PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 20

- 2747

_____________

JOSEPH CANADA

, Appellant

v.

SAMUEL GROSSI & SONS, INC.

________________

On Appeal from t he District Court for the Eastern District of Pennsylvania (D.C. No. 2

- 19

- cv

- 01790) District Judge: Hon. Jan E. DuBois

________________

Argued on May 27, 2021

Before: McKEE, RESTREPO, and FUENTES, Circuit

Judges

(Opinion filed : Septembe r 1 5 , 2022 )

Timothy S. Seiler ( Argued ) Karpf Karpf & Cerutti

3331 Street Road Suite 128, Two Greenwood Square Bensalem, PA 19020

Counsel for Appellant2 Brad M. Kushner ( Argued )

Stevens & Lee

1500 Market Street Centre Square
East Tower, Suite 1800 Philadelphia, PA 19102

Counsel for Appellee

________________

OPINION OF THE COURT

________________

McKEE

, Circuit Judge

Joseph Canada appeals the District Court’s dismissal of

his retaliation claims against Samuel Grossi and Sons, Inc. (“Grossi”)

, his former employer. T he claims were brought under Title VII of the 1964 Civil Rights Act

, 42 U.S.C. § 1981,

the Americans with Disabilities Act (“ADA”) , and the Family

Medical Leave Act (“FMLA”)

. A lthough Grossi argued that it

fired Canada for misconduct that was discovered during a search of his cellphone, Canada clai m s Grossi’s true motive for firing him was retaliation for act ions that were protected under

the aforementioned statutes

. F or the reasons that follow , we will reverse the District Court ’s grant of summary judgment to
Grossi on Canada’s retaliation claim s arising from his final

termination and remand for further proceedings consistent with this opinion.

I.

Canada , a Black man, worked for Grossi, a steel producer, for 10 years. 1 C anada suffered from “serious back

1 We review a grant of summary judgment de novo

. Scheidemantle v. Slippery Rock Univ. State Sys. of Higher

Educ. , 470 F.3d 535, 538 (3d Cir. 2006). Here, t he Dist rict Court granted Grossi’s motion for summary judgment.
Canada v. Samuel Grossi & Sons, Inc. , 476 F. Supp. 3d 42, 56 (E.D. Pa. 2020) (“Dist. Ct. Op. ”). Therefore, we present the facts in the light most favorable to Canada.3 problems

, ” including herniated discs and arthritis. 2 These back problems formed the basis of the disability discrimination

claims outlined in his original complaint. Canada claim s that throughout his tenure, Grossi management prevented him from accessing forms pertaining to the FMLA and harassed him

when he tried to use FMLA leave for his back probl ems

. 3

Canada eventually obtained FMLA forms on his own. Thereafter, he would notify Grossi management that he was claiming FMLA leave during his absences from work. Elena Osorio, Grossi’s d irector of h uman r esources, testified that she never approved F MLA leave for Canada, but that Canada

“took FMLA how he wanted,” 4 and she “let [ Canada ] take his

FMLA” leave

, and did not assess any attendance points against

him for doing so

. 5

Occasionally , when demand for Grossi’s products was low, Grossi order ed temporary layoffs. The layoffs, governed by a C ollective Bargaining Agreement (“CBA”) between

Grossi and a labor union

, occur red in order and in preference of seniority. 6 On one such occasion, Canada was laid off, but only for a day

. 7 H e promptly returned to work with the same pay and benefits he enjoyed prior to his layoff. 8

2 JA 5

. 3 See 29 U.S.C. § 2601 et seq

. 4 JA 289.

5 JA 290.

6 Canada was a member of the Shopmen’s Local Union No. 502 of the International Association of Bridge, Structural, Ornamental and Reinforcing Iron.

7 We need not consider the merits of this first layoff becau se the retaliation claim s were brought only in connection to the

second termination. We note, however, on its face, this one

day layoff is consistent with the workforce reduction policy

under the CBA.

