Kimberly Brown v. J. KAZ, INC. t/d/b/a CRAFTMATIC

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2713
KIMBERLY BROWN,
Appellant
v.
J. KAZ, INC.
t/d/b/a CRAFTMATIC and CRAFTMATIC OF PITTSBURGH
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2-07-cv-00859)
District Judge: Honorable Gary L. Lancaster
Argued July 8, 2009
Before: SLOVITER, AMBRO, and JORDAN, Circuit Judges
(Filed: September 11, 2009)
Rufus A. Jennings (Argued)
Timothy M. Kolman
Timothy M. Kolman & Associates
Attorneys for Appellant

-- 1 of 20 --

2
William G. Merchant
Hilary W. Taylor (Argued)
Papernick & Gefsky
Monroeville, PA 15146
Attorneys for Appellee
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Appellant Kimberly Brown appeals the District Court’s
grant of summary judgment in favor of appellee J. Kaz, Inc.,
d/b/a Craftmatic of Pittsburgh (“Craftmatic”), on her
employment discrimination claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the Civil Rights
Act of 1866, 42 U.S.C. § 1981, and the Pennsylvania Human
Relations Act (“PHRA”), 43 Pa. Cons. Stat. §§ 951 et seq.
We will affirm the District Court’s grant of summary
judgment on Brown’s claims under Title VII and the PHRA
because, as the District Court concluded, Brown was an
independent contractor, rather than an employee, of Craftmatic
and therefore outside the protections of those statutes. In
contrast, Brown’s claim under section 1981 requires more
extended consideration, as that claim presents us with a matter of
first impression in this circuit.
I.
Craftmatic is a distributor of adjustable beds. Craftmatic
sells its products through sales representatives who visit
potential customers’ homes to demonstrate the beds and attempt
to make sales. In the summer of 2006, Brown, an African-
American female, responded to a Craftmatic advertisement
seeking sales representatives and spoke twice by telephone with
Jay Morris, Craftmatic’s recruiting manager, regarding a job.
Morris invited Brown to attend a training session at

-- 2 of 20 --

3
Craftmatic’s Pittsburgh, Pennsylvania, office in August 2006.
During these conversations, Brown, a resident of Cleveland,
Ohio, told Morris that she would take the bus to Pittsburgh
because she preferred not to drive in unfamiliar places. Morris
testified at his deposition that he was concerned about Brown’s
ability to meet the transportation requirements of the sales
representative position in light of Brown’s unwillingness to
drive to Pittsburgh, but nonetheless invited her to training
because she was well-spoken and showed enthusiasm for the
position.
Brown attended a training session, which was held from
August 8-10, 2006, with two other trainees, Ronald Gibbs and
Daryl Rinehart, neither of whom was African-American.
Brown, Gibbs and Rinehart were met at Craftmatic by Morris.
Brown contends that, during that initial meeting, Morris stated
that “I know she [Brown] is going to be a problem” and that
“She’s going to be a headache. She asks a lot of questions.”
App. at 324.
Craftmatic’s training manager, Daniel Pesta, conducted
the training session, during which the trainees were introduced to
the product they would be selling and Craftmatic’s business
practices. As part of the training, Pesta gave the trainees an
assignment to complete between the first and second days of
training and another assignment between the second and third
days; the assignments required the trainees to complete standard
sales contracts and similar activities. According to Pesta, Brown
failed to complete both assignments. However, Craftmatic’s
owner, John Girty, testified at his deposition that Pesta told him
that Brown completed her assignments; Brown also contends
that she completed her assignments. In any event, Pesta
provided Brown with a copy of Craftmatic’s “Independent
Contractor Agreement” at the end of the second day of training,
and Brown signed the agreement on the final day of training.
Later the final training day, Brown, Gibbs and Rinehart
took a break on a deck outside of Craftmatic’s office. Morris
approached them, extended his hand to all three, shook hands
with Gibbs and Rinehart, and exchanged pleasantries with them.

