2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-15-2010

Kunle Ade v. Kidspeace Corp

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1868

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Recommended Citation

"Kunle Ade v. Kidspeace Corp" (2010). 2010 Decisions. Paper 257.

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-1868

___________

KUNLE ADE,

Appellant,

v.

KIDSPEACE CORPORATION

______________

Appeal from the United States District Court 

for the Eastern District of Pennsylvania

(No. 09-cv-01071)

District Court Judge: Honorable Jan E. Dubois

__________

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

November 15, 2010

___________

Before: AMBRO, FISHER, GARTH, Circuit Judges.

(Opinion Filed: November 15, 2010)

___________

OPINION

___________

GARTH, Circuit Judge:
2

Appellant Kunle Ade (“Ade”) appeals from the District Court’s grant of summary 

judgment in favor of appellee KidsPeace Corporation (“KidsPeace”). Ade alleged claims 

of racial and national origin discrimination in violation of Title VII of the Civil Rights 

Act, 42 U.S.C. § 2000e et seq. (“Title VII”), the Pennsylvania Human Relations Act, 43 

P.S. § 951 et seq. (“PHRA”), and 42 U.S.C. § 1981. He also alleged retaliatory 

termination under 42 U.S.C. § 1981, and common law wrongful termination and breach 

of implied contract. 

The District Court granted appellee’s motion for summary judgment as to all 

claims. In his brief to this Court, Ade does not appeal his common law claims, but 

appeals the grant of summary judgment as to all other claims. We will affirm.

I.

We write exclusively for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we set forth only those facts necessary to our 

analysis. 

Ade, an African-American male of Liberian descent, was hired on January 15, 

2006 by KidsPeace, a private charity that serves the behavioral and mental health needs 

of children and teens. Ade began as a late-night child care counselor, a position which 

provides security and support for residential clients. He worked at the Patriot Center, 

which is a collection of homes located in Orefield, Lehigh County, Pennsylvania. In 

April 2006, Ade also began working as a part-time member of the therapeutic support 

staff at the Patriot Center. In December 2007, KidsPeace terminated Ade.
3

At the time Ade was hired, he was provided with a KidsPeace employee 

handbook. The handbook includes a Harassment Policy, which prohibits employees from 

engaging in acts of harassment and/or discrimination based on sex and provides that 

violations may result in disciplinary action, up to and including termination of 

employment.

KidsPeace avers that Ade was involved in several inappropriate incidents 

involving female co-workers, and this was the main reason for his termination.1 In 

response to Ade’s inappropriate conduct, KidsPeace verbally disciplined Ade and 

provided him with written discipline prior to termination. After investigating the third 

and fourth incidents and determining that Ade violated the KidsPeace Harassment Policy, 

KidsPeace ultimately terminated Ade.

There were four main incidents of inappropriate conduct. First, on January 3, 

2007, Kara Williams complained that Ade made sexually inappropriate comments to her 

about her breasts. According to Williams, Ade pointed to her breasts and stated, “What 

would you do if I touched those?” KidsPeace maintains that Ade was verbally counseled 

regarding this incident with Ms. Williams. No formal disciplinary action was taken, but 

the cases that Ade and Williams shared were reassigned, and Ade and Williams no longer 

worked together after January 2007.

Second, on March 1, 2007, Pam Peters complained that Ade behaved 

inappropriately towards her by purposely opening a desk drawer into her stomach. Ms. 

 

1

In addition, Ade was given verbal warnings for violating KidsPeace attendance policies.
4

Peters’ complaint was investigated by KidsPeace, but ultimately, Ade was not disciplined 

for the incident because Peters’ allegations could not be corroborated. 

The third incident occurred the night of March 22, 2007. Ade and Jeanine 

Martincavage were working together as late night counselors at Revere house. The 

incident began when Ade became angry that Martincavage was feeding stray cats. The 

versions of the story vary slightly—Ade avers that Martincavage pushed him before he 

pushed her—but it is clear that during the exchange Ade pushed Martincavage. Ms. 