8 T he CBA allows more senior employees in one unit to “bump” less senior employees in other units, rather than be

laid off themselves as long as the more senior employee is “immediately able to perform the work.” JA 8. In March 2018, Grossi temporarily laid off tw enty

- three employees, including Canada. Canada attempted to avoid the layoff by “bumping” a less senior worker in the paint shop, but Grossi

refused to allow him to bump due to a doctor’s note that he4 In March 2019, the same month as Canada’s one

- day layoff, Canada “ filed a charge

. . . with the EEOC . . . outlining

the discrimination and retaliation he [claime d he] had been experiencing.” 9 A month later, in April, “[d]ue to the [alleged] continued discriminatory and retaliatory treatment from . . . management,” Canada filed the first complaint in the District

Court , alleging race discrimination, retaliation, and a hostile work environment under Title VII, § 1981, the ADA, and the

FMLA. 10 After filing his lawsuit against Grossi, John Grossi,

offered months before. The note explained that he mus t be excused from working with paint due to his health. Upon submitting the note, Canada was transferred out of the paint shop to work as a m achine o perator.

Right before the scheduled layoff, Canada presented

Grossi with a nother note from a different doctor that stated in its entirety: “Joseph Canada may work around paint.” JA 9

. Canada testified that he procured this letter to shield against the impending layoff

. Grossi, however, did not accept the

note because “ it [ didn ’ t ] say anything about [ Canada’s ] previous issue” and “the doctor that wrote [the second note

did n’t ] have the medical history to approve ” his transfer back to the paint department. JA 9 (second alteration added)

. 9 Appellant Br. at 16; see also JA 67. Cana da alleges that he

was subject to discrimination and a hostile work environment

at Grossi based on his being a Black man

. In a deposition, Canada testified that between March 2018 and July 2019,

various co

- workers and superiors used the word “ n igger” in

the workplace

. JA 115. He testified that his co

- worker called

him n igger twice

. JA 115 (explaining that in March 2018

, his

co

- worker called him a “fucking nigger” after he accidently

knocked over the co

- worker’s radio, and then in February

201 9, he called him it a second time). In fact, when Canada complained to Osorio about this co

- worker , Osorio expressed that she saw no issue. Specifically, Canada testified that she

told him that she and her sister “dated black guys and [have] said, ‘nigge r’ before.” JA 115

. 10 JA 68; see also JA 41

- 60 (first civil action complaint). Ultimately, Canada filed his Second Amended Civil Action Complaint in November 2019. H e alleged race discrimination, retaliation, and hostile work environment

under both Title VII of the Civil Rights Act of 1964, 425 one of the company’s owners, approached him and threatened

that if h e did not drop th e lawsuit

, “ I’ll [ ] just have other

African

- American employees say the opposite of what you’re saying.” 11 Canada was terminated a month later, in July 2019

.

Grossi based the termination on text messages that

management found on Canada’s cellphone. The incident that led to the discovery of these text messages is at the heart of this appeal

. Canada testified that he used a locker on the shop floor at Grossi to store his personal items

, including his tools, clothes, and cellphone , and tha t he secured the locker with his personal lock, not a work

- issued lock

. According to Canada, “every operator ,” such as himself, “ had their own locker

, ”

either in the locker room or shop floor, for personal storage

. 12

This was a mutually

- respected arrange ment, Canada said,

among the employees and the company, and that his locker was no exception. 13 Moreover, Canada explained that b ecause Grossi did not supply tools to its employees, they were required to bring their own. “That’s why,” Canada emphasized , it was necessary that operators “got their own lockers” for safekeeping of their belongings

. 14 Grossi , on the other hand, alleges that personal lockers were located elsewhere

, and that Canada was using a locker on the shop floor which was designated as a company tool locker.

W hile Canada was on vacation in July , Grossi cut the padlock off of his locker and searched it. G rossi claimed that

the lockers on the shop floor needed to be moved that day

U.S.C. § 2000 (d) et seq. (Count I) and 42 U.S.C. § 1981 (Count II); actual and perceived disability discrimination, retaliation, hostile work environment, and failure to

accommodate under the ADA

, 42 U.S.C. § 12101 et seq. (Count III); retaliation and unlawful interference under the

FMLA

, 29 U.S.C. § 2601 et seq. (Count IV); unlawful access

to stored communications under Pennsylvania’s Wiretapping

and Electronic Surveillance Control Act

, 18 Pa. Cons. Stat. §

5741 et seq. (Count V); and invasion of privacy under state

common law (Count VI).

