NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-4552

_____________

REGINALD FENTER,

 Appellant

v.

MONDELEZ GLOBAL, LLC.

_____________

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(Civ. Action No. 2-11-cv-04916)

District Judge: Honorable Robert F. Kelly

_____________

Submitted Pursuant to LAR 34.1(a)

on November 6, 2013

Before: GREENAWAY JR., VANASKIE, and ROTH, Circuit Judges

(Filed: August 4, 2014)

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OPINION

__________

VANASKIE, Circuit Judge.

Appellant Reginald Fenter appeals the District Court’s grant of summary judgment 

in favor of Mondelez Global LLC, formerly known as Kraft Foods Global, Inc. (“Kraft”), 

in this employment discrimination action asserting claims under 42 U.S.C. § 1981 and the 
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New Jersey Law Against Discrimination, N.J. STAT. ANN. § 10:5-1–10:5-49, for 

disparate treatment, hostile work environment, constructive discharge, and retaliation. 

For the reasons that follow, we will affirm.

I.

We write primarily for the parties, who are familiar with the facts and procedural 

history of this case. Accordingly, we set forth only those facts necessary to our analysis.

Fenter, an African-American, was employed by Kraft from July 8, 1974 until he 

retired on February 1, 2008. Fenter began his career at Kraft as a sales representative. 

Throughout his 33 years with the company, Fenter was promoted to various positions, 

including account representative, sales supervisor, customer business manager, and retail 

sales manager – the position he held at the time of his retirement. 

In addition to several promotions, Kraft recognized Fenter’s exemplary sales 

performance by bestowing upon him company awards and consistently giving him 

positive annual performance reviews. Fenter received an annual performance rating of 

“Exceeds Expectations” 24 times, and a rating of “Fully Meets Expectations” 9 times. 

He never received a negative performance review. 

In 2000, Kraft purchased and merged with Nabisco. For several years after the 

merger, Kraft and Nabisco maintained separate sales forces, and Fenter remained 

responsible for selling only Kraft products. Then, around June 2007, Kraft implemented 

a new sales strategy known as “Wall-to-Wall,” combining the Kraft and Nabisco sales 

forces. After the implementation of Wall-to-Wall, sales representatives and retail sales 
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managers, including Fenter, became responsible for selling a portfolio consisting of both 

Kraft and Nabisco products. 

As part of this strategy, Kraft designed new sales territories and assigned a sales 

team to cover the geographic region comprising each new territory. In June 2007, Fenter 

was assigned to sales team 655, which was responsible for the sale of Kraft and Nabisco 

products throughout the Northern New Jersey sales territory. The Northern New Jersey 

sales territory included Newark, East and West Orange, Irvington, Paterson, and Jersey 

City. 

Dissatisfied with the sales territory to which he was assigned as well as the 

composition of the sales team with which he had to work, Fenter retired on February 1, 

2008. In connection with his retirement, he requested a severance package, but his 

request was denied on the ground that the company severance pay policy excluded those 

who voluntarily retired. 

More than three years after retiring, Fenter brought this race discrimination action 

against Kraft. His complaint, filed on August 1, 2011, asserted claims of disparate 

treatment, racially hostile work environment, constructive discharge, and retaliation 

under 42 U.S.C. § 1981 and the New Jersey Law Against Discrimination stemming from 

the assignment of his new sales territory and sales team, as well as the denial of his 

request for severance pay. The complaint alleged that Kraft assigned Fenter to an 

unfavorable sales team in a distant and crime-ridden sales territory because of his race 

and in retaliation for having complained about Kraft’s racial discrimination. According 
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to Fenter, he was assigned to a sales territory spanning an area that required him to travel 

between 48 and 82 miles from his home, but white retail sales managers were assigned to 

territories closer to where they lived. Fenter also asserted that his sales team was 

comprised of poor performing sales representatives who had less experience selling 

Nabisco products than the individuals who made up the sales teams under the supervision 

of his white peers. He claimed that the sales team and sales territory to which he was 

assigned as part of Wall-to-Wall created a work environment so intolerable that he was 

forced to retire, and thus was constructively discharged. Further, Fenter contended that 

Kraft retaliated against him by denying his request for severance pay. 

