Canada v. Samuel Grossi & Sons, Inc.

49 F.4th 340

Joseph CANADA, Appellant

v.SAMUEL GROSSI & SONS, INC.

No. 20-2747

United States Court of Appeals, Third Circuit.

Argued on May 27, 2021

Opinion filed: September 15, 2022

Timothy S. Seiler (Argued), Karpf Karpf & Cerutti, 3331 Street Road, Suite 128, Two Greenwood Square, Bensalem, PA 19020, Counsel for Appellant

Brad M. Kushner (Argued), Stevens & Lee, 1500 Market Street, Centre Square, East Tower, Suite 1800, Philadelphia, PA 19102, Counsel for Appellee

Before: McKEE, RESTREPO, and FUENTES, Circuit Judges

OPINION OF THE COURT

McKEE, Circuit Judge

Joseph Canada appeals the District Court's dismissal of his retaliation claims against Samuel Grossi and Sons, Inc. ("Grossi"), his former employer. The claims were brought under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 1981, the Americans with Disabilities Act ("ADA"), and the Family Medical Leave Act ("FMLA"). Although Grossi argued that it fired Canada for misconduct that was discovered during a search of his cellphone, Canada claims Grossi's true motive for firing him was retaliation for actions that were protected under the aforementioned statutes. For the reasons that follow, we will reverse the District Court's grant of summary judgment to Grossi on Canada's retaliation claims arising from his final termination and remand for further proceedings consistent with this opinion.

I.

Canada, a Black man, worked for Grossi, a steel producer, for 10 years.¹ Canada suffered from "serious back problems," including herniated discs and arthritis.² These back problems formed the basis of the disability discrimination claims outlined in his original complaint. Canada claims that throughout his tenure, Grossi management prevented him from accessing forms pertaining to the FMLA and harassed him when he tried to use FMLA leave for his back problems.³ Canada eventually obtained FMLA forms on his own. Thereafter, he would notify Grossi management that he was claiming FMLA leave during his absences from work. Elena Osorio, Grossi's director of human resources, testified that she never approved FMLA leave for Canada, but that Canada "took FMLA how he wanted,"⁴ and she "let [Canada] take his FMLA" leave, and did not assess any attendance points against him for doing so.⁵

Occasionally, when demand for Grossi's products was low, Grossi ordered temporary layoffs. The layoffs, governed by a Collective Bargaining Agreement ("CBA") between Grossi and a labor union, occurred in order and in preference of seniority.⁶ On one such occasion, Canada was laid off, but only for a day.⁷ He promptly returned to work with the same pay and benefits he enjoyed prior to his layoff.⁸

In March 2019, the same month as Canada's one-day layoff, Canada "filed a charge ... with the EEOC ... outlining the discrimination and retaliation he [claimed he] had been experiencing."⁹ A month later, in April, "[d]ue to the [alleged] continued discriminatory and retaliatory treatment from ... management," Canada filed the first complaint in the District Court, alleging race discrimination, retaliation, and a hostile work environment under Title VII, § 1981, the ADA, and the FMLA.¹⁰ After filing his lawsuit against Grossi, John Grossi, one of the company's owners, approached him and threatened that if he did not drop the lawsuit, "I'll [ ] just have other African-American employees say the opposite of what you're saying."¹¹ Canada was terminated a month later, in July 2019.

Grossi based the termination on text messages that management found on Canada's cellphone. The incident that led to the discovery of these text messages is at the heart of this appeal. Canada testified that he used a locker on the shop floor at Grossi to store his personal items, including his tools, clothes, and cellphone, and that he secured the locker with his personal lock, not a work-issued lock. According to Canada, "every operator," such as himself, "had their own locker," either in the locker room or shop floor, for personal storage.¹² This was a mutually-respected arrangement, Canada said, among the employees and the company, and that his locker was no exception.¹³ Moreover, Canada explained that because Grossi did not supply tools to its employees, they were required to bring their own. "That's why," Canada emphasized, it was necessary that operators "got their own lockers" for safekeeping of their belongings.¹⁴ Grossi, on the other hand, alleges that personal lockers were located elsewhere, and that Canada was using a locker on the shop floor which was designated as a company tool locker.