11 JA 153.

12 JA 142.

13 JA 142

- 43.

14 JA 143.6 because they were blocking a surveillance camera. Despite using a forklift to move the lockers

, Grossi alleged that all of the contents of the lockers had to be emptied before moving

them

. Because Canada was not at work, a Grossi employee cut

t he lock on his locker and removed its contents, including Canada’s personal items and his cellphone. Osorio saw the cellphone and testified that she believed that the phone may have been a company phone “[b]ecause it’s a Samsung” and

Grossi had issued oth er employees Samsung cellphones. 15 According to Osorio , she guess ed the phone’s password on her

first try. L ater that day, she searched the phone to “find out if it was a company phone.” 16

In her review of the text messages, Osorio found messages from more than a year earlier in which Canada appeared to have solicited se x from prostitutes

. In comparing

the time records of his text messages to his work hours

, Osorio

and John Grossi “ determi ned [in their opinion] that he had been soliciting prostitutes while at work and clocked in.” 17

C oncluding that solicit ation of prostitutes during company

time violat ed Grossi’s Employee Conduct and Disciplinary Action Policy

, Grossi immediately fired Canada

. Th at policy

forbids “[u]nlawful conduct which adversely affects the employee’s relationship on his/her job, fellow employees, supervisor and/or damages the Company’s proper ty, reputation or goodwill in the community” and “[i]mmoral or indecent

conduct.” 18

Canada , however, claimed that he was not soliciting prostitutes, never met with any of the women , and the texting

was simply “dumb entertainment.” 19 After being terminated,

Canada amended his previously filed complaint to allege that

his termination was retaliation for h is complaints of race and disability discrimination.

The District Court granted summary judgment to Grossi

on all of Canada’s claims. I n addressing Canada’s

15 JA 303

. 16 JA 303

. 17 JA 12 [alteration in original]

. 18 JA 12; 648

- 649

. 19 JA 12; 1 47

- 48

.7 discrimination claims, it stated: Canada “ argues that defendant’s reason for terminating his employment was pretextual because defendant’s explanation for entering the

locker is “ ‘ unbelievable ’ and that Osorio’s reason for going through the phone ‘to find out if it was a company phone’ is

also ‘un believable.’” 20 The District C ourt concluded, “[h]owever, [that] these arguments relate to the propriety of the search of plaintiff’s cellphone, not whether defendant terminated plaintiff’s employment for appearing to solicit prostitutes while clocked in and on company property.” 21 The

District Court found that “[n]o reasonable jury could conclude that defendant’s proffered nondiscriminatory and nonretaliatory reason for terminating plaintiff’s employment was pretextual.” 22 This appeal followed. 23

II.

Although Canada makes several arguments on appeal

, they all focus on his contention that the stated grounds for his termination were pretext for illegal retaliation for his complaints of race and disability discrimination. Accordingly, we need only address whether the District Court erred in granting Grossi summary judgment on Canada’s claim that Grossi’s professed justification for terminati ng him was pretext for a retaliatory motive

.

“ We review the grant or denial of summary judgment

de novo .” 24 Our focus is the same as the District Court : We

20 Dist. Ct. Op. at 56 ; JA 18.

21 Id

. 22 Id

. The court also concluded that the search was not improper and that it did not violate Pennsylvania privacy

laws

. Id . at 63

- 65. This appeal does not address the District

Court ’s denial of the claims Canada brought under Pennsylvania state privacy laws because he did not appeal

them

. 23 The District Court had jurisdiction under 28 U.S.C. §1331

because the claim arose under federal law. We have jurisdiction over appeals from all final decisions of the d istrict

c ourt s under 28 U.S.C. § 1291.

