Masood Ahmed v. Lowe’s Home Centers, Inc

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3422
MASOOD AHMED,
Appellant
v.
LOWE’S HOME CENTERS, INC.
Appeal from the United States District Court
for the Eastern District of Pennsylvania
No. 2-06-cv-04798
(District Judge: The Honorable Michael M. Baylson)
Before: McKEE, HARDIMAN and VAN ANTWERPEN, Circuit Judges.
Submitted pursuant to Third Circuit LAR 34.1(a)
June 11, 2009
(Opinion Filed: September 9, 2009)
OPINION
McKEE, Circuit Judge
Masood Ahmed appeals the district court’s grant of summary judgment in favor of
Lowe’s Home Centers, Inc. on Ahmed’s claims of retaliation, discrimination, hostile
work environment, and intentional infliction of emotional distress (“IIED”). For the

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reasons that follow, we will affirm.
I.
As we write primarily for the parties, who are familiar with the facts of this case,
we need not recite the factual or procedural history in detail.
We review the district court’s grant of summary judgment de novo and apply the
same test on review as the district court. See MBIA Ins. Corp. v. Royal Indem. Co., 426
F.3d 204, 209 (3d Cir. 2005). Summary judgment is appropriate where there are no
genuine issues of material fact. Fed. R. Civ. P. 56(c); see also Fasold v. Justice, 409 F.3d
178, 183 (3d Cir. 2005). Genuine issues of fact exist where “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id. (quoting Anderson v.
Liberty Lobby Inc., 477 U.S. 242, 248 (1986)). In reviewing a grant of summary
judgment, we view all facts in the light most favorable to Ahmed as the nonmoving party.
See Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 535 (3d Cir. 2007).
Ahmed argues that the district court erred in concluding that he failed to a establish
a prima facie case as to retaliatory discharge, and dismissing his retaliation claim for
failure to establish that he was the victim of a retaliatory discharge that resulted from his
complaints to the Human Resources Department about alleged unfair treatment by his
supervisor, Doug Schmidt.
To establish a prima facie case of retaliatory discharge, Ahmed must show that: (1)
he engaged in conduct protected by Title VII; (2) he was subject to an adverse

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Ahmed’s own testimony as to his previous meetings with Lowe’s Human Resources1
reveals the general, unspecific nature of his complaints: “Doug Schmidt called me a liar and
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employment action; and (3) there is a causal nexus between the protected conduct and the
adverse action. See Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 320
(3d Cir. 2008); see also Moore v. City of Phil., 461 F.3d 331, 340-41 (3d Cir. 2006). The
district court held that Ahmed failed to present evidence sufficient to raise any genuine
issue of material fact as to the first prong of his retaliatory discharge claim, i.e. whether
Ahmed’s conduct was protected under Title VII.
To qualify as protected conduct under Title VII, Ahmed must show that he made
Lowe’s aware that he felt he was being discriminated against specifically because of his
race or national origin. See Slagle v. County of Clarion, 435 F.3d 262, 268 (3d Cir. 2006)
(holding that a complaint that does not explicitly or implicitly allege that membership in a
protected class was the reason for mistreatment is too general to constitute protected
conduct under Title VII).
Ahmed contends that his complaints to the Human Resources Department of
Lowe’s should be considered a protected activity under Title VII. However, there is
nothing to support a finding that Ahmed mentioned mistreatment due to his race and
national origin during his employment with Lowe’s. Rather, the record indicates that
while Ahmed did complain to the Human Resources Department about Schmidt on at
least two separate occasions, Ahmed never alleged that Schmidt’s treatment was based on
Ahmed’s race or national origin.1

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hypocrite in his office, and about changing schedules of employees...,” “Doug is not treating me
very well...,” and “Doug is mistreating me and calling me a liar and he thinks I’m not capable of
doing anything.” App. at 399:5-400:21, 404:12-407:16, 408:4-409:15 (Dep. Tr. of Ahmed).
To make out a prima facie case of employment discrimination based on race or national2
origin, a plaintiff must show: (1) he is a member of a protected class; (2) he was qualified for his
position; (3) he was subject to an adverse employment action; and (4) he was discharged under
circumstances that raise an inference of discrimination. See Sarullo v. U.S. Postal Serv., 352
F.3d 789, 797 (3d Cir. 2003).
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Absent any such evidence there is nothing to support Ahmed’s retaliatory
discharge claim.
II.
Ahmed also argues that the district court erred in dismissing his claim of
discrimination based on race and national origin.
The district court found that although Ahmed had successfully made out the
elements of a prima facie case of illegal employment discrimination based on race, he2
failed to adduce evidence that the proffered reasons for terminating him were pretextual.
See McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the shifting burdens analysis of McDonnell-Douglas, once a plaintiff
establishes a prima facie case of discrimination, “the burden [shifts] to the employer to
articulate some legitimate, nondiscriminatory reason for” the adverse employment action.
Id. at 802. Thereafter, the plaintiff must show by a preponderance of the evidence that
the legitimate, nondiscriminatory reasons offered by Lowe’s are merely pretext for
discrimination. See Jones v. Sch. Dist. of Phil., 198 F.3d 403, 410 (3d Cir. 1999) (citing

