2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-23-2010

Heilia Fairclough v. Wawa Inc

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3497

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ALD-069 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3497

___________

HEILIA V. FAIRCLOUGH,

Appellant

v.

WAWA, INC.

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 09-02153)

District Judge: Honorable Mary L. Cooper

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

December 16, 2010

Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges

(Filed: December 23, 2010 )

_________

OPINION OF THE COURT

_________

PER CURIAM

Heilia Fairclough appeals pro se from the District Court’s order granting summary 

judgment to Wawa, Inc. (“Wawa”) on her claims of employment discrimination, and 

denying her motion for summary judgment. For the following reasons, we will 

summarily affirm.

.
2

I.

Fairclough, a sixty-plus year old, black woman of Jamaican nationality, was 

employed as a part-time customer service associate with Wawa beginning in April 2006. 

The gist of her complaint is that she was discriminated against when the management 

staff and employees at the store where she worked did not treat her courteously, 

sabotaged her so that she would get written up for violating Wawa policy, and conspired 

against her to have her terminated. 

On August 13, 2008, Christine Paustian, a store manager, reported Fairclough to 

the store’s safety manager for failing to properly store knives. Fairclough was given a 

disciplinary notice for the safety violation. In response to the violation, Fairclough wrote 

several memos to Wawa management in which she contended that “the knives were 

turned over by [Paustian] to create problems for me,” even though Fairclough “[could 

not] say [so] with any degree of certainty, . . . because [she] did not see [Paustian] do the 

act.” (Pl.’s Ex. 21 at 17 & 22.) Fairclough also claimed that Paustian had assaulted her 

during the incident by waving her hand in front of Fairclough’s face. Ray Crespo, the 

store’s general manager, and Dwight Newell, the general manager in training, met with 

Fairclough in response to the incident and reviewed various safety procedures and 

policies with her.

Over the course of the next month, Fairclough was written up on two additional 

occasions for violating Wawa policies, once for failing to wear gloves when handling 

food and once for failing to bring in a doctor’s note when she called out sick. Although 
3

she acknowledged engaging in the conduct underlying those write-ups, she wrote memos 

to management explaining why, in her opinion, the discipline was not warranted. During 

the same time period, she experienced additional conflicts with co-workers, especially 

Paustian, whom she accused of standing too close to her on one occasion, in an alleged 

attempt to get Fairclough to drop the macaroni and cheese she was handling at the time. 

Fairclough was written up again on September 29, 2008, for failing to log the 

temperature of the store’s refrigerated sandwich station in accordance with her duties. 

Although she acknowledged that she failed to log the temperature, she wrote another 

memo to management arguing that Paustian tampered with the temperature on the unit so 

that the food would spoil and Fairclough would be blamed for it. She claimed that 

Paustian was harassing her and accused Crespo and Newell of joining in the harassment 

by writing her up and ignoring her claims of sabotage. Crespo determined that 

Fairclough’s allegations against Paustian were unsubstantiated and wrote her up for 

falsely accusing a co-worker and creating a hostile work environment. During a 

discussion with Crespo about the incident, Fairclough called him “illiterate” because she 

felt that he was not reading her memo thoroughly. 

In light of the situation, Fairclough initiated Wawa’s conflict resolution process. 

Virginia Lemons, a human relations specialist, interviewed Fairclough and several other 

employees. The employees indicated that it was Fairclough who was responsible for 

creating a difficult work environment by, among other things, claiming discrimination 

whenever she was asked to do a task consistent with her job duties. Lemons concluded 
4

that Fairclough was incapable of getting along with her co-workers and that she had been 

insubordinate to management staff. She also found that Fairclough failed to follow 

policies concerning safety and food spoilage. 

Based on Lemons’s findings, Crespo terminated Fairclough, who was sixty-one 

years old at the time, on October 29, 2008. Prior to her termination, Fairclough had been 

participating in Wawa’s Employees’ Savings (401K) and Profit Sharing Plan. If 

Fairclough had remained employed with Wawa until age sixty-two, she would have 

become vested in the plan and would have received $24.23 in contributions from Wawa. 

Fairclough appealed her termination within Wawa’s conflict resolution program, but the 

decision to terminate was upheld.

After exhausting her administrative remedies, Fairclough filed a pro se complaint 

against Wawa, asserting a hostile work environment claim under Title VII, a claim of 

wrongful termination in violation of the Age Discrimination in Employment Act 

(“ADEA”), and a claim under the Equal Pay Act. She predominately asserted that she 

was mistreated due to Wawa’s failure to provide a “bias free environment,” and alleged

that her termination was motivated by discrimination. 

