United States District Court, D. New Jersey
August 12, 2005.
DONNIE E. BOYD, Plaintiff,
OWENS CORNING FIBERGLASS and TEAMSTERS UNION LOCAL #408, Defendants.
The opinion of the court was delivered by: JOSE LINARES, District Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION AND ORDER
This matter is before the court on the motion of Defendant
Owens Corning Fiberglass (hereinafter "Defendant" or "Owens
Corning") for summary judgment pursuant to Fed.R.Civ.P. 56(c).
Plaintiff Donnie E. Boyd (hereinafter "Plaintiff" or "Boyd"), who
is pro se, commenced suit against Owens Corning on various
claims of discrimination and wrongful termination. This Court has
jurisdiction over this case pursuant to 28 U.S.C. § 1331. This
motion is resolved without oral argument pursuant to Rule 78 of
the Federal Rules of Civil Procedure. For the reasons stated
herein, Defendant's motion for summary judgment is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
For purposes of the instant motion, the relevant facts are as
follows. Owens Corning is a international company, involved in,
among other things, the production of roofing shingles.
(Defendant's Local Civil Rule 56.1 Statement of Uncontested Facts
(hereinafter "Def.'s Statement"), ¶ 1). Owens Corning operates a roofing shingle
production facility in Kearny, New Jersey. (Def.'s Statement ¶
2). On May 5, 1998, Boyd, an African-American male, began
employment as a Mat Tender at the Kearny facility. (Id. ¶ 3).
His duties included placing mats of raw shingles onto the
production line and ensuring that the mats did not contain holes
or other noticeable defects. (Id. ¶ 15).
The terms and conditions of Boyd's employment at Owens Corning
were governed by a collective bargaining agreement (hereinafter
the "CBA") that existed between Owens Corning and the Building
Materials, Heavy Highway & Construction Industries, Drivers,
Helpers & Warehousemen Teamsters Union Local 408 (hereinafter the
"Union"). (Def.'s Statement ¶ 4; Certification of Thomas Masselli
(hereinafter "Masselli Cert."), Ex.A at Article II, Section
1(E)). Under the terms of the CBA, Owens Corning retained "the
right to promote, demote, discipline, suspend, discharge for just
cause, layoff, and transfer" any employee governed by the CBA.
(Id. ¶ 6). Owens Corning had a progressive discipline policy in
place that covered job performance as well as employee attendance
and lateness issues. (Masselli Cert. ¶ 4). Under this policy,
verbal warnings were followed by written warnings, and if the
problems continued to persist, suspensions were imposed. (Id. ¶
5). A suspension could range from one to three days in duration,
depending upon the infraction, and successive suspensions could
range from three to five days. (Id. ¶ 6).
On December 2, 1998, Boyd received an attendance warning for
being late to work. (Def.'s Statement ¶ 21). Boyd acknowledged
the attendance warning by signing an Owens Corning Personnel
Action Form ("Personnel Action Form") in accordance with Owens
Corning policy. (Id.; Masselli Cert. Ex.B). On February 5,
1999, Boyd received a verbal job performance warning and again,
acknowledged the warning by signing another Personnel Action Form. (Def.'s Statement ¶ 22; Masselli Cert. Ex.C). On June 29,
1999, Boyd received another verbal warning for arriving to work
late and/or leaving work early, and again signed a Personnel
Action Form. (Def.'s Statement ¶ 23; Masselli Cert. Ex.D).
On January 18, 2000, Boyd received a written attendance warning
that covered five separate attendance-related incidents within a
nine-month period. (Def.'s Statement ¶ 24; Masselli Cert. Ex.E).
Thereafter, in April 2000, Boyd was suspended from work for three
days following a series of eight unexcused absences that covered
an eleven-month time period. (Def.'s Statement ¶ 25; Masselli
Cert. Ex.F). Although Boyd does not recall the details of the
three-day suspension, he acknowledges signing the Personnel
Action Form advising of the suspension. (Certification of David
E. Strand (hereinafter "Strand Cert."), Ex.A at 52; Masselli
In February 2002, Owens Corning terminated the employment of
James Redding, an African-American male, who worked as a Back End
Relief operator. (Def.'s Statement ¶¶ 27-28). The Union advised
Owens Corning of its intent to arbitrate Redding's termination
with the understanding that Redding would return to the position
in the event of a favorable decision. (Id. ¶¶ 29, 43-44).