-- 3 of 20 --

4
However, for reasons that are unclear, Brown refused to shake
Morris’ hand.
The details of what happened next are disputed, although
it is undisputed that Brown and Morris had a heated argument.
According to Brown, after she refused to shake his hand, Morris
stated, “Well, you ain’t nothing but a black person anyway” and
“Well, you ain’t nothing but the N word.” App. at 329. Brown
states that, after she asked, “Are you calling me a nigga,” Morris
“smirked and shook his head.” App. at 329-30. Morris, on the
other hand, testified at his deposition that he told Brown that
“not shaking a man’s hand is like calling a black person a
derogatory name” and that “it’s like calling a black person the N-
word.” App. at 157-58. After this exchange, as summarized by
the District Court, “the two engaged in some discussion about
slapping or hitting people, although it is unclear, but irrelevant,
as to who initiated this topic of discussion.” App. at 4.
Brown thereafter returned to the training room. Morris
entered the room and told Brown that, if he had anything to say
about it, she would not work for Craftmatic. Morris then
reported the incident to Girty and told him that he did not want
Brown to be a sales representative. Girty told Morris that he had
used a bad choice of words. Pesta, who was not present at the
incident, also met with Girty following the incident and also
believed that Brown should not be permitted to act as a sales
representative for Craftmatic, although it is unclear whether he
so informed Girty at that meeting.
After meeting with Morris and Pesta, Girty decided that
Craftmatic would not use Brown as a sales representative. Pesta
informed Brown of Girty’s decision and provided a check from
Craftmatic to reimburse her for the expenses she incurred in
attending the training session.
Brown thereafter timely filed charges of discrimination
with the Equal Employment Opportunity Commission (“EEOC”)
and the Pennsylvania Human Relations Commission. The
EEOC issued a dismissal and notice of rights to Brown on
March 27, 2007, and Brown then filed the instant action alleging

-- 4 of 20 --

5
violations of Title VII, section 1981 and the PHRA based on
theories of disparate treatment, hostile work environment, and
retaliation. Following discovery, the District Court granted
summary judgment to Craftmatic on all of Brown’s claims.
The District Court granted summary judgment on the
claims under Title VII and the PHRA because Brown was an
independent contractor and therefore outside the protections of
those acts. On the other hand, the District Court concluded that
Brown’s claims under section 1981 were not barred because of
her independent contractor status. However, the Court held that
Brown could not prove that the termination of her contractual
relationship with Craftmatic violated section 1981 under either
the mixed-motive analysis of Price Waterhouse v. Hopkins, 490
U.S. 228 (1989), or pretext analysis of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). According to the Court,
even assuming that Brown produced direct evidence of
discriminatory racial animus that was causally related to Girty’s
decision to terminate her employment, Craftmatic was entitled to
summary judgment because it proved that the same decision
would have been made regardless of Brown’s race.
Specifically, the Court concluded that Girty had two
concerns regarding Brown that justified her termination. First,
based on the altercation with Morris, Girty was concerned that
“Brown would exhibit inappropriate behavior in a customer’s
home.” App. at 17. The Court reasoned that, “[h]ad Morris
uttered no racial slurs during the argument, but reported the
same incident to Girty, Girty would have been equally concerned
with Brown’s attitude and behavior” because sales
representatives must enter customers’ homes and “Girty would
need to be comfortable knowing that his sales representative
could remove himself or herself from the altercation swiftly and
without escalating it.” App. at 17-18. Second, Girty was
concerned “that Brown, who admittedly does not like to drive in
unfamiliar places, could not perform the job of a traveling sales
representative.” App. at 17.
Finally, the Court granted Craftmatic summary judgment
on Brown’s hostile work environment claim because Brown

-- 5 of 20 --

Brown also contends that the PHRA extends to1
independent contractors. However, the PHRA only applies to
“independent contractors who are in professions or occupations
regulated by the [Pennsylvania] Bureau of Professional and
Occupational Affairs or those who are included in the Fair Housing
Act.” Velocity Express v. Pa. Human Relations Comm’n, 853 A.2d
1182, 1186 (Pa. Commw. Ct. 2004). Brown’s position as a sales
representative at Craftmatic does not fall within these categories,
6
produced no evidence that racial discrimination was regular or
pervasive at Craftmatic and on Brown’s retaliation claim
because she had not engaged in any protected activity before her
contractual relationship with Craftmatic was terminated. Brown
timely appealed.
II.
The District Court had jurisdiction under 28 U.S.C. §
1331. This court has jurisdiction under 28 U.S.C. § 1291. “On
an appeal from a grant or denial of summary judgment, our
review is plenary and we apply the same test the district court
should have utilized initially.” Giles v. Kearney, 571 F.3d 318,
322 (3d Cir. 2009). “A court may grant summary judgment only
when the record ‘shows that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)). We must
construe the evidence in favor of the non-moving party, and
summary judgment must be denied if there exists enough
evidence “to enable a jury to reasonably find for the nonmovant
on the issue.” Id. (citation omitted).
III.
A. Title VII and PHRA Claims
Brown contends that the District Court erred in
concluding that she was an independent contractor of Craftmatic,
rather than an employee, and therefore not protected by Title VII
or the PHRA. The term “employee” is defined in Title VII as1