The parties cross-moved for summary judgment. The District Court granted 

summary judgment in favor of Wawa and denied Fairclough’s motion. The gist of its 

opinion was that Fairclough had failed to produce any evidence that the conditions of 

which she complained or her termination were motivated by discrimination due to her 
5

race, nationality, age, or Wawa’s desire to avoid contributing to her retirement.

1

 

Fairclough subsequently moved for relief from the District Court’s judgment, pursuant to 

Federal Rule of Civil Procedure 60(b)(1). The District Court denied that motion, and

Fairclough timely appealed.

II.

The District Court possessed jurisdiction pursuant to 28 U.S.C. § 1331. Our 

jurisdiction arises under 28 U.S.C. § 1291. Before we can proceed with the merits of 

Fairclough’s appeal, we must first rule on her motion to proceed in forma pauperis. “[I]n 

order for a court to grant in forma pauperis status, the litigant seeking such status must 

establish that [she] is unable to pay the costs of [her] suit.” Walker v. People Express 

Airlines, Inc., 886 F.2d 598, 601 (1989). Fairclough’s affidavit of poverty reflects that 

her income barely covers her expenses and that her savings, if any, are minimal. 

Accordingly, she has established an inability to pay the applicable fee and we will grant 

her motion. See Adkins v. E.I. DuPont de Nemours & Co.

Having concluded that Fairclough may proceed in forma pauperis, we turn to 

whether summary affirmance is appropriate.

, 335 U.S. 331, 339 (1948) 

(one need not be “absolutely destitute” to proceed in forma pauperis).

III.

2

 1 In her summary judgment motion, Fairclough alleged that Wawa defamed her in 

addition to discriminating against her. Fairclough was not entitled to relief on that claim 

because she did not adequately plead a defamation claim nor did she move to amend her 

complaint to add one.

“This court reviews the District Court’s 

2 In making that assessment, we will consider Fairclough’s pro se brief, which we take to 
6

decision resolving cross-motions for summary judgment de novo.” Startzell v. City of 

Phila., 533 F.3d 183, 192 (3d Cir. 2008). Summary judgment is appropriate “if the 

pleadings, the discovery and disclosure materials on file, and any affidavits show that 

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

judgment as a matter of law.”3

 Fed. R. Civ. P. 56(c)(2). We must “view all evidence and 

draw all inferences in the light most favorable to the non-moving party . . . .” Startzell, 

533 F.3d at 192. Since we conclude that no substantial question is raised by Fairclough’s 

appeal, we will summarily affirm. See 3d Cir. LAR 27.4; 3d Cir. IOP 10.6. 

A.

The District Court properly granted summary judgment on Fairclough’s Equal Pay 

Act claim. The Equal Pay Act prohibits employers from discriminating based on sex “by 

paying wages to employees . . . at a rate less than the rate at which he pays wages to 

employees of the opposite sex . . . for equal work on jobs the performance of which 

requires equal skill, effort, and responsibility, and which are performed under similar 

working conditions . . . .” 29 U.S.C. § 206(d)(1). Since Fairclough’s Equal Pay Act

claim is premised on her assertion that she was paid less than an employee of the same 

sex, not of a different sex, and since the record is devoid of any evidence that Wawa paid 

individuals of different sexes unequally, her claim necessarily fails. 

Equal Pay Act

See Shultz v. 

Wheaton Glass Co.

 

be her response to the Clerk’s order inviting her to submit argument in support of her 

appeal. Accordingly, we instruct the Clerk to file her informal brief.

, 421 F.2d 259, 264 (3d Cir. 1970) (describing Equal Pay Act as “the 

3 The text of Rule 56 changed as of December 1, 2010; however, we will apply the 
7

culmination of many years of striving to eliminate discrimination in pay because of sex”) 

(emphasis added).

B. Hostile Work Environment

The District Court also properly granted summary judgment to Wawa on 

Fairclough’s hostile work environment claim. In order to establish that she was subjected 

to a hostile work environment in violation of Title VII, Fairclough must establish that 

“(1) [she] suffered intentional discrimination because of . . . her membership in the 

protected class; (2) the discrimination was pervasive and regular; (3) the discrimination 

detrimentally affected [her]; (4) the discrimination would have detrimentally affected a 

reasonable person of the same protected class in that position; and, (5) the existence of 

respondeat superior liability.” West v. Phila. Elec. Co.

It is clear that Fairclough did not get along with Wawa’s management staff, 

Paustian in particular. However, Lemons’s interviews revealed that Fairclough was the 

employee causing discord in the workplace. Fairclough contends that those reports are 

false, largely based upon her belief that everyone was conspiring against her. She also 

asserts that the investigation was “biased” because, in her opinion, Lemons failed to ask 

sufficient questions of the interviewees. Even leaving aside the fact that Fairclough’s 

allegations of sabotage are unsubstantiated and accepting her version of the underlying 

events, there is nothing in the record from which a reasonable juror could infer that the 

, 45 F.3d 744, 753 (3d Cir. 1995).

