Ulysses Robinson; Anthony Hill; Davone Grayson; Showayne Samuels v. Giant Eagle, trading

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-1804
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ULYSSES ROBINSON; ANTHONY HILL; DAVONE GRAYSON;
SHOWAYNE SAMUELS
v.
GIANT EAGLE, trading and doing business as OK Grocery Co; OK GROCERY
ULYSSES ROBINSON; ANTHONY HILL,
Appellants
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-20-cv-01439)
District Judge: Honorable Cathy Bissoon
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Submitted Under Third Circuit L.A.R. 34.1(a)
on February 2, 2024
Before: KRAUSE, PORTER, and CHUNG, Circuit Judges
(Filed: February 23, 2024)
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OPINION*
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* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.

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KRAUSE, Circuit Judge.
To succeed on their claim of employment discrimination under 42 U.S.C. § 1981,
Appellants Ulysses Robinson and Anthony Hill must demonstrate that a reasonable jury
could find that they would not have been fired by their former employer, Giant Eagle,
“but for” their race. Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct.
1009, 1019 (2020). Because they cannot make that showing, we will affirm the District
Court’s grant of summary judgment to Giant Eagle.
DISCUSSION1
A court may affirm a grant of summary judgment only when, “construed in the
light most favorable to the non-moving party, the record shows that there is no genuine
dispute of material fact and that the moving party is entitled to judgment as a matter of
law.” Ali v. Woodbridge Twp. Sch. Dist., 957 F.3d 174, 179 (3d Cir. 2020). A fact is
material only if “it might affect the outcome of the suit under the governing law,” id. at
180, and “[s]peculation and conclusory allegations” will not suffice to establish a factual
dispute, Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020) (citation omitted).
We consider “the totality of the circumstances” to determine whether a plaintiff “has
raised a factual issue regarding the employer’s true motivation for discharge.” Canada v.
Samuel Grossi & Sons, 49 F.4th 340, 347 (3d Cir. 2022) (citation omitted). And because
Appellants brought this case under 42 U.S.C. § 1981, they cannot succeed by
1 The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have
jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a grant of
summary judgment. Nitkin v. Main Line Health, 67 F.4th 565, 570 n.2 (3d Cir. 2023).

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demonstrating that race may have been a “motivating factor” in their termination; instead,
they must show that, but for their race, Giant Eagle would not have fired them. Comcast,
140 S. Ct. at 1017–19.
The District Court applied this standard to Appellants’ employment discrimination
claims using the three-step burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir.
1999); Ali, 957 F.3d at 180. Under that framework, a plaintiff must first establish a prima
facie case of discrimination by demonstrating that (1) he belongs to a racial minority,
(2) he was qualified for the position he lost, (3) he was discharged, and (4) colleagues
who were not part of the protected class were treated more favorably. Josey v. John R.
Hollingsworth Corp., 996 F.2d 632, 637–38 (3d Cir. 1993). If he succeeds, “the burden
shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason’” for the
adverse action. Jones, 198 F.3d at 410 (quoting McDonnell Douglas, 411 U.S. at 802).
And if the defendant meets that burden at step two, the plaintiff must show at step three,
using “direct or circumstantial evidence,” that the defendant’s proffered reason was only
a pretext for discrimination. Ali, 957 F.3d at 180. Ultimately, the burden of persuasion
remains with the plaintiff. Jones, 198 F.3d at 410.
Here, even assuming that Robinson and Hill can establish a prima facie case, they
cannot carry that ultimate burden. At the second step, Giant Eagle unquestionably put
forward a legitimate, nondiscriminatory reason for firing them. Specifically, it asserted
that it fired them not because of their race, but because they violated the company’s
harassment and/or retaliation policies. See Capps v. Mondelez Glob., LLC, 847 F.3d 144,