-- 6 of 20 --

and therefore she was entitled to the protections of the PHRA only
if she was an employee of Craftmatic. See id. at 1186 nn.7-8. We
have previously held that “[c]laims under the PHRA are interpreted
coextensively with Title VII claims,” Atkinson v. LaFayette
College, 460 F.3d 447, 454 n.6 (3d Cir. 2006), and it follows that
Brown is an employee of Craftmatic under the PHRA only if she
is one under Title VII.
Prior to Darden, this court held that a “hybrid of the2
common law ‘right to control’ standard and the ‘economic realities’
standard” applicable in cases under the Fair Labor Standards Act
governed the determination of whether an individual was an
employee or independent contractor under the Age Discrimination
in Employment Act and Title VII. E.E.O.C. v. Zippo Mfg. Co., 713
F.2d 32, 37 (3d Cir. 1983). The hybrid approach is not
significantly different than the approach adopted in Darden
because it “focuses on the employer’s right to control the employee
as the most important factor in determining employee status.” Id.
(quotation omitted); see also Frankel v. Bally, Inc., 987 F.2d 86, 90
(2d Cir. 1993) (noting that both the common law and hybrid
standards place their “greatest emphasis on the hiring party’s right
to control the manner and means by which the work is
accomplished” and that even the common law standard may
consider as relevant “an individual’s economic dependence upon
the hiring party”). Accordingly, we need not dwell on the impact
of Darden on our decision in Zippo.
7
“an individual employed by an employer.” 42 U.S.C. § 2000e(f).
In Nationwide Mutual Insurance Co. v. Darden, a case arising
under the Employee Retirement Income Security Act, the
Supreme Court construed an identical provision to incorporate
traditional agency law principles. 503 U.S. 318, 323 (1992); see
also Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 211-12
(1997) (citing favorably Darden in a Title VII case).2
Thus, the question of whether an individual is an
employee turns on “the hiring party’s right to control the manner
and means by which the product is accomplished.” Darden, 503
U.S. at 323 (quotation omitted). As the Court summarized in
Darden:

-- 7 of 20 --

8
Among the other factors relevant to this inquiry are
the skill required; the source of the
instrumentalities and tools; the location of the
work; the duration of the relationship between the
parties; whether the hiring party has the right to
assign additional projects to the hired party; the
extent of the hired party’s discretion over when
and how long to work; the method of payment; the
hired party’s role in hiring and paying assistants;
whether the work is part of the regular business of
the hiring party; whether the hiring party is in
business; the provision of employee benefits; and
the tax treatment of the hired party.
Id. at 323-24 (quotation omitted).
Brown contends that a number of these factors suggests
that she was an employee of Craftmatic. However, we conclude
that the District Court correctly determined that Brown was an
independent contractor, not an employee. Although Brown
notes that Craftmatic’s standard practice was to assign
appointments to its sales representatives, such representatives
could also schedule their own appointments. Brown also notes
that Craftmatic made recommendations to its sales
representatives regarding appropriate statements to prospective
customers, but Craftmatic merely barred its representatives from
making false or misleading statements. Otherwise, Craftmatic
provided only recommendations regarding how the sales process
should proceed and not “a canned script.” App. at 373. We
agree with the District Court that these controls were “the
minimum that a corporation needs to maintain the quality of its
product and services, and consistency in its business practices,”
and therefore should not be sufficient to transform Brown into
an employee. App. at 13.
Moreover, the Darden factors in their totality suggest that
Brown was not an employee of Craftmatic. Brown had to
provide her own equipment for sales appointments (except for a
massage demonstration tool and a DVD for which she was
required to pay a deposit), her own office supplies, and her own