On December 27, 2011, the District Court dismissed Fenter’s claims under the 

New Jersey Law Against Discrimination as time-barred, and the case proceeded to 

discovery on the Section 1981 claims. On August 7, 2012, Fenter filed a motion to 

compel, seeking to force Kraft to more fully respond to certain interrogatories and 

requests for production of documents. The District Court denied Fenter’s motion on 

August 24, 2012, and discovery closed on August 31, 2012. Following discovery, Kraft 

moved for summary judgment. Fenter opposed Kraft’s motion for summary judgment by 

requesting additional discovery pursuant to Federal Rule of Civil Procedure 56(d), and by 

arguing that he presented sufficient evidence to survive summary judgment. On 

November 14, 2012, the District Court denied Fenter’s request pursuant to Rule 56(d) 

and granted summary judgment in favor of Kraft. This appeal followed. 

II.
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A.

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have 

appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district 

court’s grant of summary judgment, “applying the same test that the District Court . . . 

applied and viewing the facts in the light most favorable to the nonmoving party.” 

Schneyder v. Smith, 653 F.3d 313, 318 (3d Cir. 2011). We will affirm a grant of 

summary judgment where our review reveals “that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Interstate 

Outdoor Adver., L.P. v. Zoning Bd. of Twp. of Mount Laurel, 706 F.3d 527, 530 (3d Cir. 

2013) (quoting Fed. R. Civ. P. 56(a)).

In a case such as this one, where a plaintiff bringing an action under 42 U.S.C. § 

1981 puts forth only indirect evidence of discrimination, we apply the familiar burden 

shifting framework articulated by the Supreme Court in McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973). See Jones v. School Dist. of Phila., 198 F.3d 403, 410 (3d 

Cir. 1999) (applying McDonnell Douglas framework to § 1981 claim). Under the 

McDonnell Douglas framework, the plaintiff bears the initial burden of making a prima 

facie showing of discrimination. See McDonnell Douglas, 411 U.S. at 802. The burden 

then shifts to the defendant to “articulate some legitimate, nondiscriminatory reason” for 

the employment actions at issue. Id.

If the defendant meets its “relatively light burden by articulating a legitimate 

reason for the unfavorable employment decision,” the burden of production shifts back to 
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the plaintiff to present evidence from which a reasonable factfinder could infer that the 

employer’s proffered reasons are pretextual. Fuentes v. Perskie, 32 F.3d 759, 763 (3d 

Cir. 1994). To defeat summary judgment at the pretext stage, “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 of the employer’s action.” Id. at 764. 

The primary issue on appeal is whether the District Court correctly concluded that 

Fenter failed, at the third stage of the McDonnell Douglas framework, to present 

evidence from which a jury could reasonably find that the justifications offered by Kraft 

for the employment actions at issue were pretexts for unlawful discrimination. To 

survive summary judgment, it is not enough for a plaintiff to simply declare that the 

reasons proffered by the employer are pretextual. See Fuentes, 32 F.3d at 765. The 

plaintiff must point to evidence demonstrating “such weaknesses, implausibilities, 

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate 

reasons for its action[s] that a reasonable factfinder could rationally find them unworthy 

of credence and hence infer that the employer did not act for the asserted 

nondiscriminatory reasons.” Id. (internal citation, alterations, and quotation marks 

omitted). We agree with the District Court that Fenter did not present sufficient evidence 
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to enable a rational jury to discredit the non-discriminatory reasons advanced by Kraft for 

the employment decisions at issue in this case.1

In its motion for summary judgment, Kraft asserted that it followed a three step 

approach in designing sales territories and assigning to those territories sales 

representatives and retail sales managers. The company began by reconfiguring the 

geographic landscape comprising its sales territories. According to Kraft, the 

geographical makeup of the new territories was determined based on business continuity 

and business needs, which took into consideration several factors, including: the number 

of stores in each market; the distance between stores selling Kraft products within a given 

region; and the level of influence that Kraft had over merchandising in different stores.

Kraft asserts that once it had demarcated the new sales territories, the company 

assigned each sales representative to a particular territory “based on their experience and 

knowledge of the customer, knowledge of the territory, familiarity with personnel in the 

store, and residence of the sales representative.” (App. 241.) Fenter’s claim that he was 

assigned to an inexperienced sales team for discriminatory or retaliatory reasons is 

 

1 Like the District Court, we assume arguendo that Fenter has established a prima 

facie case of discrimination. Because we find that Fenter has failed to demonstrate 

pretext, we need not resolve the issue of whether the relevant employment decisions

qualify as “adverse employment action[s],” which we have defined as “one[s] which [are] 

‘serious and tangible enough to alter an employee’s compensation, terms, conditions, or 

privileges of employment.’” Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001) 

(internal quotation marks omitted). 
8

unfounded, according to Kraft, because the company did not consider sales 

representatives’ performance evaluations when assigning them to sales territories. 

