2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-5-2010

Turner v. Pro Solutions Chiropractic Inc

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3064

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Recommended Citation

"Turner v. Pro Solutions Chiropractic Inc" (2010). 2010 Decisions. Paper 796.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-3064

_____________

DARNELL TURNER,

 Appellant

v.

PRO-SOLUTIONS FOR CHIROPRACTIC, INC.

 

_____________

On Appeal from the United States District Court 

for the Western District of Pennsylvania

(D.C. No. 2-07-cv-01269)

District Judge: Honorable Donetta W. Ambrose

_____________

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

July 15, 2010

Before: FUENTES, VANASKIE, and WEIS, Circuit Judges.

(Opinion Filed: August 5, 2010)

OPINION OF THE COURT

FUENTES, Circuit Judge:

Darnell Turner, an African-American, brought this Title VII action against his
The District Court had federal question jurisdiction pursuant to 28 U.S.C. § 1331. 

1

We have jurisdiction pursuant to 28 U.S.C. § 1291. 

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former employer, Pro-Solutions For Chiropractic, Inc. (“Pro-Solutions”), alleging that his

firing was the result of racial discrimination. The District Court granted defendant ProSolutions’ motion for summary judgment. The Court concluded that Turner had satisfied

the first stage of the familiar McDonnell-Douglas inquiry, making out a prima facie case

for race employment discrimination, and that Pro-Solutions had met its burden at the

second stage by explaining that it terminated Turner because it suspected he had

unlawfully attempted to sell its equipment. However, the court found that at the third

stage of the inquiry, Turner failed to show that Pro-Solutions’ explanation for its

employment decision was a pretext for discrimination. 

Turner appeals, arguing that a jury could disbelieve Pro-Solutions’ stated reason

for firing him because he was not confronted about the attempted theft while he worked at

the company, and since his employer could not articulate a specific basis for fearing

retaliation from him. We disagree and will affirm.1

I.

Because we write primarily for the parties, we set forth only the facts and history

that are relevant to our conclusion. Defendant Pro-Solutions sells therapeutic and

diagnostic equipment, including television monitors, for use by chiropractors. Plaintiff

Turner, an African-American, began working for the company in February 2006, shipping
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and tracking products sent from a warehouse in Cecil, Pennsylvania to Pro-Solutions’

customers. Prior to Turner’s hiring, Pro-Solutions outsourced the warehousing and

shipping for which Turner became responsible. 

Nicholas Pisciottano, the brother of Pro-Solutions’ President and CEO, Dr.

Maurice Pisciottano, also worked in the warehouse, though he was not involved in

packaging and shipping. Pisciottano is Caucasian. In May 2006, upon Turner’s

recommendation, Pro-Solutions hired Bryan Cherry, who is African-American, to assist

Turner in the warehouse. 

In September 2006, the warehouse owner, Richard Erenberg, told Dr. Pisciottano

that Turner had asked one of Erenberg’s employees if he wanted to buy a television out of

the warehouse. Dr. Pisciottano asked Harry Freucht, the Chief of Police for nearby Peters

Township, for advice. Freucht explained that the warehouse was outside his jurisdiction,

but suggested Pisciottano set up a “sting” operation and contact the Cecil police. 

Dr. Pisciottano instead told Pro-Solutions’ Director of Operations Edward Bishop

to fire Turner, Cherry, and Nicholas Pisciottano, and tell them the company intended to

look into outsourcing the warehouse functions. According to Dr. Pisciottano, he was

concerned about retaliation should he accuse Turner of stealing. “[H]e could beat me up,

he could pull a gun on me,” Dr. Pisciottano explained in his deposition testimony. (Supp.

App. at 39a.) “People who sell [stolen] TVs, I think they’re probably a little crazy. I

don’t know what else they might do.” (Id. at 39a.)
Cherry filed a substantially similar complaint in December 2007. The District 2

Court granted defendant Pro-Solutions’ motion for summary judgment. Cherry did not

appeal. Cherry v. Pro-Solutions for Chiropractic, Inc., No. 07-1692, 2009 U.S. Dist. LEXIS

86594 (W. D. Pa. Sept. 22, 2009).

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Pro-Solutions did not outsource its warehouse operation. Approximately one week

after the three firings, the company hired Timothy Linden, who is Caucasian, to work in

the warehouse. He quit about one month later. Employees already working for ProSolutions assumed warehouse duties thereafter.