-- 8 of 20 --

9
means of transportation to appointments. Craftmatic provided
Brown with no office space and paid her on a commission basis
only. Brown was also required to pay for her own expenses,
including liability insurance, and was responsible for payment of
all taxes arising from her work. Brown was permitted to
negotiate price on her sales (within certain limits) and to solicit
customers on her own. Finally, Craftmatic could only assign
Brown sales appointments and no other work.
Our conclusion that Brown was not an employee of
Craftmatic is reinforced by the terms of the parties’
“Independent Contractor Agreement,” which clearly provided
that the sales representative was an independent contractor.
“The agreement, while not dispositive of the plaintiff’s
employment status, is strong evidence that she was an
independent contractor.” Holtzman v. World Book Co., Inc., 174
F. Supp. 2d 251, 256 (E.D. Pa. 2001); see also Adock v. Chrysler
Corp., 166 F.3d 1290, 1293 (9th Cir. 1999).
In sum, Brown was not an employee of Craftmatic for
purposes of Title VII or the PHRA. Therefore, her termination
did not fall within the protections of either statute.
B. Section 1981 Claims
At the threshold, we must determine whether Brown’s
claims pursuant to section 1981, like her claims under Title VII
and the PHRA, are barred because of her status as an
independent contractor. Although we have not previously
decided the issue, at least three of our sister courts of appeals
have held that an independent contractor may bring a
discrimination claim under section 1981 against the entity with
which she contracted. See Taylor v. ADS, Inc., 327 F.3d 579,
581 (7th Cir. 2003); Webster v. Fulton County, 283 F.3d 1254,
1257 (11th Cir. 2002); Danco, Inc. v. Wal-Mart Stores, Inc., 178
F.3d 8, 13-14 (1st Cir. 1999).
The text of section 1981 provides that “all persons . . .
shall have the same right . . . to make and enforce contracts . . .
as is enjoyed by white citizens.” 42 U.S.C. § 1981(a) (emphasis

-- 9 of 20 --

Further, the phrase “make and enforce contracts” is3
broadly defined to include “the making, performance, modification,
and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.”
42 U.S.C. § 1981(b). Appellant correctly notes that she is
protected by § 1981 despite the fact that she had never actually
begun work. See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470,
476 (2006).
Brown also brought claims based on hostile work4
environment and retaliation theories. However, we agree with the
District Court that Craftmatic was entitled to summary judgment on
both claims. As to her hostile work environment claim, Brown
simply failed to provide any evidence of “harassment . . . so severe
or pervasive that it alter[ed] the conditions of [her] employment
and create[d] an abusive work environment.” Weston v.
Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001). Similarly, as to
her retaliation claim, Brown failed to adduce any evidence that she
engaged in statutorily protected activity. See Moore v. City of
Phila., 461 F.3d 331, 340-41 (3d Cir. 2006).
10
added). Thus, section 1981 “does not limit itself, or even refer,3
to employment contracts but embraces all contracts and therefore
includes contracts by which a[n] . . . independent contractor . . .
provides service to another.” Danco, 178 F.3d at 14. We thus
agree with the decisions that hold that an independent contractor
may bring a cause of action under section 1981 for
discrimination occurring within the scope of the independent
contractor relationship.
Turning to the merits of Brown’s section 1981 claims, we
have previously held that the substantive elements of a claim
under section 1981 are generally identical to the elements of an
employment discrimination claim under Title VII. See Schurr v.
Resorts Int’l Hotel, Inc., 196 F.3d 486, 499 (3d Cir. 1999).
Here, Brown’s primary claim is that Craftmatic’s decision to
terminate her independent contractor status resulted from a
racially discriminatory motive and therefore was improper under
either the Price Waterhouse mixed-motives analysis or the
McDonnell Douglas pretext analysis. The District Court4

-- 10 of 20 --

Two events following the Supreme Court’s decision in5
Price Waterhouse complicate the application of that decision to this
case. First, Congress passed the Civil Rights Act of 1991 in
response to, among other cases, Price Waterhouse, and thereby
amended Title VII to set forth standards applicable to mixed-
motive cases under Title VII. Specifically, the amendments to Title
VII made clear that an “unlawful employment practice is
established when the complaining party demonstrates that race
. . . was a motivating factor for any employment practice,” 42
U.S.C. § 2000e-2(m), and that an employer-defendant has a partial
affirmative defense that limits the remedies available to the
plaintiff if the defendant can show that it “would have taken the
same action in the absence of the impermissible motivating factor.”
42 U.S.C. § 2000e-5(g)(2)(B). However, although the Civil Rights
Act of 1991 amended section 1981 in other ways, it did not make
the mixed-motive amendments described above applicable to
section 1981 actions. Therefore, Price Waterhouse, and not the
1991 amendments to Title VII, controls the instant case, and
Craftmatic has a complete defense to liability if it would have made
the same decision without consideration of Brown’s race. See
Mabra v. United Food & Commercial Workers Local Union No.
11
rejected Brown’s claims under both theories because, even
assuming that Brown produced direct evidence of racial animus
that was causally connected to her termination, Craftmatic
demonstrated that it would have made the same decision
regardless of her race.
We focus on the mixed-motives analysis under Price
Waterhouse. This court has held that Justice O’Connor’s
concurring opinion “represents the holding of the fragmented
Court” in that case. Fakete v. Aetna, Inc., 308 F.3d 335, 337 n.2
(3d Cir. 2002). Accordingly, if the plaintiff shows “by direct
evidence that an illegitimate criterion was a substantial factor in
the [employment] decision,” the burden shifts to the defendant
“to convince the trier of fact that it is more likely than not that
the decision would have been the same absent consideration of
the illegitimate factor.” Price Waterhouse, 490 U.S. at 276
(O’Connor, J., concurring).5