While Canada was on vacation in July, Grossi cut the padlock off of his locker and searched it. Grossi claimed that the lockers on the shop floor needed to be moved that day because they were blocking a surveillance camera. Despite using a forklift to move the lockers, Grossi alleged that all of the contents of the lockers had to be emptied before moving them. Because Canada was not at work, a Grossi employee cut the lock on his locker and removed its contents, including Canada's personal items and his cellphone. Osorio saw the cellphone and testified that she believed that the phone may have been a company phone "[b]ecause it's a Samsung" and Grossi had issued other employees Samsung cellphones.¹⁵ According to Osorio, she guessed the phone's password on her first try. Later that day, she searched the phone to "find out if it was a company phone."¹⁶

In her review of the text messages, Osorio found messages from more than a year earlier in which Canada appeared to have solicited sex from prostitutes. In comparing the time records of his text messages to his work hours, Osorio and John Grossi "determined [in their opinion] that he had been soliciting prostitutes while at work and clocked in."¹⁷ Concluding that solicitation of prostitutes during company time violated Grossi's Employee Conduct and Disciplinary Action Policy, Grossi immediately fired Canada. That policy forbids "[u]nlawful conduct which adversely affects the employee's relationship on his/her job, fellow employees, supervisor and/or damages the Company's property, reputation or goodwill in the community" and "[i]mmoral or indecent conduct."¹⁸

Canada, however, claimed that he was not soliciting prostitutes, never met with any of the women, and the texting was simply "dumb entertainment."¹⁹ After being terminated, Canada amended his previously filed complaint to allege that his termination was retaliation for his complaints of race and disability discrimination.

The District Court granted summary judgment to Grossi on all of Canada's claims. In addressing Canada's discrimination claims, it stated: Canada "argues that defendant's reason for terminating his employment was pretextual because defendant's explanation for entering the locker is " ‘unbelievable’ and that Osorio's reason for going through the phone ‘to find out if it was a company phone’ is also ‘unbelievable.’ "²⁰ The District Court concluded, "[h]owever, [that] these arguments relate to the propriety of the search of plaintiff's cellphone, not whether defendant terminated plaintiff's employment for appearing to solicit prostitutes while clocked in and on company property."²¹ The District Court found that "[n]o reasonable jury could conclude that defendant's proffered nondiscriminatory and nonretaliatory reason for terminating plaintiff's employment was pretextual."²² This appeal followed.²³

II.

Although Canada makes several arguments on appeal, they all focus on his contention that the stated grounds for his termination were pretext for illegal retaliation for his complaints of race and disability discrimination. Accordingly, we need only address whether the District Court erred in granting Grossi summary judgment on Canada's claim that Grossi's professed justification for terminating him was pretext for a retaliatory motive.

"We review the grant or denial of summary judgment de novo."²⁴ Our focus is the same as the District Court: We may only affirm a grant of summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."²⁵ We "view the facts in the light most favorable to the non-moving party and [draw] all reasonable inferences in that party's favor."²⁶ "A factual dispute is material if it might affect the outcome of the suit under the governing law."²⁷ A dispute regarding a material fact is genuine only if the evidence at issue could permit a reasonable jury to decide in favor of the nonmoving party.²⁸

We only address Canada's appeal of the District Court's grant of Grossi's motion for summary judgment as to the retaliation claims under Title VII, § 1981, the ADA, and the FMLA. In granting the motion as to these claims, the District Court found that Canada failed to show that Grossi's "nonretaliatory reason [for firing him] was pretextual."²⁹ After reviewing the evidence, we conclude that the District Court erred in finding that a reasonable jury could not find Grossi's reason pretextual. We thus reverse as to the four retaliation claims and remand for further proceedings.

1. McDonnell Douglas Framework

Retaliation claims are cognizable under Title VII,³⁰ § 1981,³¹ the ADA,³² and the FMLA.³³ In McDonnell Douglas Corp. v. Green ,³⁴ the Supreme Court established the analytical framework that govern claims of allegations of retaliation for engaging in protected activity under Title VII. Therefore, Canada's retaliation claims, which rely on circumstantial evidence, are controlled by the three-step burden-shifting framework established in McDonnell Douglas .³⁵ We have also applied this framework to other retaliation claims including those in the ADA, and the FMLA.³⁶

Under the first step of that framework, a plaintiff "must establish a prima facie case by showing ‘(1) [that she engaged in] protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection...