NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-4070

___________

SAMUEL THOMAS PHIFER,

Appellant

v.

SEVENSON ENVIRONMENTAL SERVICES, INC.; 

DELAWARE SOLID WASTE AUTHORITY

____________________________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil Action No. 1-11-cv-00169)

District Judge: Honorable Gregory M. Sleet

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 16, 2015

Before: GREENAWAY, JR., SCIRICA and RENDELL, Circuit Judges

(Filed: July 27, 2015)

___________

OPINION*

___________

PER CURIAM

 

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

constitute binding precedent.
2

This case involves allegations brought by Samuel Phifer against his former 

employer, Sevenson Environmental Services, Inc. (“Sevenson”), a hazardous waste 

clean-up contractor.1 Sevenson entered into a contract with the Delaware Solid Waste 

Authority (“DSWA”) to construct a large expansion to DWSA’s Cherry Island Landfill 

located in New Castle County, Delaware (“the Cherry Island Landfill project”). On 

October 23, 2006, Sevenson hired Phifer as a bull-dozer operator assigned to the Cherry 

Island Landfill project at an hourly rate of $24.69. On April 27, 2007, all Sevenson 

operators at the Cherry Island Landfill project were given a pay increase to $28.11 

hourly. Phifer received that rate of pay until his first seasonal lay-off in October 21, 

2007. On March 24, 2008, Sevenson recalled Phifer from the seasonal layoff as a laborer 

at the Cherry Island Landfill project and paid him an hourly rate of $19.88. Although 

Phifer was again laid-off on November 20, 2008, he was recalled to the project as a 

laborer on December 1, 2008, and was again paid at the laborer rate. Shortly thereafter, 

on December 19, 2008, Sevenson was again laid-off. On March 11, 2009, Sevenson 

offered Phifer an opportunity to again return to the Cherry Island Landfill project as a 

laborer, but Phifer declined the offer.

Phifer, who is African-American, believed that Sevenson’s decision to re-hire him 

in March 2008 as a laborer, rather than in his previous position as a bull-dozer operator, 

was racially motivated. As a result, Phifer filed a charge of discrimination with the 

 

1 Sevenson’s work is project-based and seasonal. As a result, employees of the company 

are often hired, laid-off, and rehired over the course of a particular project.
3

Delaware Department of Labor (“DDOL”) and the Equal Employment Opportunity 

Commission (“EEOC”). He later filed another charge with the EEOC claiming that he 

was laid off in December 2008 in retaliation for his having complained to the EEOC of 

his demotion to the laborer position. Following his receipt of right-to-sue letters from the 

DDOL and EEOC, Phifer filed a complaint against Sevenson and DSWA in the District 

Court. He raised claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et 

seq., 42 U.S.C. §§ 1981 and 1985, and Delaware law.2 

Both Defendants filed motions to dismiss the complaint. In an order entered on 

March 14, 2012, the District Court dismissed all claims against DSWA.3 In that order, 

the District Court also granted in part Sevenson’s motion to dismiss, dismissing Phifer’s 

breach of contract claim as well as his claims under § 1985 and the DDEA. At the close 

of discovery, Sevenson and Phifer filed cross-motions for summary judgment. In a 

 

2 Phifer appeared to raise claims under the Delaware Wage Payment and Collection Act 

(“WPCA”), 19 Del. Code Ann. § 1101 et seq., and the Delaware Discrimination in 

Employment Act (“DDEA”). See 19 Del. Code Ann. § 710 et seq. He also presented a 

state law breach of contract claim.

3 With regard to Phifer’s claims under Title VII and the WPCA in particular, the District 

Court determined that DWSA could not be liable to Phifer under those statutes because 

he failed to set forth facts from which one could conclude that DWSA was either his 

employer or an agent of his employer. 42 U.S.C. § 2000e(b); see generally Vance v. Ball 

State Univ., 133 S. Ct. 2434, 2443 (2013) (discussing when an employer may be 

vicariously liable for an employee’s actions) (emphasis added); see also 19 Del. Code 

Ann. § 1107 (prohibiting withholding of wages by employers) (emphasis added).
4

September 5, 2014 opinion, the District Court granted judgment in favor of Sevenson on 

all the remaining claims. Phifer appeals.4 

We have reviewed the record and will affirm the District Court’s judgment. First, 

the District Court properly dismissed Phifer’s § 1985 claim as to both Defendants. To 

state a claim under § 1985(3), a plaintiff must allege: (1) a conspiracy of two or more 

persons; (2) motivated by racial or class-based discriminatory animus designed to 

deprive, directly or indirectly, any person or class of persons to the equal protection of 

the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or 

property or the deprivation of any right or privilege of a citizen of the United States. See

Brown v. Philip Morris Inc., 250 F.3d 789, 805 (3d Cir. 2001). We agree that Phifer 

failed to allege any facts whatsoever indicating that the defendants conspired to deprive 

him of any protected rights. Moreover, his complaint does not suggest that DWSA was 

even aware of the employment decisions rendered by Sevenson until well after they 

occurred.

The District Court also correctly dismissed Phifer’s breach of contract claim. 