-- 11 of 20 --

1996, 176 F.3d 1357, 1357-58 (11th Cir. 1999).
Second, prior to oral argument, we requested that the parties
address the impact, if any, of the Supreme Court’s recent decision
in Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343 (2009), on the
application of Price Waterhouse to claims under section 1981. In
their written responses and at oral argument, the parties agreed that
Gross, which rejected the application of the Price Waterhouse
framework to claims under the Age Discrimination in Employment
Act (“ADEA”), has no impact on this case. Accordingly, we need
not decide the impact, if any, of Gross on section 1981 here. We
note only that Gross focused on the statutory text of the ADEA and
concluded that Congress’ use of the phrase “because of . . . age”
meant that “the plaintiff retains the burden of persuasion to
establish that age was the ‘but-for’ cause of the employer’s adverse
action.” 129 S.Ct. at 2350-51. Section 1981, however, does not
include the “because of” language used in the ADEA. Instead,
section 1981 more broadly provides that “all persons . . . shall have
the same right . . . to make and enforce contracts . . . as is enjoyed
by white citizens.” 42 U.S.C. § 1981(a) (emphasis added). Indeed,
use of the Price Waterhouse framework makes sense in light of
section 1981’s text. If race plays any role in a challenged decision
by a defendant, the plain terms of the statutory text suggest the
plaintiff has made out a prima facie case that section 1981 was
violated because the plaintiff has not enjoyed “the same right” as
other similarly situated persons. However, if the defendant then
proves that the same decision would have been made regardless of
the plaintiff’s race, then the plaintiff has, in effect, enjoyed “the
same right” as similarly situated persons.
12
Thus, Brown must first present “direct evidence of
discrimination,” which this court has defined as “evidence
sufficient to allow the jury to find that the decision makers
placed substantial negative reliance on [the plaintiff’s race] in
reaching their decision to fire [her].” Fakete, 308 F.3d at 338.
Here, the District Court assumed that Brown had presented such
direct evidence based on the incident between Brown and
Morris.
Indeed, taking the evidence in the light must favorable to

-- 12 of 20 --

13
Brown, the record shows that after Brown refused to shake
Morris’ hand during their interaction on the third day of training,
Morris stated, “Well, you ain’t nothing but the N word,” App. at
329, and responded in the affirmative when Brown asked him if
he was calling her a “nigga,” App. at 329-30. These were not
simply “stray remarks.” Price Waterhouse, 490 U.S. at 277
(O’Connor, J., concurring). Within minutes of the incident,
Morris, who was the recruiting manager for Craftmatic, told
Brown that if he had any say in the matter she would not be
permitted to work for Craftmatic and reported the incident to
Girty, Craftmatic’s owner. Girty then decided, upon Morris’
recommendation, to terminate Craftmatic’s contractual
relationship with Brown without ever speaking to Brown or to
the other trainees who were present during the incident. As we
have explained, “one form of evidence sufficient to shift the
burden of persuasion under Price Waterhouse is statements of a
person involved in the decisionmaking process that reflect a
discriminatory or retaliatory animus of the type complained of in
the suit, even if the statements are not made at the same time as
the adverse employment decision, and thus constitute only
circumstantial evidence that an impermissible motive
substantially motivated the decision.” Fakete, 308 F.3d at 339.
Thus, Craftmatic was entitled to summary judgment only
if it proved “that if [race] had not been part of the process, its
[termination] decision concerning [Brown’s contract] would
nonetheless have been the same.” Price Waterhouse, 490 U.S. at
279 (O’Connor, J., concurring). Significantly, “proving that the
same decision would have been justified . . . is not the same as
proving that the same decision would have been made.” Id. at
252.
The District Court concluded that Craftmatic satisfied its
burden, but several elements of the Court’s reasoning are
problematic. First, it noted that Girty, the ultimate
decisionmaker regarding Brown’s termination, decided to
terminate her contract after speaking to Pesta, Craftmatic’s
training manager, and that Pesta, “who is alleged to have no
racial animus against Brown, . . . agreed that Brown should not
be permitted to act as a sales representative.” App. at 18.