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152 (3d Cir. 2017) (observing that violation of company policy constitutes a “legitimate,
nondiscriminatory justification” for discharging an employee). The burden at trial would
therefore shift back to Appellants to show that this proffered reason was merely
pretextual. But Robinson and Hill have not established a genuine issue of material fact
that it was.
To defeat summary judgment at this third step, Appellants would need to “paint[]
the [employer’s articulated reasons] as weak, implausible, contradictory, or incoherent”
or show the jury that “the employer treated other, similarly situated persons not of [their]
protected class more favorably.” Canada, 49 F.4th at 347 (quoting Fuentes v. Perskie, 32
F.3d 759, 764–65 (3d Cir. 1994)). The record on summary judgment supports neither
possibility. Instead, the undisputed facts are that (1) Giant Eagle fired Appellants for
allegedly arguing with and threatening a coworker, Michael Tranter; (2) at the time of the
argument, Robinson was subject to a “last chance agreement” for misreporting his hours
during a recent shift, and rumors had spread that Tranter had reported Robinson to
management; (3) Katie Pacanowski, the relevant decisionmaker at the time of the
incident, documented interviews with five eyewitnesses who told her that Hill threatened
Tranter without provocation and/or called him a “rat” or a “snitch”; (4) Pacanowski
reviewed a video recording of the argument that showed Hill standing threateningly over
Tranter and that appeared to corroborate the witnesses’ recollections of the fight; and
(5) contemporaneous email and meeting notes show that, after the incident, Pacanowski
claimed to remember Robinson inquiring into who reported him for his earlier

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misconduct and her warning him that such questions constituted impermissible
retaliation.2
To the extent that Appellants attempt to create a triable issue as to pretext by way
of comparators, the employees in the examples they cite are simply not similarly situated.
In one proposed comparator, a white employee cornered another employee and
threatened him, and Giant Eagle allowed the offender to return to work after he attended
anger and conflict training. Unlike here, that dispute involved “he said-he said”
allegations that Giant Eagle could not independently corroborate. In a second
comparator, a white employee poked a coworker in the shoulder several times; the white
employee returned to work after an unpaid suspension and completion of a “life
resources” training. But in that case, the aggressor reported his own misconduct and
offered to apologize to his coworker. In a third comparator, a white employee swore at a
coworker, after which he served a three-day unpaid suspension. None of these examples
involved the same sort of allegations of ongoing retaliatory intent present in this case, nor
were any captured on video.
Looking at the record as a whole, Appellants have not adduced any facts that
would rebut Giant Eagle’s “articulated legitimate reason[]” for firing them: the
2 Appellants contend that a different Giant Eagle employee inquired into who reported on
Robinson. But Pacanowski’s notes from the time of the incident and her subsequent
deposition demonstrate that she understood Robinson to have asked who reported him, an
understanding that was reasonable under the circumstances. App. 600, 613–16
(Pacanowski deposition); App. 2016 (notes from a meeting with Robinson in which
Robinson seems to agree that he had previously asked about and been warned against
investigating into who reported him).

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voluminous evidence that came to light in the investigation establishing that Appellants
threatened Tranter in retaliation for his reporting on Robinson’s earlier misconduct.
Canada, 49 F.4th at 347; see also Capps, 847 F.3d at 153 (explaining that the relevant
question is not the “accuracy of the employer’s assessment” that an employee violated a
policy, but rather the existence of the employer’s “honest belief” that the policy was
violated (citation omitted)). The question before us is not whether the decision to
terminate Appellants was “wise, shrewd, prudent, or competent.” Fuentes, 32 F.3d at
765. It is whether the evidence would allow a reasonable jury to “disbelieve [Giant
Eagle’s] articulated legitimate reasons” or “believe that an invidious discriminatory
reason was more likely than not a . . . determinative cause of [Giant Eagle’s] actions.”
Canada, 49 F.4th at 349 (quoting Fuentes, 32 F.3d at 764). And on the record before us,
we cannot say that it would.
CONCLUSION
For the foregoing reasons, we will affirm the judgment of the District Court.

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