1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RODNEY ALAN WILSON, :

:

Plaintiff, : No. 4:04-CV-2784

:

v. : (Judge McClure)

:

PRIMUS TECHNOLOGIES, :

INC., :

:

Defendant. :

M E M O R A N D U M

October 12, 2005

BACKGROUND:

On December 22, 2004, plaintiff, Rodney Alan Wilson, filed a pro se

complaint alleging violations of Title VII of the Civil Rights Act of 1964, § 701, et

seq., as amended, 42 U.S.C. § 2000e et seq., (“Title VII”) and the Pennsylvania

Human Relations Act, 43 Pa. C.S.A. § 955 et seq., (“PHRA”), against his

employer, Primus Technologies Inc.. Wilson alleged that he was discriminated

against and harassed on a daily basis at work. Plaintiff’s complaint asserts that his

supervisors racially harassed him, and that the harassment culminated in his

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1The complaint also asserts that Dave Balsekat, one of plaintiff’s

supervisors, caused Wilson to lose his bonus by adding a day of vacation time. 

(Rec. Doc. No. 1, at 2.) Plaintiff has not elaborated on this allegation, nor come

forward with supporting evidence.

2Plaintiff has handwritten a series of statements in response to the numbered

statements set forth in defendant’s motion for summary judgment, (Rec. Doc. No.

10.).

2

demotion.1

On July 15, 2005, defendant filed a motion for summary judgment. Shortly

thereafter, defendant filed a brief in support of its motion for summary judgment. 

Plaintiff then failed to file a brief in opposition by the scheduled deadline. We then 

ordered plaintiff to file an opposing brief by September 2, 2005, or have his

complaint subject to dismissal for failure to prosecute and failure to comply with a 

court order. On September 2, 2005, plaintiff filed a Response to Defendant’s

Motion for Summary Judgment (Rec. Doc. No. 13),2 which the court will construe

as a brief in opposition to defendant’s motion for summary judgment. Defendant

did not file a brief in reply, and the matter is now ripe for our decision. For the

following reasons we will grant defendant’s motion for summary judgment, enter

judgment in favor of defendant and against plaintiff, and direct the Clerk to close

the case file.

DISCUSSION:

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I. LEGAL STANDARD

It is appropriate for a court to grant a motion for summary judgment “if 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 a judgment as a matter of law.” Fed. R. Civ.

P. 56(c).

“If the nonmoving party has the burden of persuasion at trial, ‘the party

moving for summary judgment may meet its burden by showing that the evidentiary

materials of record, if reduced to admissible evidence, would be insufficient to

carry the nonmovant's burden of proof at trial.’” Jalil v. Avdel Corp., 873 F.2d

701, 706 (3d Cir. 1989) (quoting Chippolini v. Spencer Gifts, Inc., 814 F.2d 893,

896 (3d. Cir. 1987)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In evaluating a motion for summary judgment the court will draw all

reasonable inferences from the evidence in the record in favor of the nonmoving

party. Am. Flint Glass Workers Union v. Beaumont Glass Co., 62 F.3d 574, (3d

Cir. 1995). The nonmoving party, however, cannot defeat a motion for summary

judgment by merely offering general denials, vague allegations, or conclusory

statements; rather the party must point to specific evidence in the record that

creates a genuine issue as to a material fact. See Celotex, 477 U.S. at 32;

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Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999).

II. FACTUAL BACKGROUND

First, we note that defendant complied with Local Rule 56.1 and filed a

separate and concise statement of uncontested material facts. (Rec. Doc. No. 10.)

Plaintiff, meanwhile, has not introduced any evidence into the record that

creates a genuine issue of material fact. Instead, plaintiff, who is pro se, made only

additional allegations when he wrote responses adjacent to various paragraphs in

defendant’s motion for summary judgment. (Rec. Doc. No. 13.) In order for

plaintiff to create a genuine issue of material fact he needed to make citations to

evidence in the record; otherwise, under Local Rule 56.1 the material facts set forth

by the moving party are deemed to be admitted.