-- 13 of 20 --

14
However, in his deposition, Girty stated that Pesta did not
provide him with any information that led to his decision to
terminate Brown’s contract. Thus, Craftmatic cannot rely on
Pesta’s views regarding the advisability of retaining Brown as a
sales representative as evidence that Girty would have made the
same decision regardless of Brown’s race.
Next, the District Court noted that Girty was concerned
“that Brown, who admittedly does not like to drive in unfamiliar
places, could not perform the job of a traveling sales
representative.” App. at 17. There are several problems with
Craftmatic’s reliance on this evidence as proof that Girty would
have made the same decision regardless of Brown’s race. Most
importantly, Morris and Pesta were aware that Brown did not
like to drive in unfamiliar places prior to the incident between
Morris and Brown. Indeed, Morris was made aware of Brown’s
driving preferences during their initial phone conversation but
still invited Brown to attend the training sessions. Similarly,
Pesta, despite his knowledge of her driving preferences, entered
into the Independent Contractor Agreement with Brown on
behalf of Craftmatic. Indeed, Pesta testified at his deposition
that the “fact that [Brown] came in on a bus in and of itself
didn’t have any bearing” on whether Brown was a good sales
representative candidate and that Brown informed him that she
had a car. App. at 378-79. Thus, a reasonable jury could infer
that neither Morris nor Pesta would have recommended
termination of Brown’s contract to Girty because of her
preference against driving in unfamiliar places. Their conduct
prior to the incident suggests that they believed that Brown could
serve as a sales representative notwithstanding that preference.
The District Court also concluded that, “[h]ad Morris
uttered no racial slurs during the argument, but reported the
same incident to Girty, Girty would have been equally concerned
with Brown’s attitude and behavior.” App. at 17. However, a
fact finder could view the significance of Morris’ comments as
evidence that Morris’ recommendation to Girty that Brown’s
contract be terminated was motivated by racial animus. Thus, as
Brown argues, the question is “not whether the same decision
would have been made had Morris not made the comments to

-- 14 of 20 --

Brown did refuse to shake Morris’ hand before Morris6
made the improper statements, but the District Court did not
conclude that Girty would have terminated her contract based on
that refusal in and of itself. Girty stated at his deposition that his
concern was that Brown’s “behavior as it was described to me that
day . . . would have ever been presented to one of our customers.”
App. at 362. This testimony does not compel the inference that
Girty would have terminated Brown’s contract simply on the basis
of her refusal to shake Morris’ hand.
15
[Brown,] but rather, would the same decision have been made if
[Brown’s] race was taken out of the equation.” Appellant’s Br.
at 38.
Indeed, the District Court essentially concluded that
Craftmatic was entitled to terminate Brown’s contract because,
following what were at the very least racially insensitive
remarks, she engaged in a heated verbal altercation with Morris.
Although the District Court was surely correct that Girty “would
be justifiably concerned that one of [his sales representatives]
would participate in a heated verbal exchange” with a customer,
a fact finder may conclude that the incident between Morris and
Brown could not legitimately form the basis for such a concern
given Morris’ discriminatory comments. Nothing in the record
suggests that Brown would have conducted herself as she did but
for Morris’ comments.6
Finally, although the District Court did not rely on this
ground, Craftmatic contends that we may affirm the summary
judgment order because Pesta recommended to Girty that
Brown’s contract be terminated in light of her failure to
complete her training assignments. However, as noted above,
Girty stated at his deposition that Pesta did not give him any
information on which he based the decision to terminate
Brown’s contract, but rather that he (Girty) made the decision
based entirely on his discussion with Morris. Indeed, Girty
further stated that Pesta later told him that Brown had completed
her assignments and that he did not have any problems with her
work. Thus, Craftmatic cannot rely on this evidence to

