NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 18-3302

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JAMES DURST,

 Appellant

v.

CITY OF PHILADELPHIA

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2-17-cv-02933)

District Judge: Honorable Juan R. Sanchez

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

on November 15, 2019

Before: JORDAN, SCIRICA, and RENDELL, Circuit Judges

(Filed: January 14, 2020)

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OPINION*

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 * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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SCIRICA, Circuit Judge

James Durst brought a claim for employment discrimination under Title VII of the 

Civil Rights Act of 1964 against his former employer, the City of Philadelphia, alleging 

unlawful termination because of his race. The trial court granted summary judgment in 

favor of the City. We will affirm.

I.

James Durst, a Caucasian male, worked as a code inspector for the City’s Licenses 

and Inspections Department (“L & I Department”) from September 2011 until his 

termination on April 28, 2016. The City terminated Durst after it determined he violated 

Section 10-108 of the Philadelphia Home Rule Charter, which prohibits City of 

Philadelphia employees from engaging in fraud or dishonesty. 

Although code inspectors spend most of their work day “in the field” performing 

inspections, they are required to report in person to the office at the beginning of their 

shift. Inspectors are not allowed to begin their work day in the field without first 

obtaining supervisor approval. Despite his awareness of this rule and despite prior 

discipline for failing to follow it, Durst frequently began his work day in the field without 

permission. Hours after his shift began, he often emailed his supervisor, Ela Fernandez, 

informing her he started in the field that day. After Durst continued to ignore Fernandez’s 

warnings that he needed her permission before starting in the field, Fernandez began 

forwarding his emails to her supervisor, Bernice Johnson, who served as the field 

operations manager. Around the same time, Johnson began receiving numerous 
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complaints from property owners and occupants regarding Durst’s failure to show up for 

scheduled inspections and for wrongly reporting properties as code violations. After 

Johnson performed a field investigation into Durst’s work, the City determined Durst had 

falsified multiple inspection violations, route sheets, and other City documents. 

Following a disciplinary hearing, which Durst failed to appear for, the City sent 

Durst a notice of dismissal stating that he had violated Section 10-108 of the Philadelphia 

Home Rule Charter by failing to obtain permission before starting work in the field, 

traveling outside his authorized district, falsely claiming he never received 

reimbursement for mileage or training, and falsifying City documents. Durst appealed his 

termination to the Civil Service Commission, but failed to appear for his hearing. The 

Commission determined there was just cause for Durst’s termination because the 

evidence showed he consistently falsely reported the conditions of the properties he 

allegedly inspected. Durst did not appeal the Commission’s ruling. 

Durst filed a charge with the Equal Employment Opportunity Commission on 

August 10, 2016, alleging unlawful termination on account of his race. He asserts the L & 

I Department’s non-Caucasian management—specifically his supervisor, Ela Fernandez, 

and the field operations manager, Bernice Johnson—treated him less favorably than his 

fellow inspectors. He received a notice of right to bring suit and commenced this action 

in the Eastern District of Pennsylvania. The City filed a Motion for Summary Judgment. 

The trial court granted summary judgment in favor of the City. The court found 

that Durst could not prove a prima facie case for racial discrimination. Durst failed to 

proffer any relevant comparators who were treated more favorably and merely asserted 
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his own subjective belief of discriminatory conduct, and even if Durst had set forth a 

prima facie case, the City established legitimate, non-discriminatory reasons for his 

termination that Durst was unable to rebut as pretextual. This appeal followed.1

II.

As we will explain, Durst failed to demonstrate a genuine issue of material fact.

We concur with the trial court’s assessment that the City is entitled to judgment as a 

matter of law. We evaluate Durst’s discrimination claim under the familiar three-part 

analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under 

this framework, Durst must first establish a prima facie case of discrimination. The 

burden then shifts to the City to show a legitimate, non-discriminatory reason for Durst’s 

termination. Durst must then be given an opportunity to show the City’s stated reasons 

were a pretext for discrimination. Id. at 802–03; Iadimarco v. Runyon, 190 F.3d 151, 

157–58 (3d Cir. 1999). 

To establish a prima facie case of race discrimination, Durst must show (1) he is a 

member of a protected class, (2) he is qualified for his position, (3) he suffered an adverse 

 1 The trial court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 

U.S.C. § 1291. We review a grant of summary judgment de novo, applying the same 

standard the trial court applied in determining whether summary judgment was 

appropriate. Faush v. Tuesday Morning, Inc., 808 F.3d 208, 215 (3d Cir. 2015). Summary 

judgment is proper when there is “no genuine dispute as to any material fact” and the 

moving party is “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A factual 

dispute is “genuine” if the evidence would permit a reasonable jury to find for the 

nonmoving party, and “material” if its adjudication bears on an essential element of the 

plaintiff’s claim. Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir. 2002). When ruling on 

a motion for summary judgment, the court must consider the evidence in a light most 

favorable to the nonmoving party. Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 

524, 535 (3d Cir. 2007). 
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employment action, and (4) the adverse employment action gave rise to an inference of 

unlawful discrimination.2 Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410–11 (3d Cir. 

1999). Durst presented no evidence supporting an inference that the City discriminated 

against him because of his race. 