Phifer asserted that, as a result of Sevenson’s adverse employment decisions, both 

Sevenson and the DWSA were in violation of the construction contract that they entered 

into regarding the Cherry Island Landfill project. Phifer appeared to claim that he was a 

 

4 We have jurisdiction under 28 U.S.C. § 1291, and conduct plenary review of orders 

dismissing claims under Federal Rule of Civil Procedure 12(b)(6) and granting summary 

judgment. Atkinson v. Lafayette Coll., 460 F.3d 447, 451 (3d Cir. 2006). We may 

affirm on any basis supported by the record. Brightwell v. Lehman, 637 F.3d 187, 191 
5

third-party beneficiary under that contract. “Ordinarily, a stranger to a contract acquires 

no rights thereunder.” Guardian Constr. Co. v. Tetra Tech Richardson, Inc., 583 A.2d 

1378, 1386 (Del. Super. Ct. 1990). According to Delaware law, “to qualify as a third 

party beneficiary of a contract, (a) the contracting parties must have intended that the 

third party beneficiary benefit from the contract, (b) the benefit must have been intended 

as a gift or in satisfaction of a pre-existing obligation to that person, and (c) the intent to 

benefit the third party must be a material part of the parties’ purpose in entering into the 

contract.” E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin 

Intermediaries, S.A.S., 269 F.3d 187, 196 (3d Cir. 2001). We agree that Phifer failed to 

allege facts sufficient to suggest that he was a third-party beneficiary under the contract 

between the Defendants, or that he otherwise had standing to enforce the terms of the 

contract. Dismissal was therefore appropriate.

Additionally, for the reasons stated in its dismissal order, the District Court 

properly dismissed Phifer’s Title VII and WPCA claims against DSWA. Phifer also 

failed to allege any facts suggesting that DSWA violated any of the rights protected by

§ 1981, which forbids discrimination on the basis of race in the making of public and 

private contracts. See St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609 (1987).5

 

(3d Cir. 2011).

5 The District Court determined that Phifer’s DDEA claims against both Defendants 

should be dismissed as time-barred. Having reviewed the record, it appears that 

determination may be incorrect. Nevertheless, Phifer’s DDEA claim against DSWA was 

subject to dismissal because DWSA was not Phifer’s employer and the DDEA prohibits 

unlawful employment practices by employers. See 19 Del. Code Ann. § 711 (emphasis 
6

With regard to summary judgment, we conclude that, while the factual record 

below does contain disputes over facts, none of the details in contention is “material” for 

the purposes of summary judgment because none would affect the outcome of the suit 

under governing law. See Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 667 F.3d 

408, 412 (3d Cir. 2012). At the very least, and assuming without deciding that Phifer 

established a prima facie case of discrimination, we agree with the District Court that 

Sevenson pointed to a legitimate, nondiscriminatory reason for declining to re-hire Phifer 

as an bull-dozer operator—Phifer’s poor performance evaluation following his first stint 

as an operator between October 2006 and October 2007. Phifer thereafter failed to 

adduce evidence from which a reasonable jury could conclude “that the employer’s 

proffered reasons were merely a pretext for discrimination, and not the real motivation 

for the unfavorable job action.” Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 

 

added). Phifer’s claim against Sevenson fails under the DDEA for the same reasons that 

his Title VII claims do not survive summary judgment. See 19 Del. C. § 711(a)(1) (“It 

shall be an unlawful employment practice for an employer to . . . discriminate against any 

individual with respect to compensation, terms, conditions or privileges of employment 

because of such individual’s . . . race.”). Given that we affirm on those grounds, we need 

not resolve the question whether a plaintiff may proceed under both Title VII and the 

DDEA, a question over which district courts in this Circuit have disagreed. See 19 Del. 

Code Ann. § 714(c) (“[The plaintiff] shall elect a Delaware or federal forum to prosecute 

the employment discrimination cause of action so as to avoid unnecessary costs, delays 

and duplicative litigation. A [plaintiff] is barred by this election from filing cases in both 

[the Delaware] Superior Court and the federal forum.”). Compare Brangman v. 

AstraZeneca, LP, 952 F. Supp. 2d 710, 724 (E.D. Pa. 2013) (concluding that section 

714(c) does not bar a plaintiff from bringing both Title VII and DDEA claims in federal 

court), with Daughtry v. Family Dollar Stores, Inc., 634 F. Supp. 2d 475, 483 n.13 (D. 

Del. 2009) (concluding that section 714(c) precludes a plaintiff from pursing relief under 

both Title VII and the DDEA). 
7

2003) (per curiam). The same test applies to Phifer’s retaliation and § 1981 claims, 

which also fail for the reason that Phifer was unable to adequately rebut Sevenson’s 

articulated reasons for its employment decisions. See Moore v. City of Phila., 461 F.3d 

331, 342 (3d Cir. 2006); McKenna v. Pac. Rail Serv., 32 F.3d 820, 825 n.3 (3d Cir. 

1994).6

Finally, we note that on appeal Phifer appears to take issue with the District 

Court’s disposition of various procedural rulings made by the District Court over the 

course of the litigation. We have reviewed those rulings and perceive no error on the part 

of the District Court.

Accordingly, we will affirm the District Court’s judgment.7

 

6Although the District Court did not explicitly review Phifer’s remaining WPCA claim 

against Sevenson, having reviewed the record, we agree that Phifer could not prevail on 

that claim. The statute of limitations for bringing such a claim is one year. See 10 Del. 

Code Ann. § 8111. Phifer’s WPCA claim against Sevenson accrued at the latest on 

March 11, 2009, when he refused an offer to return to work following his December 2008 

layoff. Because Phifer did not file his action in the District Court until February 2011, 

well after the statute of limitations expired, the claim is time-barred.

7 Appellant’s motion to vacate our January 7, 2015 order granting Sevenson’s motion to 

file a supplemental appendix is denied. Appellant has failed to set forth any valid reasons 

why Sevenson should not have been permitted to supplement the record on appeal.