to conduct cycle counts on a daily basis; indeed, there had been no cycle

counts for nine days. Despite signing the Corrective Action Report, Coleman maintained 3

that the failure to perform cycle counts is not listed as a Class A, B, or C offense, and that

she was not responsible for carrying out the cycle counts. The Corrective Action Report

notes that as store manager, “it is Tyra’s responsibility to ensure that all other employees

are also performing their cycle counts.” (Id. at 387.) This discipline was considered a

“final warning.” (Id.) 

A third Corrective Action Report was issued to Coleman on June 11, 2004. This

Report resulted from two alleged infractions: first, Coleman missed a mandatory team

meeting on June 7, 2004, and second, Coleman brought her two year-old grandson to

work with her. Coleman was instructed to attend all mandatory meetings and reminded

not to bring non-employees into the workplace either before or after the store’s scheduled

business hours. The consequences portion of the document reads: “Failure to improve

will result in termination of employment.” (Id. at 388.) This document notes Coleman’s

two prior offenses, is signed by both Coleman and Urbanek, and is marked “final
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warning.”

Coleman’s termination resulted from an episode that occurred on June 15, 2004. 

The exact details of what transpired that day are in dispute, but the basic narrative is not. 

At some point during her shift, Coleman learned that her minor son was having a medical

emergency and, having no one else to be with him, she called Urbanek to request

permission to close the store early and leave work. Urbanek’s exact response is unclear,

but Coleman’s understanding is that she said, “I’m not telling you not to attend to your

son, and I’m not telling you not to close the store.” (Id. at 764.) Coleman then claims

that Urbanek called her back and reminded her to make certain that the register was

properly secured. Whatever this exchange meant, it left Coleman with the impression that

she was free to do what she needed to do. On June 22, 2004, Coleman’s employment at

Blockbuster was terminated as a result of her closing the store early on June 15. The

Employee Separation Form noted Coleman’s disciplinary history: a written warning on

April 20 for “store appearance,” a final written warning on April 20 for “failure to protect

comp. assets - cycle counts,” and another final written warning on June 11 for

“attendance and non-employee in store.” (Id. at 384.) 

II. STANDARD OF REVIEW

We exercise plenary review of the District Court’s order granting summary

judgment and apply the same standard the Court was required to apply: whether there are

any genuine issues of material fact sufficient to permit a reasonable jury to find in favor
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of the plaintiff. Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 362 (3d Cir. 2008). In

conducting our review, we must view “the facts and any reasonable inferences drawn

therefrom in the light most favorable to the party opposing the motion.” In re Flat Glass

Antitrust Litig., 385 F.3d 350, 357 (3d Cir. 2004) (quoting InterVest, Inc. v. Bloomberg,

L.P., 340 F.3d 144, 160 (3d Cir. 2003)). We have jurisdiction under 28 U.S.C. § 1291.

III. DISCUSSION

Employment discrimination claims under Title VII and § 1981 are analyzed

pursuant to the burden-shifting framework articulated in McDonnell Douglas Corp. v.

Green. 411 U.S. 792, 802 (1973); see also Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d

486, 499 (3d Cir. 1999) (“[T]he elements of employment discrimination under Title VII

are identical to the elements of a section 1981 claim.”) (internal citations omitted). 

Accordingly, Coleman bore the initial burden of setting out a prima facie case of

discrimination by a preponderance of the evidence. See St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 506 (1993). The burden then shifts to the employer to “articulate some

legitimate, nondiscriminatory reason for the employee’s [termination].” McDonnell

Douglas, 411 U.S. at 802. Finally, the plaintiff must then prove by a preponderance of

the evidence “that the employer’s proffered reasons were merely a pretext for

discrimination, and not the real motivation for the unfavorable job action.” Sarullo v.

U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003); see Hicks, 509 U.S. at 507-08.

There is no dispute as to the first three elements of Coleman’s prima facie case: (a)
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she is African-American, (b) she was qualified for the position that she held, and (c) she

suffered an adverse employment action when she was terminated by Blockbuster. At the

fourth prong, however, the District Court determined that Coleman failed to offer

“evidence that she was terminated under circumstances that give rise to an inference of

unlawful termination.” (App. at 29.) Thus, the Court granted summary judgment on

Coleman’s Title VII and § 1981 claims.

