Tyra Coleman v. BLOCKBUSTER, INC. Tyra Coleman

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4056
TYRA COLEMAN; RASHEEDAH GARNER; SHEILA LOVE;
MARK TERRY; CHRISTIAN BLACKWELL-MURRAY;
ERIC OLIPHANT; CRAIG WEST
v.
BLOCKBUSTER, INC.
Tyra Coleman,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 05-cv-04506)
District Judge: Honorable Eduardo C. Robreno
Submitted Under Third Circuit LAR 34.1(a)
September 21, 2009
Before: BARRY, FISHER and JORDAN, Circuit Judges
(Opinion Filed: November 17, 2009)
OPINION
BARRY, Circuit Judge

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Some of the other plaintiffs filed notices of appeal, but Coleman is the only one who1
has pressed an appeal.
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Plaintiff Tyra Coleman, along with others, brought this action in the U.S. District
Court for the Eastern District of Pennsylvania against her employer, Blockbuster, Inc.
(“Blockbuster”), alleging discriminatory training and termination of her employment in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and 42 U.S.C. § 1981.
The District Court, after concluding that Coleman was unable to establish a prima facie
case of discrimination, granted Blockbuster’s motion for summary judgment, and
Coleman appealed. We will affirm.1
I. BACKGROUND
On September 8, 2003, Tyra Coleman was hired as a Blockbuster store manager
trainee by district manager Cari-Ann Urbanek. She was promoted to store manager at the
Grays Ferry, Philadelphia Blockbuster store a few months later. After a series of
disciplinary infractions during her nine months with Blockbuster, her employment was
terminated on June 22, 2004.
A. Blockbuster’s Progressive Discipline Policy
Blockbuster’s disciplinary policies aim to provide consistency when dealing with
employee performance issues and, at the same time, retain enough flexibility to take “into
consideration the nature of the policy violation as well as previous disciplinary actions for
each individual.” (App. at 331.) Blockbuster’s Employee Handbook makes clear that

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where there has been a performance violation, “the seriousness and history of [that]
violation must be taken into account.” (Id.) Corrective action usually progresses as
follows: verbal warning, written warning, final warning, and ultimately, termination. The
Handbook is explicit that an employee’s status is “at-will” and that disciplinary measures
may be accelerated.
Violations prompting corrective action are broadly classified into three categories,
and while the “list of violations is not meant to be all-inclusive,” it is instructive. (Id.)
Moreover, any corrective action ultimately “will depend on the exact nature of the
offense.” (Id. at 332.) Class A violations, or gross violations, are “very serious and may
be grounds for immediate termination.” (Id.) Examples of Class A violations include
borrowing money from the cash drawer, disregarding Blockbuster’s policies, engaging in
harassing behavior, and making racial slurs. “[G]ross negligence that endangers people
or property” is also a violation, and employees are prohibited from “[a]llowing any non-
Blockbuster personnel . . . into the store or other Blockbuster facility outside of normal
business hours or into unauthorized areas during normal business hours.” (Id. at 335.)
Class B violations, or major violations, include negligent conduct that could endanger
others and that puts “Blockbuster in a position of possible legal liability.” (Id.) “Opening
store late and/or closing store early without District Leader’s permission” is also
punishable as a Class B offense. (Id. at 336.) When an employee commits his or her first
Class B offense, “the employee may receive a final written warning and be advised that a

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Coleman was aware of the Operating Procedures. (App. at 764.)2
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recurrence may be grounds for termination.” (Id.) Blockbuster’s Standard Operating
Procedures (“Operating Procedures”) also make clear that if an “employee is already on
Progressive Discipline at the time another violation is committed, he or she may be
subject to more stringent penalties even though the later violation is a different type from
the earlier one.” (Id. at 345.) Finally, Class C violations, or minor violations, include2
excessive absenteeism, violation of company dress code standards, and “unsatisfactory
job performance.” (Id. at 336.) At the first commission of a Class C violation, the
employee “may be given a verbal warning . . . , [and on] further occurrences, one or more
written warnings may be conducted before termination.” (Id.)
B. Coleman’s Employment at Blockbuster
On January 14, 2004, Coleman was assigned to be the store manager at
Blockbuster’s Grays Ferry location. Stores are inspected to ensure that they are up to the
appropriate level of operational and merchandising standards. When making this
assessment, evaluators use the “Model Store Checklist,” and all stores must score an eight
or greater. (Id. at 386.) After an evaluation of Coleman’s store on March 2, 2004, the
store was given a score of 4.3. Coleman was given a supplemental checklist to improve
her store’s condition, and she represented at a meeting on March 9 that she would have
her store up to the appropriate standard by April 2. On April 9, however, the store was
again evaluated and given a score of 5. Coleman received written corrective action,