-- 15 of 20 --

In light of our decision to reverse the District Court’s7
summary-judgment order based on the Price Waterhouse analysis,
we need not separately analyze Brown’s claim pursuant to the
McDonnell Douglas pretext analysis. Given our rejection of the
District Court’s conclusion that Craftmatic proved, as a matter of
law, that it would have terminated Brown’s contract regardless of
her race, Brown should be able to pursue both theories on remand.
16
demonstrate it would have made the decision to terminate
Brown’s contract regardless of her race.
It is important that we emphasize that we are not holding
that Brown has proven her case of racial discrimination. What
she has shown is that there are disputed facts and inferences on
issues material to the disposition. We conclude that the District
Court erred in granting Craftmatic summary judgment on
Brown’s section 1981 claim that her termination was motivated
by racial animus because there remain questions for a jury
regarding whether Craftmatic would have terminated Brown’s
contract absent consideration of her race. We will therefore7
reverse the District Court’s grant of summary judgment as to the
section 1981 claim and remand for further proceedings.
IV.
For the above-stated reasons, we will affirm the District
Court’s summary- judgment order as to all of Brown’s claims
under Title VII and the PHRA as well as her section 1981 claims
for a hostile work environment and retaliation. We will reverse
the District Court’s summary-judgment order as to Brown’s
claim under section 1981 that Craftmatic’s termination of her
contract was motivated by impermissible racial animus.

-- 16 of 20 --

17
Kimberly Brown v. J Kaz, Inc., et al., No. 08-2713
JORDAN, Circuit Judge, concurring.
I concur in the judgment in this case and am almost
entirely in agreement with my colleagues in the Majority, but I
write separately to express my view that, contrary to dicta in
footnote five of the Majority Opinion, the Supreme Court’s
decision in Gross v. F.B.L. Financial Services, 129 S.Ct. 2343
(2009), may well have an impact on our precedent concerning
the analytical approach to be taken in employment
discrimination cases under § 1981. While I cannot say with
certainty, particularly when the parties have not joined the issue,
that the analysis in Gross does have implications for § 1981
cases, I am not as sure as the Majority appears to be that it does
not.
In Gross, a case concerning the Age Discrimination in
Employment Act (“ADEA”), the Supreme Court bypassed the
issue on which it had originally granted certiorari, i.e., “whether
a plaintiff must ‘present direct evidence of discrimination in
order to obtain a mixed-motive instruction in a non-Title VII
discrimination case[,]’” id. at 2348 (quoting petition for
certiorari), and went to the more fundamental issue of “whether
the burden of persuasion ever shifts to the party defending an
alleged mixed-motives discrimination claim brought under the
ADEA.” Id. The Court decided that the burden-shifting
framework that had developed in Title VII cases under Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), is not applicable in
ADEA cases, despite years of lower court precedent to the
contrary, e.g., King v. United States, 553 F.3d 1156, 1160 (8th
Cir. 2009) (“Under the ADEA, employers are forbidden from
taking adverse employment actions against employees because
of their age.... Where the plaintiff presents direct evidence of
discrimination, the court analyzes her claim under the mixed-
motives framework established in Price Waterhouse v. Hopkins
... .”); Machinchick v. PB Power, Inc., 398 F.3d 345 (5th Cir.
2005) (Plaintiffs proceeding under the ADEA “presenting direct
evidence of age discrimination may proceed under the ‘mixed-
motive’ analysis set forth in Price Waterhouse v. Hopkins.”);
E.E.O.C. v. Warfield-Rohr Casket Co., Inc., 364 F.3d 160, 164

-- 17 of 20 --

18
n.2 (4th Cir. 2004) (noting that, following the amendment of
Title VII, “ADEA mixed-motive cases remain subject to the
burden-shifting rules of Price Waterhouse.” (citation omitted));
Vesprini v. Shaw Contract Flooring Services, Inc., 315 F.3d 37,
40-41 (1st Cir. 2002) (applying Price Waterhouse to ADEA
claim).
Laying special emphasis on avoiding assumptions in
statutory interpretation, the Supreme Court said that it had to be
“careful not to apply rules applicable under one statute to a
different statute without careful and critical examination.”
Gross, 129 S.Ct. at 2349 (quoting Federal Express Corp. v.
Holowecki, 522 U.S. ___, 128 S.Ct. 1147, 1153 (2008)). Then,
looking to the language of the ADEA, it determined that, since
the statute says “[i]t shall be unlawful ... to fail or refuse to hire
or to discharge any individual or otherwise discriminate ...
because of such individual’s age[,]” 29 U.S.C. § 623(a)(1), and
since “[t]he words ‘because of’ mean ‘by reason of: on account
of[,]’” Gross, 129 S.Ct at 2350 (quoting 1 Webster’s Third New
International Dictionary 194 (1966)), the plain meaning of the
ADEA’s statutory text requires a pure “but for” causation
standard, with the plaintiff bearing the burden of proving by a
preponderance of the evidence that, but for the defendant-
employer’s unlawful motive, the complained-of employment
action would not have occurred. Id. at 2351. That straight-
forward allocation of the burden of proof is in keeping with “the
ordinary default rule” that, when a statute is silent about the
burden of proof, “plaintiffs bear the risk of failing to prove their
claims.” Id. (internal quotation and citations omitted).
In the present case, the Majority concludes that, despite
the foregoing instruction from Gross, Title VII-style burden
shifting naturally controls in § 1981 cases. As the Majority sees
it, because § 1981 does not contain the same “because of” clause
found in the ADEA, Gross is simply inapposite. There is an
irony here. While recognizing a textual distinction between the
ADEA and § 1981, the Majority’s approach ignores the textual
distinctions between Title VII and § 1981. Moreover, it ignores
the fundamental instruction in Gross that analytical constructs
are not to be simply transposed from one statute to another