Although plaintiff says that he told defendant’s counsel everything that was

done to him, the court notes that we only have before us those portions of

plaintiff’s deposition that defendant has provided us. Therefore, what follows is

largely taken from the defendant’s statement of material facts.

On or about October 11, 1999, plaintiff began his employment with the

defendant. Plaintiff was initially employed in defendant’s stockroom. Plaintiff had

problems with his work performance in the stockroom. On May 5, 2003, Wilson

Case 4:04-cv-02784-JFM Document 14 Filed 10/12/05 Page 4 of 16
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was transferred from the stockroom to defendant’s soldering department allegedly

because of his performance at work. When he was transferred, plaintiff’s terms

and conditions remained the same; including his rate of pay, benefits, and hours of

work.

After plaintiff was transferred to the soldering department he filed a

Workers’ Compensation claim. While waiting for a determination on his Workers’

Compensation claim, Wilson filed for disability benefits. Plaintiff was approved for

and received disability benefits for more than a year. Plaintiff testified at his

deposition that he was removed from defendant’s employment roster for a reason

unrelated to his race. (Rec. Doc. No. 10, Ex. at 13.)

Wilson knew to take any problems to defendant’s Human Resources

Manager, Samuel Shea. Plaintiff had taken work-related problems to Shea, and was

satisfied with the way that Shea had handled prior work-related problems. Wilson

testified that Shea had handled the issues he raised to him in a prompt and

professional manner. (Rec. Doc. No. 10, Ex. at 17.) 

III. WILSON’S TITLE VII & PHRA CLAIMS

At the outset, we note that PHRA claims are interpreted coextensively with

Title VII claims. Douris v. Genaurdi’s Family Markets, Inc., 132 Fed. Appx. 425,

425 n.1 (3d Cir. 2005) (citing Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir.

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1996)); Dennison v. Pennsylvania Dept. Of Corrections, 268 F. Supp. 2d. 387, 405

n.16 (M.D. Pa. 2003) (Munley, J.). Therefore, our analysis under Title VII applies

with equal force to Wilson’s claims under the PHRA.

Title VII makes it unlawful for an employer “to fail or refuse to hire or to

discharge any individual, or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s . . . race.” 42 U.S.C. § 2000e-2(a)(1).

A. Racial Discrimination Based On An Adverse Employment Action

When a court evaluates a summary judgment motion alleging racial

discrimination it employs the burden shifting analysis set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). First, in order to defeat a summary

judgment motion in a race discrimination case, a plaintiff must adduce sufficient

evidence to establish a prima facie case of discrimination. In order to establish a

prima facie case of racial discrimination a plaintiff must establish that: (1) that he is

a member of a protected class; (2) that he is qualified for the position; (3) that he

was subject to an adverse employment action; and (4) that employees not in the

protected class were treated more favorably, so as to give rise to an inference of

unlawful discrimination. Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 638

(3d Cir. 1993); see also Jones v. School Dist. of Philadelphia, 198 F.3d 403, 410-

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411 (3d Cir. 1999).

 Once the plaintiff has made a prima facie case of racial discrimination the

burden shifts to the defendant to come forward with admissible evidence that

supports a legitimate, nondiscriminatory reason for the adverse action. McDonnell

Douglas, 411 U.S. at 802. “If the defendant’s evidence creates a genuine issue of

fact, then the presumption of discrimination drops from the case.” Stewart v.

Rutgers, The State Univ., 120 F.3d 426, 432 (3d Cir. 1997) (citing Texas Dep’t

Cmty. Affairs v. Burdine, 450 U.S. 248, 260 (1981)). The burden then falls on the

plaintiff to show that the “‘employer’s proffered reason [for the employment

action] was not the true reason for the . . . decision’ but was instead pretextual.” 

Id. (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 508 (1993)).