Consequently, Owens Corning announced Redding's available Back
End Relief position on a temporary basis. (Id. ¶¶ 28-29). Both
Boyd and Octavio Guzman, a Hispanic employee, bid for the open
Back End Relief position in March 2002. (Def.'s Statement ¶ 30;
Masselli Cert. ¶ 15). Thereafter, pursuant to the CBA, the
temporary position was awarded to Boyd based on seniority.
(Def.'s Statement ¶ 31). This position constituted a promotion
According to Boyd's supervisors, Joseph Barone and Thomas
Masselli, Boyd's performance during the first forty-five day
training period as a Back End Relief Operator was substandard. (Def.'s Statement ¶ 32; Certification of Joseph
Barone (hereinafter "Barone Cert."), ¶ 7; Masselli Cert. ¶ 16).
By letter of June 17, 2002, Barone advised the Union that Boyd's
performance as back End Relief operator was not acceptable, and
that Boyd would be returned to the previous position of Mat
Tender. (Barone Cert. ¶ 8 and Ex.A). In June 2002, Boyd was
demoted to Mat Tender, and Guzman was promoted into the Back End
Relief operator position. (Def.'s Statement ¶ 35). Thereafter,
Boyd filed a grievance over the demotion on or about June 15,
2002. (Id. ¶ 36; Barone Cert. Ex.B).
On August 1, 2002, while Boyd's grievance was still pending, he
received a verbal job performance warning, and acknowledged same
by signing another Personnel Action Form. (Def.'s Statement ¶
37). On August 16, 2002, Boyd was suspended for one day from his
Mat Tender position for abandoning his work station at the end of
a shift. (Id. ¶ 38). Boyd apparently refused to sign the
Personnel Action Form in connection with this incident; it was
therefore signed by Barone, the Union shop steward. (Id.;
Barone Cert. Ex.D). On August 30, 2002, Owens Corning reached an
agreement with the Union regarding Boyd's grievance and removal
from the temporary Back End Relief operator position, and he was
consequently given a second opportunity at the position. (Def.'s
Statement ¶¶ 39-40). Barone notes, however, that "Boyd's second
attempt at training and qualifying for the temporary Back End
Relief position was not better than his first and his performance
was again substandard and not acceptable." (Barone Cert. ¶ 15).
In October 2002, an Arbitrator issued an Opinion and Award in
connection with Redding's prior termination from the Back End
Relief operator position. (Masselli Cert. ¶ 23 and Ex.H). The
Arbitrator found that there was not proper cause for the
termination, and ordered that Redding be reinstated. (Masselli
Cert. Ex.H). Redding was restored to the position of the Back End Relief operator, and Boyd was returned to the Mat Tender
position. (Def.'s Statement ¶¶ 44-45).
On October 25, 2002, Boyd received yet another verbal warning
for excessive absenteeism. (Def.'s Statement ¶ 46). Thereafter,
on November 21, 2002, Boyd abandoned the Mat Tender work station
for a second time and was suspended for five days. (Id. ¶ 51).
This five-day suspension was reduced to three days as the result
of grievances filed by both Boyd and the Union. (Id. ¶ 52).
Boyd also received a separate three-day suspension for
falsification of work data. (Id. ¶ 54).
On November 30, 2002, upon return to work from the
aforementioned three-day suspension, Boyd ignored workplace
procedure and entered the company exercise room without disabling
the security alarm system, prompting local law enforcement to
respond. (Def.'s Statement ¶¶ 56-57). As a result, Boyd was
suspended pending further investigation. (Id. ¶ 58). There was
an internal investigation, and Owens Corning determined that Boyd
ignored instructions given by the Human Resources Leader as well
as the immediate supervisor. (Def.'s Statement ¶ 59). Owens
Corning consequently terminated Boyd's employment on December 2,
2002 due to insubordination and continued substandard job
performance. (Id. ¶¶ 60, 63). Boyd unsuccessfully grieved the
termination and the Union elected not to arbitrate. (Id. ¶¶
On April 23, 2004, Boyd filed a charge of racial discrimination
with the Equal Employment Opportunity Commission ("EEOC")
alleging that Owens Corning discriminated against him by failing
to promote him "because [he was] Black," and further, that it
terminated him based upon his race. (Def.'s Statement ¶ 72-73;
Strand Cert. Ex.C). On August 7, 2003, Boyd commenced the instant action on various claims of
discrimination and/or retaliation, premised on Title VII of the
Civil Rights Act of 1964 ("Title VII"), as amended,
42 U.S.C. § 2000e et seq.*fn2 Boyd's handwritten Complaint alleges,
inter alia, both racial and religious discrimination on the
part of Owens Corning.*fn3 (Compl. ¶ 10). Boyd's religious
discrimination claim is grounded in Owens Corning's failure to
include certain Islamic holidays as paid days off within the CBA.