Martincavage also alleged that Ade repeatedly cursed at her and threatened to hurt the 

cats. In response to the incident with Martincavage, KidsPeace employees conducted an 

investigation, during which they obtained statements from both Ade and Martincavage. 

KidsPeace ultimately concluded that Ade’s actions violated the KidsPeace Employee 

Conduct and Harassment Policies. Ade’s actions were deemed to be discourteous and 

abusive and were thus grounds for immediate termination. Nevertheless, Ade was not 

terminated and was provided with a final written warning. On April 4, 2007, three days 

after receiving the warning, Ade provided Doran with a letter stating he felt that 

KidsPeace’s decision was unfair and biased.

Finally, on November 25, 2007, Ade worked a night shift with Amanda Warner. 

Three days later, Ms. Warner reported a complaint to Donna Doran, a Supervisor at the 

time. Warner complained that Ade sexually harassed her both verbally and physically. 

She told Doran that Ade forced himself on top of her, touched her breasts and tried to kiss 

her. She also stated that when she told him to stop and raised her voice, he covered her 

mouth with his hand. Warner prepared a handwritten complaint for Doran. Upon 
5

complaint by Warner, KidsPeace began an investigation. As part of this investigation, 

Ade was questioned and given an opportunity to provide his side of the story, though he 

was not shown a copy of Ms. Warner’s written complaint. Based upon the results of this 

investigation and Ade’s history of inappropriate conduct, he was placed on immediate 

administrative leave with the recommendation that he be terminated. 

On or about December 2, 2007, Ade met with Amy Remmel in Human Resources. 

Ms. Remmel testified that during this meeting Ade stated that he did not trust the women 

at KidsPeace. Finally, on December 4, 2007, KidsPeace terminated Ade.

Ade makes several allegations of conduct that are pertinent to his claims of 

discrimination and retaliation. Ade’s allegations can be summarized as follows: (1) that

certain employees at KidsPeace made discriminatory comments toward him; (2) that 

KidsPeace treated Ade unfairly in regard to complaints of sexual harassment made 

against him; and (3) that KidsPeace generally treated white employees more favorably 

than black employees.

When Ade was hired, he was initially assigned to work under Jane Marino, a 

Supervisor, and Donna Doran, an Assistant Supervisor at the time. On or about his third 

day of work, Ade met Pam Peters, a colleague who never exercised supervisory authority 

over him. Ms. Peters was a fellow late night child care counselor. When Marino 

introduced Ade to Peters, Peters asked Ade if it were true that he was from Africa and 

commented that Ade did not have the “typical African accent.” She then asked Ade: “Is 

it really true you people from Africa wear leaves?” Ade complained about the comment 

to Ms. Marino once that day and once a few months later as part of a more general 
6

conversation. About a year after being hired, Ade complained about the comment to 

Scott Pompa, a late night manager for KidsPeace.

In approximately May or June of 2007, Ade was eating lunch with a Syrian coworker, who offered him some Syrian food. Ms. Doran, who at this point had been 

promoted from Assistant Supervisor to Supervisor, pointed to the food and said “That 

looks like a turd. Will you eat that?” She then asked, “you guys eat stuff like that in 

Africa?” Ade reported this comment to Ms. Remmel. Ms. Remmel told Ade he should 

discuss the comment with her boss Scott Pompa if he wanted to pursue the complaint. 

After this discussion, Ade never discussed the comment with Pompa or made a formal 

complaint about it.

In addition to complaints about discriminatory comments, Ade alleges that he was 

treated unfairly in regard to allegations of inappropriate conduct and sexual harassment

against him. Ade alleges that, after the incident with co-worker Jeanine Martincavage, he 

was treated less favorably than her. Ade alleges that Martincavage pushed him to prevent 

him from scaring the stray cats, and he then pushed her back. Ade argues that he was 

written up for this incident but Ms. Martincavage was not because of their different racial 

backgrounds.