The third element of a prima facie case of racial discrimination is the

production of sufficient evidence that plaintiff has been subject to an adverse

employment action. The United States Supreme Court has defined an adverse

employment action as:

A tangible employment action constitutes a significant

change in employment status, such as hiring, firing, failing

to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change

in benefits. . . . A tangible employment action in most

cases inflicts direct economic harm.

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3This “demotion” occurred on May 5, 2003. (Rec. Doc. No. 1, Ex.) At his

deposition, plaintiff testified that his release from employment with defendant was

not related to his race. (Rec. Doc. No. Rec. Doc. No. 10, Ex., at 13, lns. 19-24.) 

Plaintiff was removed from defendant’s employment roster in 2004, after receiving

disability benefits for more than a year. (Rec. Doc. No 10, Ex., at 12.) 

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Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 762 (1998).

The Third Circuit has defined an “adverse employment action” as “an action by an

employer that is ‘serious and tangible enough to alter an employee’s compensation,

terms, conditions, or privileges of employment.’” Storey v. Burns Int’l Sec. Servs.,

390 F.3d 760, 764 (3d Cir. 2004) (quoting Cardenas v. Massey, 269 F.3d 251, 263

(3d Cir. 2001); and Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.

1997)).

Defendant contends that in the instant case plaintiff has failed to “even state a

colorable claim that an adverse employment action of any manner has occurred.” 

(Rec. Doc. No. 11, at 6.) Plaintiff alleges, however, that he was “demoted” to the

soldering department.3 Defendant asserts that when he was transferred to that

department his rate of pay, benefits, and hours of work all remained the same and

that he had no changes in the terms or conditions of his employment. The Third

Circuit, however, has held that under certain circumstances a job transfer, even

without a loss of pay or benefits, could constitute an adverse employment action. 

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See Torre v. Casio, Inc., 42 F.3d 825, 831 n.7 (3d Cir. 1994); McGrenaghan v. St.

Denis Sch., 979 F. Supp. 323, 326 (E.D. Pa. 1997); see also Mondzelewski v.

Pathmark Stores, Inc., 162 F.3d 778, 787-88 (3d Cir. 1998) (transfer to a different

shift that included a loss in free time and which, as evidenced by affidavit, was

considered by workers as a “punishment shift” was sufficient evidence of an

adverse employment action to state a prima facie case). From plaintiff’s filings it is

clear that he is alleging that being transferred from the stockroom to the soldering

department was a punishment and that he lost privileges associated with his original

job because of his race. (See Rec. Doc. No. 13, at 2, ¶¶ 6-8.)

The McDonnell Douglas prima facie case has never been a pleading

requirement; it is the plaintiff’s initial evidentiary burden. See Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 511 (2002). The plaintiff has the burden of proof by

the preponderance of the evidence at the prima facie stage. Burdine, 450 U.S. at

253-54. Plaintiff’s failure to come forward with any evidence in support of his

allegations that his demotion to the soldering department impacted the privileges of

his job prevents him from establishing a prima facie case of discrimination. 

Plaintiff, in his response, has only indicated that “witnesses will come forth” to

prove that a tangible employment action was taken based on the plaintiff’s race. 

(Rec. Doc. No. 13, at 2.) Although the plaintiff’s burden of production to establish

Case 4:04-cv-02784-JFM Document 14 Filed 10/12/05 Page 9 of 16
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a prima facie case is not onerous, Wilson has only provided the court with vague

allegations that his transfer constituted a tangible employment action. Therefore,

we find that plaintiff cannot state that there was an adverse employment action, and

we now address his claim under a hostile work environment theory. 

B. Racial Discrimination Based On A Hostile Work Environment Theory

To the extent plaintiff’s claim for employment discrimination is based on a

hostile work environment theory, plaintiff must show that (1) he suffered intentional

discrimination because of race; (2) the discrimination was pervasive and regular; (3)

the discrimination detrimentally affected the plaintiff; (4) the discrimination would

detrimentally affect a reasonable person of the same race in that position; and (5)

the existence of respondeat superior liability. Aman v. Cort Furniture Rental Corp.,

85 F.3d 1074, 1081 (3d Cir. 1996); Ocasio v. Lehigh Family Health Ctr., 368 F.

Supp. 2d 370, 376 (E.D. Pa. 2003).