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Cycle counts are mandatory tasks used to track a store’s inventory. They require an3
employee to “do blind counts on the required product, and then status the item to check
for variances” in inventory. (App. at 387.)
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which cited her “[f]ailure to meet performance standard - Store Standards.” (Id.)
Coleman and Urbanek signed the Corrective Action Record on April 20, 2004.
Coleman received a second Corrective Action Report that same day, this time for
her failure to conduct cycle counts on a daily basis; indeed, there had been no cycle
counts for nine days. Despite signing the Corrective Action Report, Coleman maintained3
that the failure to perform cycle counts is not listed as a Class A, B, or C offense, and that
she was not responsible for carrying out the cycle counts. The Corrective Action Report
notes that as store manager, “it is Tyra’s responsibility to ensure that all other employees
are also performing their cycle counts.” (Id. at 387.) This discipline was considered a
“final warning.” (Id.)
A third Corrective Action Report was issued to Coleman on June 11, 2004. This
Report resulted from two alleged infractions: first, Coleman missed a mandatory team
meeting on June 7, 2004, and second, Coleman brought her two year-old grandson to
work with her. Coleman was instructed to attend all mandatory meetings and reminded
not to bring non-employees into the workplace either before or after the store’s scheduled
business hours. The consequences portion of the document reads: “Failure to improve
will result in termination of employment.” (Id. at 388.) This document notes Coleman’s
two prior offenses, is signed by both Coleman and Urbanek, and is marked “final

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warning.”
Coleman’s termination resulted from an episode that occurred on June 15, 2004.
The exact details of what transpired that day are in dispute, but the basic narrative is not.
At some point during her shift, Coleman learned that her minor son was having a medical
emergency and, having no one else to be with him, she called Urbanek to request
permission to close the store early and leave work. Urbanek’s exact response is unclear,
but Coleman’s understanding is that she said, “I’m not telling you not to attend to your
son, and I’m not telling you not to close the store.” (Id. at 764.) Coleman then claims
that Urbanek called her back and reminded her to make certain that the register was
properly secured. Whatever this exchange meant, it left Coleman with the impression that
she was free to do what she needed to do. On June 22, 2004, Coleman’s employment at
Blockbuster was terminated as a result of her closing the store early on June 15. The
Employee Separation Form noted Coleman’s disciplinary history: a written warning on
April 20 for “store appearance,” a final written warning on April 20 for “failure to protect
comp. assets - cycle counts,” and another final written warning on June 11 for
“attendance and non-employee in store.” (Id. at 384.)
II. STANDARD OF REVIEW
We exercise plenary review of the District Court’s order granting summary
judgment and apply the same standard the Court was required to apply: whether there are
any genuine issues of material fact sufficient to permit a reasonable jury to find in favor

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of the plaintiff. Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 362 (3d Cir. 2008). In
conducting our review, we must view “the facts and any reasonable inferences drawn
therefrom in the light most favorable to the party opposing the motion.” In re Flat Glass
Antitrust Litig., 385 F.3d 350, 357 (3d Cir. 2004) (quoting InterVest, Inc. v. Bloomberg,
L.P., 340 F.3d 144, 160 (3d Cir. 2003)). We have jurisdiction under 28 U.S.C. § 1291.
III. DISCUSSION
Employment discrimination claims under Title VII and § 1981 are analyzed
pursuant to the burden-shifting framework articulated in McDonnell Douglas Corp. v.
Green. 411 U.S. 792, 802 (1973); see also Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d
486, 499 (3d Cir. 1999) (“[T]he elements of employment discrimination under Title VII
are identical to the elements of a section 1981 claim.”) (internal citations omitted).
Accordingly, Coleman bore the initial burden of setting out a prima facie case of
discrimination by a preponderance of the evidence. See St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 506 (1993). The burden then shifts to the employer to “articulate some
legitimate, nondiscriminatory reason for the employee’s [termination].” McDonnell
Douglas, 411 U.S. at 802. Finally, the plaintiff must then prove by a preponderance of
the evidence “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. 2003); see Hicks, 509 U.S. at 507-08.
There is no dispute as to the first three elements of Coleman’s prima facie case: (a)