24 Cranbury Brick Yard, LLC v. United States , 943 F.3d 701, 708 (3d Cir. 2019)

.8 may only affirm a grant of summary judgment if “there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 25 We “view the facts in the light most favor able to the non

- moving party and [draw] all reasonable inferences in that party’s favor.” 26 “ A

factual dispute is material if it might affect the outcome of the suit under the governing law.” 27 A dispute regarding a material fact is genuine only if the e vidence at issue could permit a reasonable jury to decide in favor of the nonmoving party. 28

We only address Canada ’s appeal of the District Court’s grant of Grossi’s motion for summary judgment as to the retaliation claims under Title VII, § 1981, the A DA, and the

FMLA. In granting the motion as to these claims, the District

Court found that Canada failed to show that Grossi’s “nonretaliatory reason [for firing him] was pretextual

. ” 29 After reviewing the evidence, we conclude that the District Court erred in finding that a reasonable jury could not find Grossi’s reason pretextual. We thus reverse as to the four retaliation

claims and remand for further proceedings

.

1. McDonnell Douglas Framework

25 Razak v. Uber Techs., Inc ., 951 F.3d 137, 144 (3d Cir.)

, amended

, 979 F.3d 192 (3d Cir. 2020)

. 26 Scheidemantle , 470 F.3d at 538

. 27 Razak , 951 F.3d at 144 (internal quotations omitted)

28 Halpern v. F.B.I. , 181 F.3d 279, 287 (2d Cir. 1999)

. 29 Dist. Ct. Op. at 54

- 55; JA 1 6

.9 Retaliation claims are cognizable under Title VII, 30 § 1981, 31 the ADA, 32 and the FMLA

. 33 In McDonnell Douglas Corp. v. Green

, 34 the Supreme Court established the analytical

framework that govern claims of allegations of retaliation for engaging in protected activity under Title VII. Th erefo re, Cana da ’s r etaliation claims , which rely on circumstantial evidence, are controlled by the three

- step burden

- shifting

framework established in McDonnell Douglas

. 35 We have also applied this framework to other retaliation claims including

those in the ADA, and the FMLA. 36

Unde r the first step o f that framework, a plaintiff “ must establish a prima facie case by showing ‘ (1) [ that she engaged in] protected employee activity; (2) adverse action by the

30 42 U.S.C. § 2000e

– 3(a) (“ It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted , or participated in any manner in an investigation, proceeding, or hearing under this subchapter. ”).

31 CBOCS West, Inc. v. Humphries , 553 U.S. 442, 457 (2008) (holding that § 1981 “encompasses claims of retaliation”).

32 42 U.S.C.A. § 12203(a) (“No perso n shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.”).

33 29 C.F.R. § 825.220 (c) (describing the FMLA’s prohibition against “retaliating against an employee . . . for having exercised or attempted to exercise FMLA rights

. ”).

34 411 U.S. 792 (1973)

. 35 Moore v. City of Phila del phia , 461 F.3d 331, 342 (3d Cir.2006)

. 36 Stewart v. Rutgers, The State Univ ., 120 F.3d 426, 432 (3d Cir. 1997) (applying McDonnell Douglas to § 1981 claim); Shellenberger v. Summit Bancorp, Inc. , 318 F.3d 183, 187 (3d Cir. 2003) (applying McDonnell Douglas to ADA retaliation claim); Lichtenstein v. Univ. of Pittsburgh Med. Ctr. , 691 F.3d 294, 302 (3d Cir. 2012) (applying McDonnell Douglas to FMLA retaliation claim).10 employer either after or contemporaneous with the employee’s protected activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse

action. ’ ” 37 Upon making these showings, the employer t hen, under step two, has the burden of producing evidence that “present [s] a legitimate, non

- retaliatory reason fo r having

taken the adverse action.” 38 If the employer meets this burden,

the burden then shifts “ back to the plaintiff to demonstrate that

‘ the employer’s proffered explanation was false, and that retaliation was the real reason for the adverse employment

action. ’ ” 39

Here, the District Court granted summary judgment to
Grossi because it held that Canada failed to successfully rebut Grossi’s proffered reason for search ing his cellphone. I n the rebuttal, Canada attacked Grossi’s motivation for the search

, arguing that its explanation for engaging in the search was

unbelievable. T he District Court rejected this argument explaining that it “relate [s] to the propriety of the search of [Canada’s] cellphone, not whether [Grossi] term inated [Canada’s] employment for appearing to solicit prostitutes while clocked in and on company property.” 40 The District

Court therefore reasoned that the motivation behind the search

and Grossi’s explanation for engaging in the search had no bearing on the pretext analysis. We disagree.

