Johnson v. Ballys Atl City , 147 F. App'x 284 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
9-7-2005
Johnson v. Ballys Atl City
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1180
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-1180
DANIEL JOHNSON,
Appellant
v.
BALLY'S ATLANTIC CITY
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(Civ. No. 03-cv-3126)
District Judge: Honorable Freda L. Wolfson
_______________________________________
Submitted Under Third Circuit LAR.34.1(a)
September 2, 2005
BEFORE: VAN ANTWERPEN, GREENBERG and NYGAARD, CIRCUIT JUDGES
(Filed: September 7, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Daniel Johnson filed this employment discrimination suit pro se under Title VII of
the Civil Rights Act of 1964, against his former employer, Bally’s Atlantic City
(“Bally’s”).1 Johnson, who is African-American, was employed as a part-time dealer in
one of Bally’s’ casinos. Johnson alleges that he was regularly subjected to racist
comments by casino customers using the racial slur “monkey” in reference to him and
shouting phrases such as “Come on, monkey,” “You, monkey,” and “Big monkey,” while
they gambled at his table. Johnson asserts that, although he complained, Bally’s failed to
take remedial action and his supervisors intentionally assigned him to tables with verbally
abusive customers. Johnson also alleges that he was physically harassed by Bally’s staff,
who touched him without his permission and directed customers and cleaning staff to
block his path and bump into him. Johnson asserts that these conditions caused him
distress and that he was discharged in retaliation for complaining. Johnson seeks
reinstatement, back pay, and damages.
In its motion for summary judgment, Bally’s argued that Johnson failed to
establish a prima facie claim under the framework established by McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Bally’s also asserted that Johnson was discharged
for misconduct, not in retaliation. Johnson filed a letter motion responding to Bally’s’
summary judgment motion, to which he attached a number of supporting documents. The
District Court granted Bally’s’ motion. Johnson appeals the District Court’s order, again
proceeding pro se.
The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
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As the parties are familiar with the facts, we recite them here only as necessary to
our discussion.
pursuant to 28 U.S.C. § 1291. We review the District Court’s grant of summary judgment
de novo and apply the same test that the District Court should have used. See Goodman
v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976). The party moving for
summary judgment under Federal Rule of Civil Procedure 56(c) bears the burden of
identifying the portions of the record which it believes “demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A
factual dispute is “material” if it might affect the outcome of the suit under the applicable
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If there is
any evidence in the record from any source from which a reasonable inference may be
drawn in favor of the nonmoving party, the moving party is not entitled to summary
judgment. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir. 1996)
(internal citations omitted).
We must read Johnson’s pro se pleadings liberally and apply the correct law
regardless of whether he has mentioned it by name. See Holley v. Dep’t of Veteran
Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999). Bally’s argues that Johnson fails to make
out a prima facie case of discrimination under McDonnell Douglas. Bally’s misperceives
the nature of Johnson’s first claim, which is a hostile work environment claim. See
Meritor Savings Bank v. Vinson, 477 U.S. 57, 64 (1986). In order to establish a hostile
work environment claim based on racial discrimination, a plaintiff must show that (1) he
suffered intentional discrimination because of race, (2) the discrimination was pervasive
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and regular, (3) the discrimination detrimentally affected him, (4) the discrimination
would detrimentally affect a reasonable person of the same race in that position, and (5)
the existence of respondeat superior liability. Aman at 1081 (internal citations omitted).
An employer may be liable under Title VII for the harassing conduct of third parties if the
employer was aware of the conduct and failed to take reasonable remedial action in
response. See Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073-74 (10 th Cir. 1998); cf.
Weston v. Pennsylvania, 251 F.3d 420, 427-28 (3d Cir. 2001).
In his summary judgment response, Johnson provided copies of complaints he sent
to Bally’s’ Labor Relations Department, sick call slips, and a memorandum from his floor
manager describing two incidents of unwanted touching. Bally’s neither filed a reply to
Johnson’s response to address this evidence nor addressed Johnson’s hostile environment
claim in any of its pleadings. Bally’s thus failed to show an absence of material fact as to
the hostile environment claim and was therefore not entitled to summary judgment on this
claim. See Celotex at 323.
Johnson’s second claim is that he was discharged in retaliation for complaining
about the hostile work environment. In order to state a claim of retaliatory discharge,
Johnson must show that (1) he engaged in a protected activity; (2) he was discharged
subsequent to or contemporaneously with such activity; and (3) a causal link exists
between the protected activity and the discharge. See Aman at 1085 (citing Jalil v. Avdel
Corp., 873 F.2d 701, 708 (3d Cir. 1989)). The parties do not dispute that Johnson
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engaged in protected activity or that he was subsequently discharged. Bally’s argues that
Johnson cannot establish a causal link because he was discharged for making threatening
remarks to Frank Campbell, a fellow employee. Bally’s submitted written statements
from Campbell, as well as Sonia Reyes and H. Yacaub (Bally’s employees and witnesses
to the incident between Johnson and Campbell) in support.
Johnson does not dispute that he spoke with Campbell. He argues, however, that
his remarks were not threatening and that the misconduct charge is pretextual. In his
summary judgment response, Johnson submitted copies of the same witness statements
supplied by Bally’s. Johnson argues that Campbell’s statement is consistent with his own
version of events – that Johnson merely told Campbell that he should not call him names
while he is working and should do so only “outside” of work. Johnson contends that
Campbell’s notation that he had felt threatened was added after Johnson was terminated
and that Reyes’ and Yacaub’s statements inaccurately twist his use of the word “outside”
and are inconsistent with Campbell’s statement. Johnson also points out that none of the
witnesses’ statements are sworn and that Reyes’ statement is dated two days after
Johnson was terminated. Again, as Bally’s did not file a reply to Johnson’s response, it
did not address Johnson’s evidence or arguments. In addition to considering temporal
proximity, the District Court should have considered Johnson’s circumstantial evidence of
pretext in evaluating his retaliation claim. See Jalil at 707.
For the foregoing reasons we will vacate the District Court’s order granting
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summary judgment to Bally’s and will remand for further proceedings. If the District
Court determines on remand that the issues are sufficiently complex or involve credibility
determinations, the court may wish to consider appointing counsel under 28 U.S.C. §
1915(e). See Tabron v. Grace, 6 F.3d 147, 156-57 (3d Cir. 1993).
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