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On one occasion, Ahmed allegedly grabbed Madara by the face, kissed her cheek,3
and then grabbed both sides of her buttocks when she attempted to leave the vicinity. See
App. at 754. Madara also alleges that Ahmed made sexually inappropriate comments
concerning her and another female co-worker. Id. at 833.
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Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). To successfully
make a showing of pretext, Ahmed must present evidence that either: (1) casts sufficient
doubt upon each of the legitimate reasons proffered by Lowe’s so that a factfinder could
reasonably conclude that each reason was a fabrication; or (2) allows the factfinder to
infer that discrimination was more likely than not a motivating or determinative cause in
termination. See Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994).
Here, there is nothing to rebut the employer’s claim that Ahmed was terminated
because he violated the company’s sexual harassment policy. On July 6, 2004, an Area
Human Resources Manager for Lowe’s, Diane Chuprun conducted an investigation
regarding complaints filed by Dawn Madara. Madara claimed that Ahmed had made
sexually inappropriate comments and advances towards her on two separate occasions.3
After meeting with several employees separately, including Ahmed, to confirm Madara’s
account of the incidents, Chuprun forwarded her investigative materials to her supervisor,
Regional Human Resources Manager Kenneth Zrowka. Zrowka subsequently met with
Chuprun and another Human Resources manager on July 7, 2004 and decided to
terminate Ahmed’s employment.
Ahmed alleges that the Human Resources Department fast-tracked the sexual

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harassment investigation against him but failed to address several complaints he lodged
about unfair treatment with regard to a citation he received from Schmidt for allegedly
using profanity in the workplace. Ahmed asserts that the alleged disproportionate
treatment of the two claims by Human Resources creates an inference of pretextual
discrimination. However, Lowe’s has never cited Ahmed’s alleged use of profanity, or
the related citation he received from Schmidt, as having any bearing on its decision to
discharge him.
Ahmed must present evidence showing that the sexual harassment investigation
resulting in his termination was somehow tainted by discriminatory motives. Rather than
offer any such evidence to raise an issue of fact about that crucial question, Ahmed
chooses to attack Madara and her motives for lodging the sexual harassment complaint.
The relevant question, however, is the integrity of the decisionmaking process
leading up to the determination that Ahmed had violated the sexual harassment policy.
Here, Ahmed fails to point to any facts to rebut the core facts surrounding the
investigation of Madara’s sexual harassment complaints. See Kautz v. Met-Pro Corp.,
412 F.3d 463, 467 (3d Cir. 2005) (noting that “core facts” behind employer’s proffered
reason must be challenged, rather than the decision itself, to establish existence of
genuine issue of material fact). Accordingly, he cannot sustain his burden under
McDonnell-Douglas, and we will therefore affirm the district court’s order of summary
judgment as to Ahmed’s discrimination claim.

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III.
Ahmed also objects to the district court’s dismissal of his hostile work
environment claim.
To establish a hostile work environment claim under Title VII, Ahmed must prove
(1) he suffered intentional discrimination because of his race or national origin; (2) the
discrimination was “pervasive and regular”; (3) the discrimination detrimentally affected
him; (4) the discrimination was sufficiently severe to have detrimentally affected a
reasonable person in his position; and (5) a prima facie case of respondeat superior
liability against his employer. Andrews v. City of Phila., 895 F.2d 1469, 1482 (3d Cir.
1990).
Ahmed asserts that as the only non-white supervisor in a managerial role at his
location, he was treated differently by his supervisor. Specifically, Ahmed alleges that
Schmidt called him incompetent, a hypocrite, and a liar, and that he was disciplined more
severely than other managers. However, even if we accept such general complaints as
fact, they do not rise to the level required to establish a hostile work environment under
Title VII. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). We further agree with
the district court’s conclusion that had Schmidt or any of Ahmed’s co-workers “used
racially insensitive language or threatened him because of his race,” this case may well
have been very different. Ahmed v. Lowe’s Co., Inc., 2008 WL 2967061, at * 7 (E.D. Pa.
July 31, 2008). However, that is not the record here.

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IV.
Finally, Ahmed contends that the district court erred in dismissing his IIED claim.
The district court held that Ahmed’s IIED claim was preempted by the Pennsylvania
Workers’ Compensation Act (“PWCA”), 77 Pa. C.S. § 1, et seq., as it does not fall within
the ‘personal animus’ exception under that Act.
The PWCA bars IIED claims that arise out of an employment relationship. See
Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933, 940 (3d Cir. 1997). There
is, however, a narrow personal animus exception where the alleged injury was motivated
by personal reasons as opposed to generalized contempt or hatred and did not arise in the
course of employment. See 77 P.S. § 411; see also Fugarino v. Univ. Servs., 123 F.
Supp.2d 838, 844 (E.D. Pa. 2000).
On appeal, Ahmed argues that the alleged harassment and discrimination he
experienced at Lowe’s arose out of Schmidt’s, and others’, “purely personal” contempt
for Ahmed’s race and national origin. See Appellant’s Br. at 30. Even if we were to
accept this argument, however, the allegedly discriminatory conduct does not support the
claim that any hostile action against him was unrelated to his job. On the contrary,
Ahmed does not contest that all of the harassment he alleges was exclusively related to
his employment responsibilities at Lowe’s. Therefore, we affirm the district court’s
dismissal of Ahmed’s IIED claim.
V.

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For all the above reasons, we will affirm the district court’s grant of summary
judgment in favor of Lowe’s on each of Ahmed’s claims.

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