Kraft avers that business continuity and business needs were the foremost 

factors that the company considered in designing sales territories and constructing teams 

of sales representatives to cover the territories. Kraft explains that travel distance played 

only a minor role in the sales territory that each retail sales manager was appointed to 

cover, and “[a]ll Kraft heritage employees were challenged when Wall-to-Wall was 

implemented . . . .” (App. 240.) 

We agree with the District Court that Fenter has failed to provide any evidence 

that the reasons offered by Kraft regarding Fenter’s sales team and sales territory 

assignments were pretexts for unlawful discrimination. Fenter does not rebut Kraft’s 

reasons for assigning him to sales team 655 in the Northern New Jersey sales territory. 

Furthermore, Fenter has not presented any evidence to indicate that Kraft “acted with 

discriminatory animus.” Burton v. Teleflex Inc., 707 F.3d 417, 431 (3d Cir. 2013). We 

will therefore affirm the District Court’s grant of summary judgment in favor of Kraft on 

Fenter’s Section 1981 claims for disparate treatment.

We also agree with the District Court that Fenter failed to present sufficient 

evidence to avoid summary judgment on his hostile work environment and constructive 

discharge claims. To make a prima facie case of hostile work environment, a plaintiff 

must establish the following five elements: (1) he suffered intentional discrimination 

because of his race; (2) the discrimination was severe or pervasive; (3) the discrimination 
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detrimentally affected him; (4) the discrimination would have detrimentally affected a 

reasonable person of the same race in his position; and (5) there is a basis for employer 

liability. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996). To 

establish that a hostile work environment led to a constructive discharge, a plaintiff must 

further show that “the employer knowingly permitted conditions of discrimination in 

employment so intolerable that a reasonable person subject to them would resign.” Id. at 

1084 (quoting Goss v. Exxon Office Systems Co., 747 F.2d 885, 888 (3d Cir. 1984)). 

Fenter failed to present evidence that, because of his race, he was subjected to 

harassment “sufficiently severe or pervasive to alter the conditions of [his] employment 

and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 

U.S. 57, 67 (1986) (quotation marks omitted). While Fenter was dissatisfied with his 

sales team and sales territory assignments, neither his assignments nor the treatment he 

received rose to the level of an actionable hostile work environment. Because Fenter 

failed to establish a hostile work environment claim, it follows that he did not meet the 

higher standard necessary to show constructive discharge. See Pa. State Police v. Suders, 

542 U.S. 129, 147 (2004) (“A hostile-environment constructive discharge claim entails 

something more [than what is required to establish a hostile work environment claim].”). 

In addition to his discrimination claims, Fenter claims that he was the victim of 

unlawful workplace retaliation. For a claim of retaliation under Section 1981, the same 

McDonnell Douglas burden-shifting framework discussed above with respect to 

discrimination applies. See Jones, 198 F.3d at 410. In order to establish a prima facie 
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case of retaliation, an employee must show that: (1) he engaged in a protected activity; 

(2) he suffered an adverse employment action; and (3) a causal link exists between the 

employee’s protected activity and the purportedly adverse employment action. Marra v. 

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

If the employee establishes his prima facie case, “the burden shifts to the employer 

to advance a legitimate, non-retaliatory reason for its conduct . . . .” Moore v. City of 

Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006) (internal quotation marks omitted). If the 

employer carries its burden, it will be entitled to summary judgment unless the plaintiff 

produces “some evidence from which a jury could reasonably reach [the] conclusions” 

both “that the employer’s proffered explanation was false, and that retaliation was the 

real reason for the adverse employment action.” Id.

Fenter asserts that Kraft retaliated against him for having complained about race 

discrimination and for his activities in support of the Black Sales Caucus.2 He claims that 

Kraft did so by assigning him to an undesirable sales team and a sales territory that 

required him to travel farther than his white peers, as well as by refusing his request for a 

severance package upon retirement. 

We need not decide whether Fenter established a prima facie case of retaliation, 

because, even if he had, Fenter does not provide any evidence to undermine Kraft’s 

 

2 Fenter was a member of Kraft’s Black Sales Caucus, whose principal objective 

was to protect the rights of minority sales employees and assist them in advancing their 

careers at Kraft. Compl. ¶ 12. As part of Fenter’s involvement in this group, he 

mentored eight employees, and advocated forcefully for the promotion of four qualified 

African American sales representatives. Id.
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legitimate, nonretaliatory reasons for making the employment decisions of which he now 

complains. As previously discussed, Fenter failed to discredit Kraft’s explanation that he 

was assigned to sales team 655 and the Northern New Jersey sales territory based on 

business continuity and business needs. 