Ade also alleges that he was treated unfairly regarding Amanda Warner’s 

accusations of sexual harassment against him. After Warner made an accusation of 

sexual harassment against Ade, Ade denied the accusations, and complained verbally to 

Doran and Lea Nissley on November 28, 2007 that he was being treated differently 

because of his race and gender. Ade asked to see the written complaint by Ms. Warner, 
7

but Remmel would not show it to him. Ade wrote a letter to Doran requesting that 

KidsPeace investigate Ms. Warner’s accusations, and gave this letter to Remmel on 

December 3, 2007. 

Finally, Ade alleges that black employees were generally treated less favorably 

than white employees. He points to the fact that certain white employees were not 

punished for feeding stray cats. However, KidsPeace maintained no official policy 

against feeding stray cats. Ade further points to the fact that KidsPeace terminated a 

black employee, Sherwood Dejoie, for sleeping on the job, but did not discipline white 

employees who allegedly slept on the job. Ms. Doran personally observed Dejoie 

sleeping on the job three or four times. The evidence of white employees sleeping on the 

job consisted of pictures that Ade took of these employees.

Ade alleges that Jeff Onuschco, a white employee, sexually harassed co-workers, 

but was not disciplined for it, while Ade was terminated for alleged sexual harassment. 

Ade has provided the following evidence that Onuschco sexually harassed co-workers. 

First, Jacqueline Burns, a former employee of KidsPeace, testified in her deposition that 

Jeff made inappropriate comments to her between May 2006 and October 2006. She 

further testified that she told Ms. Marino about these comments. She also testified that 

she wrote something down regarding the issue and gave it to Ms. Marino. 

Additionally, Kimberly Fleming-Arnold testified that Mr. Onuschco sent her a 

naked picture of himself. She testified that she told him to stop, and he did thereafter; 

thus she took it no further. Ms. Fleming-Arnold’s husband testified that, in the summer 

of 2006, he reported to Mr. Pompa that Mr. Onuschco had sent sexual emails to his wife. 
8

He testified that Mr. Pompa dismissed the complaints. Mr. Arnold then spoke with Bob 

in Human Resources, and handed him certain emails from Mr. Onuschco to Ms. Arnold.

Finally, Ade argues that employees were not disciplined for stealing money from 

the children’s fund box. Kathleen Somers, an employee at KidsPeace, testified that she 

was aware that money from the children’s funds was being taken. She reported this to 

the man who had control of the money box, Sean McPeek, a Caucasian. McPeek gave 

her the “runaround.” Somers never reported the issue to anyone else. 

Pertinent to his retaliation claim, Ade alleges the following adverse employment 

actions. First, Ade was assigned to work at Paul Revere House, a co-ed house, after he 

requested not to be assigned to this house. Second, Ade was terminated.

II.

The District Court had subject matter jurisdiction over Ade’s federal claims 

pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the state law claims 

pursuant to 28 U.S.C. § 1367. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

This Court’s scope of review over the District Court’s grant of summary judgment 

is plenary. Lauren W. v. Deflaminis, 480 F.3d 259, 265 (3d Cir. 2007). We affirm those 

orders if our review reveals that “there is no genuine issue of material fact and that the 

moving party is entitled to judgment as a matter of law.” Id. We review the facts “in the 

light most favorable to the non-moving part[y], and draw all reasonable factual inferences 

in” his favor. Id. A genuine issue of material fact exists “if the evidence is such that a 
9

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986).

III.

A. Race and National Origin Discrimination claims

The framework for evaluating summary judgment motions under Title VII was 

established by the Supreme Court in McDonnell Douglas Corp v. Green, 411 U.S. 792, 

802 (1973). As explained in Texas Dept. of Cmty. Affairs v. Burdine: 

First, the plaintiff has the burden of proving by the preponderance of 

the evidence a prima facie case of discrimination. Second, if the 

plaintiff succeeds in proving the prima facie case, the burden shifts 

to the defendant to articulate some legitimate, nondiscriminatory 

reason for the employee's rejection. Third, should the defendant 

carry this burden, the plaintiff must then have an opportunity to 

prove by a preponderance of the evidence that the legitimate reasons 

offered by the defendant were not its true reasons, but were a pretext 

for discrimination.

450 U.S. 248, 252-53 (1981) (internal citations and quotation marks omitted). “The 

ultimate burden of persuading the trier of fact that the defendant intentionally 

discriminated against the plaintiff remains at all times with the plaintiff.” Id. at 253. 