 

version of the rule in effect at the time the parties moved for summary judgment.
8

way Fairclough was treated at work had anything to do with her race or nationality.

4

 

That Fairclough experienced personality conflicts resulting in a less than ideal work 

environment is simply not actionable under Title VII. See Burlington N. & Santa Fe Ry. 

Co. v. White, 548 U.S. 53, 68 (2006) (explaining that Title VII is not a civility code for 

the workplace); see also West, 45 F.3d at 753 (Title VII is violated by “a work 

environment abusive to employees because of their race, gender, religion, or national 

origin”) (quotations omitted and emphasis added). 

Furthermore, other than the incident with the knives, which she believes to be a 

product of sabotage, Fairclough admits to engaging in the conduct for which she was 

written up even though, in her opinion, the discipline was unwarranted. She likewise 

acknowledges calling Crespo “illiterate.” The record therefore reflects that Fairclough 

was disciplined and terminated for exactly the reasons proffered by Wawa and not due to 

any racially motivated mistreatment. The District Court thus correctly concluded that 

summary judgment was warranted on Fairclough’s Title VII claim. See Hedberg v. Ind. 

Bell Tel. Co.

 4 That conclusion is bolstered by Fairclough’s own deposition testimony. When asked 

about her claims, Fairclough stated: 

“I just know I was treated very badly. I don’t know if there’s another name 

for it. I’m very welcome to accept that, but you have to choose something 

so the word I chose was discrimination. . . . [T]here is no other label for 

that when people treat you badly.”

(Pl.’s Dep. at 21:2-8.)

, 47 F.3d 928, 932 (7th Cir. 1995) (“Speculation does not create a genuine

issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of 

summary judgment.”). 
9

C. ADEA Claim

Summary judgment was also warranted on Fairclough’s ADEA claim, which is 

governed by the burden-shifting framework set forth in McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973). Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 

2009). “When the plaintiff alleges unlawful discharge based on age, the prima facie case 

requires proof that (i) the plaintiff was a member of the protected class, i.e., was 40 years 

of age or older, (ii) that the plaintiff was discharged, (iii) that the plaintiff was qualified 

for the job, and (iv) that the plaintiff was replaced by a sufficiently younger person to 

create an inference of age discrimination.” Keller v. Orix Credit Alliance, Inc., 130 F.3d 

1101, 1108 (3d Cir. 1997) (en banc) (citations omitted). Once a plaintiff makes out a 

prima facie case, the burden 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. If the defendant satisfies that burden, the plaintiff can only 

overcome summary judgment with evidence “that the employer’s proffered rationale was 

a pretext for age discrimination.” Smith

Assuming, arguendo, that Fairclough has established a prima facie case based on 

her testimony that she was replaced by a younger individual, her ADEA claim fails 

because she lacks any evidence of pretext. Wawa articulated legitimate 

nondiscriminatory reasons for terminating Fairclough that are supported by the record, 

namely, she could not get along with other employees, created an uncomfortable working 

environment, and was insubordinate to management. There is simply no evidence from 

, 589 F.3d at 690.
10

which a jury could infer that Wawa’s decision to terminate Fairclough was motivated by 

her age or her participation in Wawa’s retirement plan. Indeed, when asked at her 

deposition why she believes she was subjected to age discrimination, Fairclough 

responded: “Well, the economy was very bad. And people were getting rid of older 

people. You know, I don’t know. And I have to assume that’s part of it . . . .” (Pl.’s Dep. 

at 33:9-11.) Fairclough’s speculation is an insufficient substitute for evidence from 

which a reasonable juror could infer discriminatory intent. Summary judgment was 

therefore warranted on her ADEA claim.

In sum, Fairclough’s appeal presents no substantial question. Accordingly, we 

will summarily affirm.5

 5 Fairclough also appeals the District Court’s denial of a motion for default judgment, 

which she filed before Wawa responded to her complaint, and her Rule 60(b)(1) motion 

for relief from judgment, in which she sought relief from the District Court’s summary 

judgment ruling because she “inadvertently” omitted certain documents from her filings 

that allegedly would have supported her claim. We conclude that the District Court did 

not abuse its discretion in denying either of those motions, since its reasons for doing so 

were sound. Further, we note that Fairclough would not have been entitled to entry of 

default, let alone default judgment, because Wawa timely returned a waiver of service to 

Fairclough and thereafter timely answered the complaint. See Fed. R. Civ. P. 4(d)(1) & 

(3).