(Strand Cert. Ex.A at 16-17). Boyd's Complaint sets forth no new
facts and relies entirely on the factual allegations contained in
the EEOC charge. (Compl. ¶¶ 9-11).
Present before this Court is Owens Corning's motion for summary
judgment. Boyd has filed no papers opposing the motion.*fn4
A. Summary Judgment
Fed.R.Civ.P. 56(c) provides for summary judgment when the
moving party demonstrates that there is no genuine issue of
material fact and the evidence establishes the moving party's
entitlement to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317 (1986); Orson, Inc. v. Mirimax Film
Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). Once the moving party
has satisfied its initial burden, the party opposing the motion
must establish that a genuine issue as to a material fact exists.
Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir. 1985), cert. denied,
475 U.S. 1013 (1986). In considering a motion for summary judgment, all
evidence submitted must be viewed in a light most favorable to
the party opposing the motion. Brewer v. Quaker State Oil Ref.
Corp., 72 F.3d 326, 330 (3d Cir. 1995); Colgan v. Fisher
Scientific Co., 935 F.2d 1407, 1413 (3d Cir.), cert. denied,
502 U.S. 941 (1991).
The party opposing the motion for summary judgment cannot rest
on mere allegations and must instead present actual evidence that
creates a genuine issue as to a material fact for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);
Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125,
1130-31 (3d Cir. 1995); Sound Ship Bldg. Corp. v. Bethlehem
Steel Co., 533 F.2d 96, 99 (3d Cir.), cert. denied,
429 U.S. 860 (1976). However, a mere "scintilla" of evidence in favor of
the non-movant is insufficient to withstand a summary judgment
motion. Liberty Lobby, 477 U.S. at 252. Rather, "the
determination of whether a given factual dispute requires
submission to a jury must be guided by the substantive
evidentiary standards that apply to the case." Id. at 255. The
inquiry is whether there is enough evidence so that under the
governing evidentiary standard, a reasonable juror would be able
to find for either the plaintiff or the defendant. Id.
When, as here, the nonmoving party fails to oppose the motion
by written objection, memorandum, affidavits and other evidence,
the court "will accept as true all material facts set forth by
the moving party with appropriate record support." Anchorage
Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d
Cir. 1990). That is to say, failure to oppose a motion for
summary judgment effects a waiver of the right to controvert the
facts asserted by the moving party. Id. at 175-76. Such failure
to oppose the motion does not, however, allow the district court
to automatically grant a motion for summary judgment. Jaroma v.
Massey, 873 F.3d 17, 20 (1st Cir. 1989). Such a rule would violate
Fed.R.Civ.P. 56(e) ("If the adverse party does not so respond, summary
judgment, if appropriate, shall be entered against the
adverse party.") (emphasis supplied). The "appropriateness" of
summary judgment requires the court to determine that the moving
party demonstrate that it is entitled to judgment as a matter of
law. Anchorage Assocs., 922 F.2d at 175; Bowers v. Nat'l
Collegiate Athletic Ass'n, 118 F. Supp. 2d 494, 510 (2000).
Thus, summary judgment is not properly entered in favor of the
moving party based solely on a failure to oppose the motion,
without a determination that the moving party is entitled to
judgment as a matter of law based on facts set forth in the
motion. Anchorage Assocs., 922 F.2d at 171.
With this legal framework in mind, the Court will now address
Owens Corning's motion for summary judgment.
A. Wrongful Termination
Boyd alleges that his termination from Owens Corning was based
on race, in violation of Title VII. (Compl. ¶¶ 9-10). Section
2000e-2 of Title 42 of the United States Code provides, in
It shall be an unlawful employment practice for an
employer (1) to fail or refuse to hire or to
discharge any individual, or otherwise to
discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color,
religion, sex, or national origin . . .
42 U.S.C. § 2000e-2 (a)(1). The Third Circuit applies the
burden-shifting analysis announced in McDonnell Douglas Corp. v.