2. An employer’s motivation for investigating an employee can be relevant to pretext.

To defeat summary judgment at the third McDonnell Douglas step, the “plaintiff must point to some evidence, direct or 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

37 Daniels v. Sch

. Dist. of Phila

. , 776 F.3d 181 , 193 (3d Cir. 2015) (alteration in original) ( quoting Marra v. Phila. Hous.

Auth. , 497 F.3d 286, 300 (3d Cir. 2007) ).

38 Daniels , 776 F.3d at 193.

39 Id. (quoting Moore , 461 F.3d at 342 ).

40 Dist. Ct. Op. at 56; JA 18

.11 of the employer’s action.” 41 An employee may meet her burden by “painting the [employer’s articulated reasons] as weak, implausible, contradictory, or incoherent.” 42 Or, for example, “ by showing that the employer in the past had subjected [the employee] to unlawful discriminatory treatment, [or] that the employer treated other, similarly situated persons

not of h is protected class more favorably.” 43

At the summary judgment stage, “ [w] e consider ‘a broad array of evidence

, ’ ” including “ antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse

a ction. ” 44 If the plaintiff makes this showing, summary judgment is improper because the plaintiff has raised “a factual issue regarding the employer ’ s true motivation for discharge.” 45

41 Fuentes v. Perskie , 32 F.3d 759, 764 (3d Cir. 1994)

. 42 Id . at 765

. 43 Id

. 44 Daniels , 776 F.3d at 196 (quoting LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n , 503 F.3d 217, 232 (3d Cir. 2007))

. Although these statements in Daniels were made with respect

to the prima facie case of discrimination, we have maintained that “evidence supporting the prima facie case is often helpful in the pretext stage and nothing about the McDonnell Douglas formula requires us to ration the evidence between one stage or the other.” Farrell v. Planters Lifesavers Co.

, 206 F.3d 271, 286 (3d Cir. 2000). See also Jalil v. Avdel Corp. , 873 F.2d 701, 709 n.6 (3d Cir. 1989) (“Although this fact is important in establishing plaintiff ’ s prima facie case, there is nothing preventing it from also being used to rebut the defendant’s proffered explanation. As we have observed before, the McDonnell Douglas formula does not compartmentalize the evidence so as to limit its use to only one phase of the case.”). Accordingly , our statement that we can consider “any other evidence” suggesting the employer acted out of retaliatory animus applies equally to the

Canada’s demonstration of pretext.

45 Jalil , 873 F.2d at 707.12 W e look at the totality of the circumstances to determine

whether an employer’s proffered nondiscriminatory reason is pretext for a discriminatory motive. W e explained the necessity for this in Aman v. Cort Furniture Rental Corp. 46
There, we described how “[d]efendants of even minimal sophistication will neither admit discriminatory animus or [sic] leave a paper trail demonstrating it.” 47 This is no less true for employers who retaliate against employees who have filed complaints of discrimination or accused an employer of racial

bias. I ndeed, a contrary rule would not only immunize employers who retaliate against employees only after they stumble upon something that would justify their termination ; it

would also incentivize such retaliatory forays.

Although the point could certainly have been pled with greater clarity, Canada alleged “ that he was subjected to pretextual discipline

. . . and terminated a second time

. . . in retaliation for his complaints of race discrimination ” 48 and

“ disability discrimination/retaliation. ” 49 His complaint sets

forth a factual basis for th e allegation.

Canada relies in part upon Hobgood v. Illinois Gaming

Board 50 in arguing t he search of his cellphone was undertaken only in the hope that it would disclose something that would justify terminat ing him in retaliation for filing complaints alleging illegal discrimination

. I n Hobgood

, the Court of Appeals for the Seventh Circuit concluded that an employer’s motive in investigating an employee was relevant to establishing pretext under Title VII. 51 Hobgood worked for the Illinois Gaming Board and assisted a colleague in filing a discrimination charge against the Bo ard. 52 Once the Board determined that Hobgood was aiding the fellow employee, it launched a series of investigations into Hobgood’s behavior. 53

46 85 F.3d 1074 (3d Cir. 1996).