On appeal, Coleman argues that the District Court applied too harsh a standard

when assessing this final prong of the prima facie case. We disagree. The Court

recognized that the aim of the prima facie test is to discern “whether the employer is

treating ‘some people less favorably than others because of their race, color, religion, sex,

or national origin.’” Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999)

(quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)). It

proceeded to look for just that, but did not find that Coleman’s case gave rise to an

inference of discrimination.

Even assuming arguendo that Coleman established a prima facie case, her claim

must nonetheless fail because she is unable to demonstrate that Blockbuster’s proffered

legitimate, nondiscriminatory reason for termination “was merely a pretext for unlawful

discrimination.” Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 319 (3d Cir.

2000). Demonstrating pretext is a “difficult burden.” Fuentes v. Perskie, 32 F.3d 759,

765 (3d Cir. 1994). Doing so requires that the plaintiff “point to some evidence, direct or
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circumstantial, from which a factfinder could reasonably either (1) disbelieve the

employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory

reason was more likely than not a motivating or determinative cause of the employer’s

action.” Fuentes, 32 F.3d at 764; see Hampton v. Tinton Falls Police Dep’t, 98 F.3d 107,

113 (3d Cir. 1996). Making a judgment about whether pretext exists is “a fact-based

inquiry,” Kautz v. Met-Pro Corp., 412 F.3d 463, 468 (3d Cir. 2005), and so the 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,” Fuentes, 32 F.3d

at 765 (internal citations omitted). 

Blockbuster came forward with solid evidence to demonstrate that the reason for

Coleman’s termination was her dereliction of duty. In accordance with its progressive

discipline policy, Coleman’s earlier performance deficiencies did not result in immediate

termination. She was first given a written warning for failing to keep the store up to

standards, and then issued a final warning for not making certain that routine cycle checks

were performed. When she missed a meeting and brought a young child into the store

against policy, she was not terminated but, rather, was issued a second written warning. 

By the time Coleman closed the store early on June 15, she had a record of disciplinary

problems, and had been issued two final warnings. Thus, the corrective action followed

the progression articulated in the Handbook. 
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Coleman disputes many of the facts related to the earlier disciplines. For example,

she argues that the cycle counts were not her responsibility and that she informed

Urbanek that she would miss the June 7 training session but make it up at a later date. 

Nonetheless, Coleman signed each of these reports at the time they were issued. She also

argues that certain of her actions that resulted in some form of discipline were not

explicitly listed as Class A, B, or C violations; however, the Handbook is clear at the

outset that the “list of violations is not meant to be all-inclusive.” (App. at 331.) As to

the June 15 store closure that resulted in her termination, whether Coleman legitimately

thought that she had permission to close is not material because there is no evidence even

suggesting that her termination was motivated by race. In any event, Coleman argues,

“you have to commit the same action over and over again before you’re terminated.” (Id.

at 360.) This argument is directly at odds with Blockbuster’s Operating Procedures,

which make clear that an employee who has already been disciplined “at the time another

violation is committed . . . may be subject to more stringent penalties even though the

later violation is a different type from the earlier one.” (Id. at 345 (emphasis added).) 

Coleman also cites what she describes as “evidence” in her effort to establish

pretext. She refers, without any substantiation, to a Caucasian employee in her store who

“got away with murder” and was not terminated. (Id. at 360.) She points to yet another

employee, Greg Zielinski, who was not terminated, but instead, given a final warning

when he closed his store too early. Coleman incorrectly describes him as “similarly
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situated,” but as Zielinski’s Corrective Action Record indicates, he had no prior

disciplinary infractions at the time he was disciplined. Coleman marshals other

“contextual evidence of discrimination,” but that “evidence” is page after page of

anecdotes overheard and unsubstantiated allegations, all of it having little or nothing to do

with her termination or with discrimination. 

IV. CONCLUSION

Coleman has not shown “weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions” in Blockbuster’s reasons for terminating her such that a

factfinder could “rationally find them unworthy of credence.” See Fuentes, 32 F.3d at

765; see also Jones v. Sch. Dist. of Phila., 198 F.3d 403, 413 (3d Cir. 1999). The order of

the District Court will be affirmed.