With respect to severance pay, Kraft asserts that Fenter was ineligible for a 

severance package under the company’s severance pay plan, which states that “[a]n 

Employee shall not be eligible for severance pay under this Plan if . . . the Employee 

voluntarily resigned from employment with the Employer.” (App. 424.) Fenter does not 

deny that adherence to internal policies is a legitimate, nondiscriminatory business 

justification. See e.g. Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 322-23 

(3d Cir. 2000) (finding that employer presented a legitimate, nondiscriminatory reason 

when it terminated an employee according to company policy). Rather, he asserts that 

Kraft should have provided him with severance pay because the company deviated from 

its own policy on four occasions by providing severance packages to employees who did 

not meet its severance pay plan eligibility criteria.3 But as Fenter concedes, each of the 

alleged comparators that he offers in support of his claim that Kraft denied him severance 

 

3 Under Kraft’s severance pay plan, an employee is eligible for a severance 

package only “if the Employee’s employment with an Employer is terminated through no 

fault of the Employee” as the result of: (i) a permanent reduction in workforce; (ii) a 

permanent shutdown of a plant, department, or subdivision thereof; or (iii) a job 

elimination. (App. 423.)
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pay for retaliatory reasons – Stanley White,4 Tim Galloway, Karl Piergiorgi and John 

McCleary – concluded his employment with Kraft under circumstances different than 

Fenter’s. Moreover, White, Galloway, Piergiorgi and McCleary all stopped working at 

Kraft after Fenter had already retired. 

Although Fenter has identified four employees who received severance packages 

from Kraft, he has not identified any similarly situated employees who received 

severance pay upon voluntarily retiring under circumstances similar to those before us. 

Thus, Fenter cannot overcome Kraft’s reliance on its established Severance Pay Plan, and 

the District Court properly held that Kraft was entitled to summary judgment on Fenter’s 

retaliation claim arising from Kraft’s refusal to provide him with severance pay. Id.

B.

Fenter also argues that the District Court erred by denying his motion to compel as 

well as his related motion for additional discovery pursuant to Federal Rule of Civil 

Procedure 56(d). We review discovery related matters, including a district court’s denial 

of a Rule 56(d) motion, for abuse of discretion. Washington v. Hovensa LLC, 652 F.3d 

 

4 Stanley White is not a proper comparator for demonstrating that Fenter was denied 

a severance package based on racially motivated retaliation because, in addition to 

retiring after Fenter, Mr. White is an African American. Simpson v. Kay Jewelers, Div. 

of Sterling, Inc., 142 F.3d 639, 645 (3d Cir. 1998) (noting that to overcome the 

employer’s legitimate, non-retaliatory reason for its actions, a plaintiff may show that 

“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.”) (emphasis added)).
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340, 348 n.6 (3d Cir. 2011); Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 324 n.6 (3d 

Cir. 2005). 

Upon review of the record, we conclude that the District Court correctly held that 

Kraft adequately responded to Fenter’s interrogatories and document requests. 

Accordingly, the Court did not err in denying Fenter’s motion to compel Kraft to produce 

certain documents or in refusing to compel Kraft to respond further to Fenter’s 

interrogatories. 

Nor did the District Court err in denying Fenter’s request for an extension of time 

to conduct additional discovery. If a party opposing summary judgment “believes that 

s/he needs additional time for discovery, Rule 56(d) specifies the procedure to be 

followed.” Pa. Dep’t. of Pub. Welfare v. Sebelius, 674 F.3d 139, 157 (3d Cir. 2012)

(internal quotation marks and alterations omitted). We have interpreted the rule as 

requiring that “a party seeking further discovery in response to a summary judgment 

motion submit an affidavit specifying, for example, what particular information is sought; 

how, if uncovered, it would preclude summary judgment; and why it has not previously 

been obtained.” Dowling v. City of Phila., 855 F.2d 136, 139-40 (3d Cir. 1988)

(addressing Rule 56(f), the predecessor to Rule 56(d)). Except in “the most exceptional 

cases, failure to comply with [Rule 56(d)] is fatal to a claim of insufficient discovery on 

appeal.” Bradley v. United States, 299 F.3d 197, 207 (3d Cir. 2002). 

Fenter’s counsel did submit an affidavit in support of Fenter’s request for 

additional discovery, but the affidavit failed to state how the sought after documents and 
14

information would have precluded summary judgment. Fenter therefore failed to comply 

with Rule 56(d), and the District Court correctly denied Fenter additional discovery. 

III.

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