47 Id . at 1082 (alteration i n original) (quoting Riordan v

. Kempiners , 831 F.2d 690, 697 (7th Cir. 1987)).

48 JA 89.

49 JA 96.

50 731 F.3d 635 (7th Cir. 2013).

51 See i d. at 637.

52 Id . at 637, 641

. 53 Id. at 6 38

– 39

.13 Although many of the initial charges the Board subsequently brought against Hobgood were not substantiated, t h e investigation uncover ed evidence that Hobgood had violated a Board polic y

. 54 Based upon that violation, the Board terminated Hobgood

. 55 The d istrict c ourt granted summary judgment in favor of the Board in Hobgood’s subsequent suit

under Title VII. 56 At t he third step of McDonnell Douglas

, t he court rejected Hobgood’s claim that he was fired in retaliation for assisting his colleague. 57 T he court concluded that Hobgood was not fired because of his protected activity , but

because of the infraction uncovered by the Board’s investigation

. 58

The Court of Appeals for the Seventh Circuit reversed. 59

D espite the fact that the Board relied on Hobgood’s violation

of policy, the c ourt held that “ [t]he initi a tion and scope of [the] investigation

. . . support [ ed ] an inference that the investigation was not prompted by the defendants’ belief that Hobgood had [violated Board policy]

, but was instead prompted by the defendants’ desire to construct a case for Hobgood’s termination after they discovered that he had been helping [his friend] with his lawsuit” against the Board

. 60 The court

reasoned that Hobgood had presented a “‘convinci ng mosaic’ of circumstantial evidence,” which “ when taken as a whole and viewed in a light favorable to Hobgood ’s case , could convince a reasonable jury that he was the victim of unlawful

retaliation.” 61 We believe the same analysis is pertinent here

and would allow a jury to conclude that Grossi’s stated reason for firing Canada was a pretext intended to thwart any suggestion of illegal retaliation. The evidence here clearly supports a conclusion that Grossi was looking for something

54 Id. at 640.

55 Id

. at 641.

56 Id.

57 Id. at 637.

58 Id

. ( “The court reasoned that the Gaming Board fired Hobgood not because he had assisted Gnutek but because the ‘nature’ of that assistance consisted of providing confidential

information.” I

d. at 6 41 ).

59 Id

. 60 Id. at 646

. 61 Id . at 643 (citations omitted).14 that would justify terminating Canada and that it undertook that

search because of Canada’s complaints of discrimination.

Grossi attempts to distinguish Hobgood by focusing on

several differences between that case and the circums tances here, including the fact that “[t]he investigator [there]

conducted a far

- reaching investigation into all aspects of the plaintiff’s work practices.” 62 Although we agree that there are

distinctions between the circumstances in Hobgood and the

circu mstances before us, we believe they are distinctions

without a difference. M oreover, we will not adopt a rule that

would countenance limited retaliatory searches and only subject an employer to Title VII liability for more sweeping

incursions

. For the reasons we have already explained, we reject a rule that incentivize s employers to dig up reasons to fire an employee who has engaged i n protected activity, and

then immunize s them from suit based upon a subsequent fortuitous discovery of grounds for termination.

Here

, as in Ho b good

, there is a “‘convincing mosaic’ of circumstantial evidence,” 63 which

, when taken as a whole and viewed in a light favorable to Canada ’s case , could convince a reasonable jury that he was the victim of unlawful retaliation. 64 In other words, the evidence could support a finding that the search itself was retaliatory.

3. T here are genuine issues of fact precluding summary judgment on C anada’s claim of

retaliation

.

As explained above, for Canada to survive summary judgment at the third McDonnell Douglas step, he must show

that the evidence would allow a jury to reasonably “ (1)

disbelieve [Grossi’s] articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of [Grossi’s]

action. ” 65 The evidence here could allow a reasonable jury to

conclude either or both. He met that burden by showing Grossi’s purported reasons for searching his cell phone are

62 Appellee Br. at 20.

63 Hobgood

, 731 F.3d at 643

. 64 See i d

. 65 Fuentes , 32 F.3d at 764

.15 weak, implausible, contradictory

, incoherent , and more likely motivated by retaliation

. 66 Moreover, he has shown that Grossi

“treat ed other, similarly situated persons not of his protected class more favorably.” 67 Accordingly, summary judgment is inappropriate.