Section 1981 and PHRA claims alleging race and national origin discrimination are 

analyzed under the same burden-shifting framework as Title VII claims. Jones v. School 

Dist. of Phila, 198 F.3d 403, 410 (3d Cir. 1999).

Even if we assume that Ade has established a prima facie case of discrimination, 

KidsPeace has satisfied its burden of articulating a legitimate reason for Ade’s 

termination: Ade’s violation of the KidsPeace Harassment Policy. Ade fails to satisfy
10

the third step of the McDonnell Douglas framework because he has provided insufficient 

evidence to establish that KidsPeace’s proffered legitimate reason was a pretext for 

discrimination.

Ade’s evidence fails to cast sufficient doubt upon KidsPeace’s reason for 

terminating him. The ultimate question is not whether KidsPeace was absolutely right to 

determine that Ade had violated the Harassment Policy, but whether it was so clearly 

wrong as to imply a discriminatory animus.

To counter KidsPeace’s assertions that he violated the Harassment Policy and 

engaged in inappropriate conduct, Ade simply offers denials of his own inappropriate 

conduct, and his opinion that the real reason was a racial animus. A denial that he 

engaged in the conduct for which he was purportedly terminated is insufficient to create a 

genuine issue of material fact. See Waggoner v. Garland, 987 F.2d 1160, 1166 (5th Cir. 

1993) (veracity of underlying charge “largely irrelevant” where employer had “good faith 

belief” that employee committed offensive behavior). His own personal belief that the 

true reason for the discharge was racial discrimination is similarly insufficient to create a 

genuine issue of material fact. See id. at 1164 (subjective belief that discharge was based 

on a discriminatory animus insufficient to establish claim for purposes of summary 

judgment). 

Ade disputes the substance of the harassment claims, but cannot dispute that 

complaints were made to KidsPeace management and that KidsPeace investigated those 

complaints. The record reflects that KidsPeace was made aware of four separate 

incidents involving Ade and different female employees. KidsPeace investigated the 
11

misconduct regarding three of these complaints, verbally counseled Ade for the first, and 

determined that disciplinary action was required in response to the third and fourth. In 

response to the Martincavage incident, KidsPeace found Ade had violated its policies and 

issued Ade a written warning, stating that any further incident could lead to termination. 

Finally, after an investigation into the Warner complaint, KidsPeace again determined 

that Ade had violated the organization’s harassment policy, and ultimately terminated his 

employment. The record does not display sufficient, if any, facts to demonstrate that 

KidsPeace’s proffered reason is plainly wrong. 

Ade can also survive summary judgment by pointing to evidence in the record 

“from which a factfinder could reasonably . . . believe that an invidious discriminatory 

reason was more likely than not a motivating or determinative cause.” Fuentes v. 

Perskie, 32 F.3d 759, 764 (3d Cir. 1994). For example, a “plaintiff may show that the 

employer has previously discriminated against [him], that the employer has discriminated 

against other persons within the plaintiff's protected class or within another protected 

class, or that the employer has treated more favorably similarly situated persons not 

within the protected class.” Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 

639, 645 (3d Cir. 1998).

Ade points to two discriminatory comments allegedly made to him by Pam Peters 

and Donna Doran. These two comments were temporally remote and do not tend to show 

a discriminatory reason was more likely than not a motivating cause of his discharge. 

Peters’ comment was made nearly two years prior to Ade’s termination, and further, 

Peters never maintained any supervisory authority over Ade and was not responsible for 
12

the decision to terminate him. See Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 359 

(3d Cir. 1999) (“Stray remarks by non-decisionmakers or by decisionmakers unrelated to

the decision process are rarely given great weight, particularly if they were made 

temporally remote from the date of decision.”). 