Green, 411 U.S. 792
, 802 (1973). Iadimarco v. Tunyon,
190 F.3d 151
, 157 (3d Cir. 1999). Initially, a plaintiff has the burden of
demonstrating by a preponderance of the evidence a prima
facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. Once the plaintiff has established a prima facie
case, "[t]he burden [of production] then must shift to the
employer to articulate some legitimate, nondiscriminatory reason
for the employee's rejection." Id. at 802. Finally, if the
employer proffers some evidence of a legitimate,
nondiscriminatory reason, then the plaintiff must "be afforded a
fair opportunity to show that [employer's] stated reason for
[plaintiff's] rejection was in fact pretext" masking an otherwise
discriminatory animus. Id. at 804.
In the context of a claim of wrongful termination, the Third
Circuit has held that the plaintiff must "`prov[e] by a
preponderance of the evidence that (1) he belongs to a protected
class; (2) he was qualified for the position; (3) he was
dismissed despite being qualified; and (4) he ultimately was
replaced by a person [outside the protected class].'" Marzano v.
Computer Sci. Corp., 91 F.3d 497, 503 (3d Cir. 1996) (quoting
Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.),
cert. dismissed, 483 U.S. 1052 (1987)); see also
Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1066
n. 5 (3d Cir. 1996), cert. denied, 521 U.S. 1129 (1997). In
the instant matter, Owens Corning does not dispute that Plaintiff
is a member of a protected class or that he was discharged.
(Def.'s Br. at 5). Owens Corning maintains, however, that
Plaintiff's claim of wrongful termination based on race should be
dismissed because Plaintiff is unable to meet all of the elements
necessary for a prima facie case of racial discrimination
under Title VII. This Court agrees.
This Court finds that Boyd has failed to establish the second
part of his prima facie case, i.e., that he was qualified for
the position of Mat Tender. To establish that he was qualified,
Boyd must "demonstrate that he was performing his job at a level
which met his employer's legitimate expectations at the time of
the termination." Henwood v. EMC2 Corp., 1993 WL 360776, *4
(D.N.J. Sept. 13, 1993) (citing Ang v. Proctor & Gamble Co.,
932 F.2d 540, 549 (6th Cir. 1991)); see also Gorham v. American Tel. & Tel. Co.,
762 F. Supp. 1138, 1144 (D.N.J. 1991) (finding that plaintiff
therein failed to rebut evidence proffered by defendant that she
was performing unsatisfactorily at the time of her termination
from employment). In support of its motion for summary judgment,
Owens Corning has offered evidence showing that Boyd was
discharged from Owens Corning because he was not performing his
duties satisfactorily. It is uncontroverted that Plaintiff
received numerous warnings for excessive absenteeism and
substandard work performance during his tenure at Owens Corning.
The record clearly reveals that Plaintiff had not performed as
Mat Tender to Owen Corning's satisfaction or expectations.
Accordingly, Plaintiff has failed to meet his prima facie
case of discrimination and as a matter of law this court rules
that no material issues remain for trial. Hence, Boyd cannot
satisfy his burden of establishing a prima facie case of
discrimination under Title VII.
Given that Boyd has failed to establish a prima facie case,
the Court need not examine whether Owen's Corning's proffered
reasons for the termination were pretextual.
B. Failure To Promote
A plaintiff claiming a failure to promote under Title VII must
carry the initial burden of establishing a prima facie case
of unlawful discrimination. The plaintiff must thus establish
that "he or she (1) belongs to a protected category; (2) applied
for and was qualified for a job in an available position; (3) was
rejected [despite his qualifications]; and (4) after the
rejection, the position remained open and the employer continued
to seek applications from persons of plaintiff's qualifications
for the position," or the position was filled with a person not
of plaintiff's protected class. Bray v. Marriott Hotels,
110 F.3d 986, 989-90 (3d Cir. 1997) (citing McDonnell Douglas,
411 U.S. at 802); see also Barber v. CSX Distrib. Svcs.,
68 F.3d 694, 698 (3d Cir. 1995); Valdes v. Union City Bd. of
Educ., 2005 WL 1225105, *7 (D.N.J. Apr. 29, 2005). If the plaintiff meets these elements, the burden of
production then shifts to the defendant to "`articulate some
legitimate, nondiscriminatory reason for the employee's
rejection.'" Bray, 110 F.3d at 990 (quoting Fuentes v.
Perskie, 32 F.3d 759, 763 (3d Cir. 1994). "The employer must
then come forth with evidence, which, if taken as true,
demonstrates that there was a nondiscriminatory reason for the
decision not to promote the plaintiff." Bray, 110 F.3d at 990.