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she is African-American, (b) she was qualified for the position that she held, and (c) she
suffered an adverse employment action when she was terminated by Blockbuster. At the
fourth prong, however, the District Court determined that Coleman failed to offer
“evidence that she was terminated under circumstances that give rise to an inference of
unlawful termination.” (App. at 29.) Thus, the Court granted summary judgment on
Coleman’s Title VII and § 1981 claims.
On appeal, Coleman argues that the District Court applied too harsh a standard
when assessing this final prong of the prima facie case. We disagree. The Court
recognized that the aim of the prima facie test is to discern “whether the employer is
treating ‘some people less favorably than others because of their race, color, religion, sex,
or national origin.’” Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999)
(quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)). It
proceeded to look for just that, but did not find that Coleman’s case gave rise to an
inference of discrimination.
Even assuming arguendo that Coleman established a prima facie case, her claim
must nonetheless fail because she is unable to demonstrate that Blockbuster’s proffered
legitimate, nondiscriminatory reason for termination “was merely a pretext for unlawful
discrimination.” Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 319 (3d Cir.
2000). Demonstrating pretext is a “difficult burden.” Fuentes v. Perskie, 32 F.3d 759,
765 (3d Cir. 1994). Doing so requires that the plaintiff “point to some evidence, direct or

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circumstantial, from which a factfinder could reasonably either (1) disbelieve the
employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory
reason was more likely than not a motivating or determinative cause of the employer’s
action.” Fuentes, 32 F.3d at 764; see Hampton v. Tinton Falls Police Dep’t, 98 F.3d 107,
113 (3d Cir. 1996). Making a judgment about whether pretext exists is “a fact-based
inquiry,” Kautz v. Met-Pro Corp., 412 F.3d 463, 468 (3d Cir. 2005), and so the plaintiff
“must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of credence,” Fuentes, 32 F.3d
at 765 (internal citations omitted).
Blockbuster came forward with solid evidence to demonstrate that the reason for
Coleman’s termination was her dereliction of duty. In accordance with its progressive
discipline policy, Coleman’s earlier performance deficiencies did not result in immediate
termination. She was first given a written warning for failing to keep the store up to
standards, and then issued a final warning for not making certain that routine cycle checks
were performed. When she missed a meeting and brought a young child into the store
against policy, she was not terminated but, rather, was issued a second written warning.
By the time Coleman closed the store early on June 15, she had a record of disciplinary
problems, and had been issued two final warnings. Thus, the corrective action followed
the progression articulated in the Handbook.

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Coleman disputes many of the facts related to the earlier disciplines. For example,
she argues that the cycle counts were not her responsibility and that she informed
Urbanek that she would miss the June 7 training session but make it up at a later date.
Nonetheless, Coleman signed each of these reports at the time they were issued. She also
argues that certain of her actions that resulted in some form of discipline were not
explicitly listed as Class A, B, or C violations; however, the Handbook is clear at the
outset that the “list of violations is not meant to be all-inclusive.” (App. at 331.) As to
the June 15 store closure that resulted in her termination, whether Coleman legitimately
thought that she had permission to close is not material because there is no evidence even
suggesting that her termination was motivated by race. In any event, Coleman argues,
“you have to commit the same action over and over again before you’re terminated.” (Id.
at 360.) This argument is directly at odds with Blockbuster’s Operating Procedures,
which make clear that an employee who has already been disciplined “at the time another
violation is committed . . . may be subject to more stringent penalties even though the
later violation is a different type from the earlier one.” (Id. at 345 (emphasis added).)
Coleman also cites what she describes as “evidence” in her effort to establish
pretext. She refers, without any substantiation, to a Caucasian employee in her store who
“got away with murder” and was not terminated. (Id. at 360.) She points to yet another
employee, Greg Zielinski, who was not terminated, but instead, given a final warning
when he closed his store too early. Coleman incorrectly describes him as “similarly

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situated,” but as Zielinski’s Corrective Action Record indicates, he had no prior
disciplinary infractions at the time he was disciplined. Coleman marshals other
“contextual evidence of discrimination,” but that “evidence” is page after page of
anecdotes overheard and unsubstantiated allegations, all of it having little or nothing to do
with her termination or with discrimination.
IV. CONCLUSION
Coleman has not shown “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” in Blockbuster’s reasons for terminating her such that a
factfinder could “rationally find them unworthy of credence.” See Fuentes, 32 F.3d at
765; see also Jones v. Sch. Dist. of Phila., 198 F.3d 403, 413 (3d Cir. 1999). The order of
the District Court will be affirmed.

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