Doran was Ade’s supervisor and involved in the decision-making process to 

terminate Ade, but her comment and question relating to a piece of food, made 

approximately six months before Ade’s termination, are insufficient to show that a 

discriminatory animus was the likely cause of the adverse action. See Keller v. Orix 

Credit Alliance, Inc., 130 F.3d 1101, 1112 (3d Cir. 1997) (comment made by decision 

maker approximately four to five months prior to termination insufficient to prove by a 

preponderance of the evidence that discrimination was a determinative cause of 

employee’s termination). Finally, the notion that Ade was discriminated against because 

KidsPeace did not accommodate his requests to change facilities is unsubstantiated; there 

is no evidence that this was motivated by any discriminatory animus.

Ade’s argument that KidsPeace generally treated employees differently based on 

their racial background is not supported by the record. Ade contends that white 

employees who were caught sleeping on the job were not fired, while a black employee 

was fired for the same behavior. It is true that a black employee was fired for sleeping on 

the job several times. However, a supervisor personally observed this employee sleeping 

on the job. The evidence that Ade presents of white employees sleeping on the job 

consists of photographs that Ade himself provided to KidsPeace. These photos, in 

addition to not being personal observations by KidsPeace management, are extremely 
13

blurry and not conclusive as to whether any of the individuals pictured were asleep. Thus 

this evidence is not probative of differential treatment. 

Ade’s attempts to show that similarly situated individuals not in the protected class 

were treated more favorably than him is similarly unavailing. Ade’s comparators 

engaged in very different conduct than that which led to Ade’s termination. 

Feeding stray cats is entirely different conduct from sexual harassment and verbal 

and physical abuse; it was not the same level of seriousness, nor was it even a clear 

violation of KidsPeace policy. 

Ade asserts that he was denied a request for personal leave of absence, yet 

KidsPeace allowed Scott Pompa, a Caucasian employee, to take six months of personal 

leave. Pompa, however, was a Manager of Residential Programs and held an entirely 

different position to Ade. The two were therefore not similarly situated.

With respect to the alleged theft of the children’s funds, there is no evidence that 

any complaint was ever made to any manager or human resources employee. Without 

knowledge of wrongdoing, management could not take any action. Thus this situation is 

inapposite.

Finally, Ade argues that he was treated differently from a similarly situated 

employee because he was terminated for violating the sexual harassment policy, whereas 

KidsPeace did not discipline Jeff Onuschco, a Caucasian employee, for allegedly 

subjecting female co-workers to sexual harassment. However, the District Court was 

correct to point out that there was a key difference between Ade and Onuschco. All of 

the allegations regarding Onuschco related to sexually explicit comments made to female 
14

employees; there are no allegations that Onuschco ever inappropriately touched a female 

employee. Ade, on the other hand, allegedly pushed Jeanine Martincavage and forced 

himself on top of Amanda Warner. Additionally, the record discloses four instances of 

complaints to superiors of inappropriate conduct by Ade, while only one female 

employee (and one male non-employee) complained to KidsPeace supervisors about 

Onuschco’s conduct. 

In summary, Ade’s evidence is insufficient as a matter of law to show that 

KidsPeace’s proffered legitimate reason for terminating him was pretextual. The District 

Court properly granted summary judgment on Ade’s claims of race and national origin 

discrimination.

B. Retaliation claim

Ade claims that KidsPeace terminated him in retaliation for engaging in protected 

activity—namely, his various complaints to KidsPeace that he was being discriminated 

against based on his race. The District Court applied the McDonnell Douglas burdenshifting framework to the retaliation claim and concluded that Ade could not meet his 

burden of establishing that KidsPeace’s proffered legitimate reason was a pretext for 

retaliatory termination. On appeal, Ade argues that the McDonnell Douglas framework is 

not the correct framework for analyzing retaliation claims and that a plaintiff is not 

required to show pretext on a retaliation claim. However, Ade’s claim fails both under 

the McDonnell Douglas framework and under Hill v. Borough of Kutztown, 455 F.3d 

225, 241 (3d Cir. 2006), and Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005).
15

The evidence indicates that KidsPeace terminated Ade for legitimate reasons relating to 

his conduct as an employee.

The District Court was correct to grant KidsPeace’s motion for summary judgment 

as to Ade’s retaliation claim.

IV.

The District Court did not err in granting summary judgment to KidsPeace. For 

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