The first piece of evidence that unravels Grossi’s expressed reasons for searching the phone is its own employee

conduct policy. T he District Court explained how this policy bolsters Grossi’s argument because it allow s for search es of an employee’s property. B ut the District Court failed to appreciate that th is search actually violated that policy. T he policy allows for searches if Grossi “ has reasonable suspicion that an individual is involved in misconduct on Company premises .” 68 However, while Grossi alleges to have moved

Canada’s locker because it obstructe d the view of a surveillance camera, Grossi employees could not provide any legitimate basis for searching Canada’s locker , let alone the cellphone inside the locker

.

This is clear from the t estimony from Grossi

management

, contradict ing any reliance on this policy.

Edward Thompson , Canada’s direct supervisor, “ testified that, prior to plaintiff’s termination, he did not have any reason to suspect that [Canada] committed any type of misconduct on company premises .” 69 Similarly, O sorio, Grossi’s d irector of

h uman r esources, “ testified that she d [ id ] not remember

whether ‘ there was any reason to suspect that [Canada] was involved in any type of misconduct on company premises before his separation. ’ ” 70 We c onsider this in context with the

evidence that John Grossi, one of the company’s owners, approached Canada threatening that

, if he did not drop the

lawsuit

, Grossi would “just have other African

- American employees say the opposite of what [Canada’s] saying

. ” 71 The threat, made to intimidate Canada into dropping his lawsuit

, further weaken s Grossi’s argument

.

66 See i d . at 765

. 67 See i d

. 68 JA 11.

69 JA 11

– 12.

70 JA 11

. 71 JA 153.16 Canada has also shown the overall weakness of Grossi’s argument that the text messages were searched to see if the phone was Grossi’s property. Osorio testified in her deposit ion

that the cellphone they found was a Samsung (the kind Grossi issued to employees) and cellphones had recently “gone missing .” 72 B ut the veracity of this claim is suspect. Even

a ssuming there is some relevance to whether this was a company phone, as C anada points out, there were many easier

, less intrusive

, and far more reliable and appropriate ways for

Osorio to determine whether the phone inside the locker was a

company phone. F or example, Grossi keeps a running list of names of employees who were i ssued company phones, along

with the phones’ respective serial number s and device ID s

. S he c ould have easily located the serial number or device ID

of Canada’s phone and cross

- referenced it with the data on the

list. Thus , it is not at all clear on this record how text messages could establish if the cellphone was a company phone

.

A jury is much more likely to view t hat kind of search

as indicative of looking for something that would justify firing

Canada rather than tr ying to figure out if it was a company phone. I n addition, Canada claims that his phone was not the same Samsung model that Grossi issued to its employees. That would further support a finding that Grossi employees were trying to dig up dirt on Canada an d no t trying to ascertain if it

was a company phone. Canada also asserts that Osorio would have known this because “she assists with deployment of company phones to employees and ,” as mentioned before,

“ maintains a phone list identifying names, numbers, and device

IDs for everyone who has a company phone.” 73

Despite the lack of a coherent rationale for searching the phone, Osorio searched through more than a year’s worth of personal text messages before discovering the messages for which Canada was allegedly fired. The breadth of this search alone undermines the plausibility tha t Grossi was trying to see if the phone belonged to the company. As we have explained, a jury could find that reading text messages from this far back

in time is more suggestive of a search to find an excuse to fire

72 JA 303.

73 Appellant Br. at 46 (citing JA 284

- 85, 344

- 45).17 Canada in retaliation for his activity protected under Title VII, § 1981, the ADA, and FMLA

.

There is also evidence to support a finding that Grossi

treated other employees more favorably

. For example, Osorio testified that she was unaware of any other such searches of

company lockers and had never searched any other employee’s cellphone or personal items

. Moreover, an argument can be made that the lockers did not require emptying before being moved, as alleged by Grossi

, since a forklift was used

.

III.

For these reasons

, we reverse the District Court ’s grant of summary judgment to Grossi on Canada’s retaliation claim s under Title VII, § 1981, the ADA, and the FMLA ; and we

remand to the District Court for further proceedings consistent with this opinion.