If the employer satisfies this burden, the plaintiff must present
evidence from which a reasonable factfinder could conclude that
the employer's explanation for the alleged discriminatory
decision is pretext masking an otherwise discriminatory animus.
Id. If plaintiff fails to do so, the defendant employer is
entitled to a judgment as a matter of law. Id.
Here, Owens Corning does not contest that Boyd is a member of a
protected class, however, it does maintain that Boyd is unable to
establish all of the elements of the prima facie case of
discriminatory treatment. (Def.'s Br. at 16). Owens Corning
argues that despite two attempts, Boyd failed to prove that he
was qualified for the position of Back End Relief operator. In
analyzing whether Boyd was qualified for the position of a Back
End Relief operator, this Court "must confine its inquiry to the
objective qualifications related to the position" at issue.
Santiago v. City of Vineland, 107 F. Supp. 2d 512, 532 (D.N.J.
2000) (quoting Watson v. City of Salem, 934 F. Supp. 643, 654
(D.N.J. 1995) (citing Ezold v. Wolf, Block, Schorr and
Solis-Cohen, 983 F.2d 509, 523 (3d Cir. 1992), cert. denied,
510 U.S. 826 (1993)). Owens Corning represents that Boyd was
subject to a 45-day "training/qualifying" period in connection
with the Back End Relief position. (Masselli Cert. ¶ 16; Barone
Cert. ¶ 7). It maintains that Boyd was not qualified for the
position of Back End Relief operator because his performance
during the training period was substandard. During Boyd's initial
attempt at the position, Barone, the Operations Leader at Owens
Corning's Kearny facility at the time, determined that his performance during this period was "not acceptable," and made the
decision that Boyd would be returned to the Matt Tender position.
(Barone Cert. ¶ 8). In a June 17, 2002 memorandum to the Union,
Donnie Boyd lacked the initiative, motivation and the
capacity to perform the back end relief tasks.
Although Donnie is able to operate the mat and press
section, he was making little progress understanding
the more dynamic and detail oriented functions
including the coater and slater operations. It was
also recognized that Donnie's ability to engage when
it came to process reconciliation (i.e., mat breaks,
stickers, etc.) was non-existent. Simply put, Donnie
appears lethargic in his work ethic, subsequently
exonerating him as a candidate for his demanding job
(Barone Cert. Ex.A). Boyd was subsequently demoted back to the
Mat Tender position in June 2002, from the temporary position.
Although Boyd had been temporarily promoted again to the position
of Back End Relief operator in September 2002, his performance
was again deemed to be substandard. (Barone Cert. ¶ 15).
Masselli, the Plant Manager of the facility at the time, states,
Unfortunately, Boyd's second attempt at training and
qualifying for the temporary Back End Relief position
was not better than the first and his performance was
again substandard and not acceptable.
(Masselli Cert. ¶ 22).
Based on the foregoing, this Court can not say that Boyd was
qualified for the Back End Relief position. Moreover, the Court
notes that the employee ultimately promoted to the position was
also African-American, and therefore a member of the same
protected class as Boyd. Thus, Plaintiff fails to meet the final
element of the his prima facie case. Plaintiff has, therefore, failed to satisfy his burden of presenting a prima
facie case of discrimination against Owens Corning based on
discrimination in promotion.*fn5
B. Religious Discrimination
Boyd also alleges religious discrimination under Title VII of
the Civil Rights Act of 1964 against Defendant. Boyd claims that
Owens Corning failed to include certain Islamic holidays as paid
days off within Owens Corning's CBA. (Strand Cert. Ex.A at
16-17). Title VII makes it unlawful for an employer to
discriminate against an employee based on the employee's
religion. 42 U.S.C. § 2000e-2(a)(1). The term "religion" includes
"all aspects of religious observances and practices, as well as
beliefs. . . ." 42 U.S.C. § 2000e(j). Owens Corning contends that
Boyd failed to exhaust his administrative remedies with respect
to his claim of religious discrimination under Title VII.
Specifically, Owens Corning argues that Boyd failed to submit his
claim first to the EEOC, in violation of 42 U.S.C. § 2000e-5.