Durst attempts to show discriminatory intent through comparator evidence—he 

asserts four non-Caucasian inspectors engaged in similar misconduct, but the City never 

investigated or disciplined them. The trial court correctly determined the comparators 

Durst offered could not be used for the purpose of demonstrating discrimination because 

they were not similarly situated. Although “similarly situated” does not mean identically 

situated, the comparator must be similar in all relevant respects. Johnson v. Kroger Co., 

319 F.3d 858, 867 (6th Cir. 2003). Relevant factors include whether the comparators had 

the same supervisor, were subject to the same standards, and had engaged in similar 

conduct. Id. Durst provides no relevant comparator evidence giving rise to an inference 

of discriminatory intent. 

Durst alleges two fellow inspectors began work in the field without permission 

and were never investigated. But the record reveals that one of these inspectors never 

started in the field and the other inspector always obtained permission before starting in 

the field. Durst further argues another inspector falsified City documents and the City 

 2 Because Durst is Caucasian, his claim is referred to as a “reverse discrimination” claim, 

which this Circuit recognizes. See Iadimarco, 190 F.3d at 158. But unlike other Circuits, 

this Circuit does not require the plaintiff to show “background circumstances” 

demonstrating the defendant is an unusual employer who discriminates against the 

majority. Id. at 160. 
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never investigated her, but he presents no evidence showing falsification. She also had a 

different supervisor. Lastly, Durst alleges the City failed to discipline an inspector who is 

a registered sex offender and inspected homes with children present. As the trial court 

properly pointed out, this inspector’s alleged misconduct is not similar to Durst’s and 

Durst merely provides his own unsubstantiated belief of misconduct. Durst does not 

provide relevant evidence permitting an inference of discriminatory intent and fails to 

make a prima facie case of race discrimination. 

Even if Durst could assert a prima facie case of race discrimination, the City 

asserted numerous legitimate, non-discriminatory reasons for terminating him. The City 

found Durst in violation of the Philadelphia Home Rule Charter for failing to obtain 

supervisor permission before starting work in the field and falsifying his inspections. 

Durst’s supervisor stated she had never received such a large number of complaints about 

a single inspector. The City’s Integrity Officer believed Durst was a “danger to the 

public” because he failed to conduct actual inspections. J.A. 556a. Moreover, the Civil 

Service Commission concluded there was sufficient evidence to show he consistently 

falsely reported property conditions. Accordingly, the City points to legitimate, nondiscriminatory reasons for terminating Durst. 

Because the City carried its burden, Durst can only survive summary judgment if 

he can prove the City’s articulated reasons were a pretext for racial discrimination. Durst 

fails to meet this burden. 

Durst attempts to prove pretext by asserting the “cat’s paw” theory, which 

provides that unlawful discrimination occurs when a nonbiased decision-maker is 
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influenced by a biased managerial employee. Jones v. Se. Pa. Transp. Auth., 796 F.3d 

323, 330 (3d Cir. 2015). Durst argues the City’s decision to terminate him was tainted by 

Fernandez and Johnson’s racial animus towards him. Durst’s argument lacks evidentiary 

support. Nothing in the record shows or implies Fernandez or Johnson exhibited racial 

animus towards Durst. 

Durst argues Fernandez showed racial animus towards him because she ignored 

his emails and allowed Christina Phillips, a non-Caucasian inspector, to start work in the 

field without permission. But the record established that Phillips always asked for 

permission before starting in the field and Fernandez sometimes denied her requests. 

Moreover, because Durst continued to start his day in the field without permission, 

despite Fernandez’s warnings, Fernandez reported up the chain-of-command by 

forwarding his emails to Johnson, her supervisor. The record is devoid of any evidence 

showing Fernandez exhibited racial animus towards Durst. 

Durst also asserts Johnson’s choice to not interview him during her investigation 

of his work was rooted in racial animus, relying on Mastro v. Potomac Electric Power 

Co., 447 F.3d 843 (D.C. Cir. 2006). Durst’s reliance on Mastro is unpersuasive because 

his case involves a largely different set of facts. In Mastro, an African-American 

supervisor terminated the Caucasian plaintiff for lying about his subordinate who did not 

show up to work because he was incarcerated. The case turned on when the plaintiff 

learned about the subordinate’s incarceration. Id. at 847–48. His termination centered 

mainly on an unsubstantiated statement made by a biased fellow employee about the 

plaintiff. Id. at 855–56. The court determined the investigation was faulty because the 
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supervisor had relied on an unconfirmed statement and never interviewed the plaintiff for 

his side of the story. Id. 

Unlike the investigation in Mastro, the City thoroughly investigated Durst’s 

misconduct after it received several outside complaints. Moreover, as the trial court 

pointed out, Durst’s own emails and Johnson’s investigation into his inspections both 

document and validate his misconduct. 

Durst also tries to establish pretext by arguing he did not engage in misconduct. 

His argument is without merit. Aside from Durst’s subjective opinion that he did not 

falsely report the conditions of the properties he allegedly inspected, the record presents 

no facts that would suggest the City’s investigation into his work and subsequent findings 

were rooted in racial animus. The City is entitled to summary judgment. 

IV.

For the foregoing reasons, we will affirm the judgment of the trial court.