According to the affidavit of Raymond Hunter, an employee of another warehouse

tenant, Nicholas Pisciottano told him that what the company had done to Turner was

“messed up,” that his brother Dr. Pisciottano “did not ‘do well’ around black people,” and

that the explanation for the firings “was false.” (Rep. & Recc. at 4.) Hunter relayed this

to Cherry, who told Turner. However, apart from the alleged employment discrimination

complained of by Turner in this case, neither Turner nor Cherry ever experienced any

form of discrimination, nor heard any derogatory comments concerning their race, while

they were employed at Pro-Solutions.

On September 9, 2007, Turner filed a complaint against Pro-Solutions, alleging

that his firing was based on illegal race discrimination in violation of Title VII of the

Civil Rights Act, 42 U.S.C. § 2000e et seq, 42 U.S.C. § 1981 and the Pennsylvania

Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. § 955(a). At the close of discovery, 2

Pro-Solutions filed a motion for summary judgment. Following discovery, the District
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Court accepted the magistrate judge’s Report and Recommendation and granted

defendant’s motion for summary judgment. Turner filed a timely notice of appeal. 

II.

This Court reviews de novo the District Court’s decision granting summary

judgment, applying the same standard of review as that used by the District Court. Curley

v. Klem, 298 F.3d 271, 276 (3d Cir. 2002). Summary judgment is appropriate if “there is

no genuine issue as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c). The evidence must be viewed in the light most favorable

to Turner, the non-moving party. Bartnicki v. Vopper, 200 F.3d 109, 114 (3d Cir. 1999).

Turner’s Title VII race discrimination claims must be scrutinized under the threestage inquiry of McDonnell Douglas Corp. v. Green, and its progeny. The analysis

required for adjudicating Turner’s claim under the PHRA is identical, and we therefore

address the claims together. Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313,

317 n.3 (3d Cir. 2000). 

Turner met his initial burden to present a prima facie case of race employment

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

Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). The burden of production shifted to ProSolutions to articulate a legitimate, non-discriminatory reason for Turner’s termination –

a “relatively light burden.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). After

Pro-Solutions explained that it suspected Turner had attempted to steal company property,
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the burden shifted back to Turner to show by a preponderance of the evidence that the

employer’s proffered reason was pretextual. Id. at 763. 

The sole issue is whether the District Court correctly concluded, at the third stage

of the inquiry, that Turner failed to show that Pro-Solutions’ explanation for its

employment decision was a pretext for discrimination. To avoid summary judgment

when Pro-Solutions provided legitimate, non-discriminatory reasons for firing him,

Turner 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 of the employer’s action.

Id. at 764. 

We agree with the District Court that Turner has not demonstrated that ProSolutions’ explanation for firing him is a pretext for unlawful discrimination. The

evidence presented by Turner must “allow a fact finder reasonably to infer that each of

the employer’s proffered non-discriminatory reasons . . . was either a post hoc fabrication

or otherwise did not actually motivate the employment action (that is, the proffered reason

is a pretext).” Id. Turner’s burden of production accords with the burden of persuasion

resting, at all times, with the plaintiff. See Texas Dept. of Cmty. Affairs v. Burdine, 450

U.S. 248, 253 (1981). The resulting “difficult burden” on the plaintiff is “inherent” to

adjudication of employment discrimination disputes. Ezold v. Wolf, Block, Schorr and

Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992). 
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Turner has offered no evidence to dispute Dr. Pisciottano’s and Erenberg’s

testimony concerning Turner’s offer to Erenberg’s employee to buy a television out of the

warehouse, or Chief Freucht’s testimony that Dr. Pisciottano spoke with him about the

attempted theft. Rather, Turner argues that a jury could disbelieve Pro-Solutions’

explanation because he was not confronted about the theft while employed at ProSolutions. However, an employer is not required to discuss accusations of theft with an

at-will employee before firing him. See Weaver v. Harpster, 601 Pa. 488, 500 (2009). 

Whether doing so is a better business practice is irrelevant to the question of pretext. 

Fuentes, 32 F.3d at 765. 

Turner also argues that a jury could disbelieve Pro-Solutions’ explanation because

Dr. Pisciottano failed to articulate a specific reason for fearing retaliation from Turner. 

However, he did say: “People who sell [stolen] TVs, I think they’re probably a little

crazy. I don’t know what else they might do.” (Supp. App. at 39a.) Moreover, while

plaintiff’s evidence need not directly contradict defendant’s explanation, Turner may not

simply argue that the fact finder should disbelieve his former employer’s explanation. 

Fuentes, 32 F.3d at 764. That Dr. Pisciottano could not specifically identify the basis for

his fear of retaliation does not undermine the evidence supporting his suspicions of

Turner’s illegal activities. 

III.

For the foregoing reasons, we affirm the judgment of the District Court.