Prior to the institution of an action under Title VII, a
plaintiff must timely file his claim with the EEOC and receive a
right to sue letter from the agency. 42 U.S.C. § 2000e-5. A
timely charge of discrimination with the EEOC is not
jurisdictional, but rather, is comparable to a statute of
limitations. Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393 (1982); Anjelino v. The New York Times Co., 200 F.3d 73, 87
(3d Cir. 1999). Accordingly, claims brought pursuant to Title VII
can be dismissed for failure to exhaust such administrative
remedies. Anjelino, 200 F.3d at 87-88; Knoll v. Springfield
Township Sch. Dist., 699 F.2d 137, 145 (3d Cir. 1983), vacated
on other grounds, 471 U.S. 288 (1985); Santiago,
107 F. Supp. 2d at 528.
In this case, Owens Corning argues that Boyd's charge of
religious discrimination must be dismissed as a matter of law for
failure to exhaust administrative remedies required by 42 U.S.C. § 2000e-5. Boyd's EEOC charge, which alleges race
discrimination, makes no reference to a Title VII religious
discrimination claim. (Strand Cert. Ex.C). He only states as
follows: "I believe that I have been discriminated against by not
being promoted and by being discharged, in violation of the Civil
Rights Act of 1964, as amended (Title VII), and because of my
race (Black)." (Id.). The Court also observes that Boyd marked
only the "Race" box in the "Cause of Discrimination" section of
the EEOC charge. (Id.).
Under Third Circuit precedent, however, a plaintiff is excused
from exhausting such administrative remedies when the acts
alleged in the subsequent suit are fairly within the scope of the
prior EEOC complaint, or the investigation arising therefrom.
Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996) (citing
Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984) (per
curiam)); see also Howze v. Jones & Laughlin Steel Corp.,
750 F.2d 1208, 1212 (3d Cir. 1984) (quoting Ostapowics v.
Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976), cert.
denied, 429 U.S. 1041 (1997)). In Antol, for example, the
Third Circuit held that "an employee's gender discrimination
claim was not subsumed within the appellant's EEOC complaint
based upon disability discrimination." Antol, 82 F.3d at 1295.
In so finding, the Antol Court rejected the appellant's
argument that the disability charge encompassed the gender claim
because an EEOC investigation would have revealed the gender
issues. Id. at 1296. The Court held that "the investigation
focused, quite properly . . . on the gravamen of [appellant's]
complaint disability discrimination. Neither the EEOC nor the
[appellee] were put on notice of a gender discrimination claim."
Boyd is not excused from exhausting his administrative remedies
with respect to his claim under Title VII because his religious
discrimination claim is not within the scope of either the EEOC
charge or its reasonable investigation. Plaintiff Boyd filed a
charge of race discrimination with the EEOC alleging that Owens Corning
discriminated against him by terminating his employment as a Mat
Tender and failed to promote him as a Back End Relief operator.
Boyd's Title VII religious discrimination claim can not be said
to be within the scope of his previously filed race
discrimination charge or "the EEOC investigation which can
reasonably be expected to grow out of the charge of [race]
discrimination." Santiago, 107 F. Supp.2d at 529 (citing Hicks
v. ABT Assocs., Inc., 572 F.2d 960, 966-67 (3d Cir. 1978)). The
facts associated with Boyd's religious identity claim are
separate and distinct from those associated with his racial
discrimination charges. Furthermore, there are no allegations set
forth in the charge that would put the EEOC on notice that
Plaintiff Boyd was also the victim of religious discrimination.
Plaintiff checked only the "Race" box on the EEOC charge and his
allegations filed with the agency refer only to discrimination
based upon race. (Strand Cert. Ex.C). The box for identifying
religious discrimination was not marked and there was nothing in
the body of the EEOC charge that would put the agency on notice
that Plaintiff was a victim of religious discrimination. (Id.).
Thus, it is clear that Boyd is not excused from exhausting his
administrative remedies. Accordingly, the Court finds that Boyd
failed to exhaust his administrative remedies with respect to his
Title VII religious discrimination claim, and, therefore, the
Court shall grant summary judgment on this claim.*fn6 CONCLUSION
For the foregoing reasons, it is on this 12th day of August,
ORDERED that Defendant Owen Corning's motion for summary
judgment is GRANTED with respect to Plaintiff Boyd's Title VII
claims of wrongful termination; and it is further
ORDERED that Defendant is also GRANTED summary judgment on
Plaintiff's Title VII claim of failure to promote based on race,
and it is further
ORDERED that Defendant's motion for summary judgment is also
GRANTED as to Plaintiff's claim of Title VII religious
discrimination; and it is further
ORDERED that Plaintiff's Complaint is hereby DISMISSED. This
case is closed.