An actionable hostile work environment exists when “the harassment is so

severe and pervasive that it alters the conditions of the victim’s employment and

creates an abusive environment.” Weston v. Pennsylvania, 251 F.3d 420, 426

(citing Meritor Savs. Bank FSB v. Vinson, 477 U.S. 57, 65 (1986)). The Supreme

Court has outlined the substantive contours of behavior that constitutes a hostile

work environment, and has directed the lower courts to “look[] at all the

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circumstances” in determining whether an environment is sufficiently hostile or

abusive. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (quoting Harris

v. Forklift Sys. Inc., 510 U.S. 17, 23 (1993)). This multi-factor analysis includes

the courts’ looking at the “frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work performance.” 

Faragher, 524 U.S. at 788 (quoting Harris, 510 U.S. at 23); Ocasio, 368 F. Supp.

2d at 376. The Supreme Court then noted that, “simple teasing, offhand

comments, and isolated incidents (unless extremely serious) will not amount to

discriminatory changes in the terms and conditions of employment.” Faragher, 524

U.S. at 788 (citations and internal quotation marks omitted). In order for a claim to

be actionable, “[t]he plaintiff must subjectively perceive the environment to be

hostile or abusive, and conditions must be such that a reasonable person would

have the same perception.” Konstantopoulos v. Westvaco Corp., 112 F.3d 710,

715 (3d Cir. 1997) (citing Harris, 510 U.S. at 21).

Defendant asserts that, for numerous reasons, Wilson cannot succeed under

a hostile work environment theory. Defendant asserts that Wilson (1) has failed to

demonstrate sufficiently severe or pervasive behavior, (2) that his claims are timebarred, and (3) that defendant is entitled to an affirmative defense because of

Case 4:04-cv-02784-JFM Document 14 Filed 10/12/05 Page 11 of 16
4We note that defendant has not set forth what the employer’s

antiharassment policy was, and how it was communicated to its employees, which,

although not necessary in every case, Burlington Indus., Inc. v. Ellerth, 524 U.S.

742, 765 (1998), would certainly help defendant establish its affirmative defense.

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plaintiff’s failure to complain about the harassment when it was occurring.4

First, we turn to defendant’s argument that plaintiff is time-barred. 

Defendant asserts that plaintiff is governed by the 180-day filing rule under 42

U.S.C. § 2000e-5(e). This is erroneous; plaintiff is entitled to the extended 300-day

rule, even though he first filed with the EEOC more than 180 days after the alleged

discrimination. Pennsylvania is a deferral state with a worksharing agreement

between the PHRC and the EEOC. This agreement entitles civil rights plaintiffs to

the extended 300-day filing rule regardless of the state filing. See, e.g., EEOC v.

Commercial Office Prods., 486 U.S. 107, 124 (1988); Bailey v. United Airlines, 279

F.3d 194, 197 (3d Cir. 2002); Watson v. Eastman Kodak Co., 235 F.3d 851, 854

(3d Cir. 2000); Malone v. Specialty Prods. & Insulation Co., 85 F. Supp. 2d 503,

505 (E.D. Pa. 2000). 

When a plaintiff alleges a hostile work environment, as Wilson has in this

case, acts occurring more than 300 days before the date plaintiff filed with the

EEOC may be considered, so long as those acts are a part of the same hostile work

environment, and at least one act occurred within the 300 day limit. See Nat. R.R.

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5We note that plaintiff indicated in his initial EEOC filing that the latest date

of discrimination was November 3, 2003. (Rec. Doc. No. 1, Ex.) Under that more

recent date, plaintiff filed his EEOC complaint 210 days after the last alleged

discriminatory act.

13

Passenger Corp. v. Morgan, 536 U.S. 101, 116-19 (2002).