-- 18 of 20 --

The 1991 Civil Rights Act amended Title VII to allow for8
mixed-motive claims where a plaintiff demonstrates that race was
“a motivating factor” for the employer’s challenged action. 42
U.S.C. § 2000e-2(m). No analogous amendment was made to
section 1981. Rather than viewing the lack of Congressional action
as an oversight, Gross instructs that we should regard Congress’s
decision to amend one statutory provision without amending a
separate provision as deliberate. Gross, 129 S.Ct. at 2349 (“We
cannot ignore Congress’ decision to amend Title VII’s relevant
provisions but not make similar changes to the ADEA. When
Congress amends one statutory provision but not another, it is
presumed to have acted intentionally.”); cf. Glanzman v.
Metropolitan Mgmt. Corp., 391 F.3d 506, 512 n.3 (3d Cir. 2004)
(concluding that “the Civil Rights Act of 1991 does not apply to
ADEA cases”). Much as the decision not to amend the ADEA
under the Civil Rights Act of 1991 was considered instructive in
Gross, it has been seen to be so with respect to § 1981. See Mabra
v. United Food & Commercial Workers Local Union No. 1996, 176
F.3d 1357, 1358 (11th Cir. 1999) (“[T]he 1991 mixed-motive
amendments to Title VII do not apply to § 1981 claims.”).
Beyond its statutory analysis of the ADEA and the9
implications that may carry for § 1981 cases, the Court also raised
questions about burden-shifting in general, saying “[w]hatever the
deficiencies of Price Waterhouse in retrospect, it has become
evident in the years since that case was decided that its burden-
19
without a thorough and thoughtful analysis. Even when there
has been such analysis, later arising Supreme Court precedent
may require reevaluation.
It is true, of course, that we are bound by our own
precedent and, as the Majority rightly recognizes, our prior
opinions indicate that § 1981 claims must be analyzed under the
same framework as Title VII claims were under Price
Waterhouse before the 1991 amendments to Title VII. Maj. Op.8
at 10 (citing Shurr v. Resorts Int’l Hotel, Inc., 196 F.3d 486, 499
(3d Cir. 1999)). Nevertheless, it seems quite possible that, given
the broad language chosen by the Supreme Court in Gross, a
critical re-examination of our precedent may be in order. I do9

-- 19 of 20 --

shifting framework is difficult to apply.” Gross, 129 S.Ct. at 2352.
20
not presume to say how any such re-examination may turn out. I
only note that, though my colleagues are untroubled by § 1981’s
lack of a mixed-motive provision and though they assert that the
Price Waterhouse analysis may be grafted onto § 1981 because
the “plain language of the statutory text suggests” as much (Maj.
Op. at n.5), I am less able to perceive the suggestion they see or
to accept that it trumps what the statute actually says.
Since the impact of Gross on our § 1981 precedents has
not been tested by the adversarial process and we are thus
without a proper basis for considering how, if at all, a change in
the allocation of the burden of proof might affect this case, I am
left to agree with the Majority that, consistent with the Price
Waterhouse standard, Brown has presented direct evidence of
discrimination and, under a mixed-motive analysis, has raised an
issue that must be considered by a jury. In short, because Brown
has raised a triable issue of fact as to whether Craftmatic’s
decision to terminate her was tainted by racial animus, the
burden will be on Craftmatic to demonstrate to a jury that it
would have made the same employment decision irrespective of
Brown’s race.

-- 20 of 20 --