In the instant case, plaintiff filed his initial claim with the EEOC on May 31,

2004. (Rec. Doc. Doc. No. 1, Ex.) Plaintiff testified that from August 2003, when

he went on disability, through May 31, 2004, the defendant took no discriminatory

actions against him. (Rec. Doc. No. 11, Ex., at 49.)5 Thus, any acts which

plaintiff relies on to assert his hostile work environment claim occurred more than

180 days before he filed his complaint. However, some of those actions occurred

within 300 days; because some of the acts occurred within 300 days of plaintiff’s

EEOC filing, the court will also consider related acts that occurred more than 300

days prior to that filing. Therefore, defendant’s time-bar argument is unconvincing.

We now examine whether plaintiff has alleged acts which are sufficiently

severe or pervasive to create a hostile work environment. Plaintiff has asserted that

he was called race-related names by various employees and supervisors, including

on at least one occasion “nigger,” and another occasion “monkey.”

“Pervasive” incidents “must be more than episodic, they must be sufficiently

continuous and concerted.” Faragher, 524 U.S. at 787 n.1 (citations omitted); see

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also Harris v. Smithkline Beecham, 27 F. Supp. 2d 569, 578 (E.D. Pa. 1998)

(holding “[a] plaintiff cannot rely upon casual, isolated, or sporadic incidents to

support her claim of hostile work environment harassment”). We find that plaintiff

has simply not come forward with enough specific evidence to demonstrate that the

conditions of his workplace were so unbearable as to effect the terms and

conditions of his employment. See, e.g., King v. City of Philadelphia, 66

Fed.Appx. 300, 302, 305 (3d Cir. Apr. 1, 2003) (finding events “isolated and

sporadic” where plaintiff alleges that he was called “nigger,” physically pushed, and

threatened with having his work sabotaged); Singletary v. Missouri Dep’t of

Corrections, – F.3d – , 2005 WL 2218039, at *5 (8th Cir. Sept. 14, 2005) (“Racial

epithets are morally repulsive. But our cases require that a plaintiff show more than

a few occurrences over a course of years. To be actionable, such conduct must be

shown to occur with such frequency that the very conditions of employment are

altered and be viewed by a reasonable person as hostile.”); see also Money v.

Provident Mut. Life Ins. Co., 2005 WL 1417095, at *6 (E.D. Pa. June 15, 2005)

(gathering cases where derogatory comments were found not to be pervasive or

regular). Plaintiff has provided scant evidence of racial insensitivity and harassment

and we do not believe it would have adversely altered the working conditions of a

reasonable employee. We cannot find that reasonable jurors would disagree.

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Furthermore, to establish that conduct was sufficiently severe or pervasive

the plaintiff must subjectively perceive the environment to be hostile or abusive. 

Konstantopoulos, 112 F.3d at 715 (3d Cir. 1997) (citing Harris, 510 U.S. at 21). 

Wilson, by his own testimony, has indicated that he found the name calling only

“little things” and did not bring those incidents to the immediate attention of his

supervisor. (Rec. Doc. No. 11, Ex., at 44.) And those issues that Wilson did

bring to the attention of his supervisor, those matters he considered “of real

importance,” were resolved to his satisfaction. There is no basis in the record for a

reasonable jury to find that Wilson perceived the harassment to be so severe or

pervasive to alter his working conditions when he characterized the harassment as

“little things” that were not of “real importance” in his deposition testimony. 

For all of the above reasons, defendant is entitled to a judgment in its favor

on its motion for summary judgment.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RODNEY ALAN WILSON, :

:

Plaintiff, : No. 4:04-CV-2784

:

v. : (Judge McClure)

:

PRIMUS TECHNOLOGIES, :

INC., :

:

Defendant. :

O R D E R

October 12, 2005

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Plaintiff’s motion for summary judgment is granted. (Rec. Doc. No.

10.)

2. Final judgment is entered in favor of defendant Primus Technologies

Inc. and against plaintiff Rodney Alan Wilson.

3. The Clerk is directed to close the case file.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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