NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 24-1126 __________
TERRY P. DOR, Appellant
v.
TD BANK; LENORE GORDON; KEITH NISBET ____________________________________
On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 2-21-cv-18955) District Judge: Honorable Brian R. Martinotti ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) June 26, 2024
Before: KRAUSE, MATEY, and CHUNG, Circuit Judges
(Opinion filed June 28, 2024) ___________
OPINION* ___________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Pro se Appellant Terry P. Dor appeals the District Court’s grant of summary
judgment in favor of the Defendants. For the reasons that follow, we will affirm.
Dor filed his amended complaint under Title VII of the Civil Rights Act of 1964,
and alleged that the Defendants discriminated against him on the basis of “race, national
origin, and color.” Dor identified his race as Black and Indian, and identified his national
origin as “a United States citizen, African American, Caribbean American, and Haitian
American.” He alleged that while he was working for Defendant TD Bank, he was
“denied trainings, fair compensation bonus, transfer to other departments, transfer to
other offices, networking opportunities, proper working equipment, and verbally
disrespected because of [his] race, national original, and color.” He also stated that he
was “bullied very badly” by Defendant Lenore Gordon, and that he was “struck down at
every opportunity to learn or advance” by Gordon and Defendant Keith Nisbet. Dor
reported to Gordon, who reported to Nisbet. Following discovery, the Defendants filed a
motion for summary judgment, which was granted by the District Court. Dor timely filed
a notice of appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s grant of summary judgment, applying the same standard as the
District Court, and we may affirm on any basis supported by the record. See Blunt v.
Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).
2 Pursuant to Title VII, it is unlawful for an employer “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). To prevail on a Title VII
claim of employment discrimination, “the plaintiff must first establish a prima facie case
of discrimination by showing that: (1) s/he is a member of a protected class; (2) s/he was
qualified for the position s/he sought to attain or retain; (3) s/he suffered an adverse
employment action; and (4) the action occurred under circumstances that could give rise
to an inference of intentional discrimination.” Makky v. Chertoff, 541 F.3d 205, 214 (3d
Cir. 2008) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
If the plaintiff clears this first hurdle, then the burden shifts to the defendant “to
rebut the presumption of discrimination by producing evidence” that the defendant’s
actions were taken “for a legitimate, nondiscriminatory reason.” Tex. Dep’t of Cmty.
Affs. v. Burdine, 450 U.S. 248, 254 (1981). After this point, the plaintiff has “the
opportunity to demonstrate that the proffered reason was not the true reason for the
employment decision,” and “may succeed in this either directly by persuading the court
that a discriminatory reason more likely motivated the employer or indirectly by showing
that the employer’s proffered explanation is unworthy of credence.” Id. at 256.
The District Court noted that the parties did not dispute that Dor satisfied the first
and third elements of establishing a prima facie case of discrimination, because he is a
3 member of a protected class (Black and Indian) and he suffered an adverse employment
action (termination from his position with TD Bank). The District Court determined that
Dor satisfied the second element of this test as well, in that he was qualified for his
position. However, the District Court concluded that Dor failed to establish the fourth
element because his termination did not occur under circumstances giving rise to an
inference of unlawful discrimination. With respect to this issue, the District Court noted
that evidence in the record supported the Defendants’ contention that Dor’s deficient
performance, rather than any circumstances giving rise to an inference of unlawful
discrimination, was the reason for his termination.
The District Court also noted that Dor did not dispute the facts presented by the
Defendants showing that there was no evidence of proper comparators for the purposes of
determining whether there was an inference of unlawful discrimination. It further
determined that although Dor alleged that he suffered various acts that comprise
circumstantial evidence giving rise to an inference of unlawful discrimination, he did not
cite to any evidence in support of these allegations. Consequently, the District Court
concluded that Dor’s “conclusory allegations and unsworn statements unsupported by
record evidence are insufficient to raise a material dispute of fact and survive summary
judgment.” Moreover, it noted the undisputed fact that Gordon is the same race (Black)
and national origin (Caribbean American) as Dor, and that this fact weighed against an
inference of discrimination.
4 The District Court ultimately determined that Dor failed to meet his “burden to
provide some affirmative evidence, not just mere allegations or Plaintiff’s say-so, to
establish a prima facie case of intentional discrimination and to show that there is a
genuine dispute for trial.” It therefore concluded that summary judgment was warranted.
The District Court also determined that summary judgment was appropriate with respect
to the claims against Gordon and Nisbet because (1) individual employees cannot be held
liable under Title VII and (2) in any case, the claims against these Defendants are
redundant since Dor’s former employer, TD Bank, is also a Defendant in the case.
In his appellate brief, Dor states that he is “looking to appeal [the District Court’s
order] because the court did not fully read Plaintiff’s Opposition to Defendants’
Summary Judgment Motion.” He also alleges that a similarly situated comparator under
TD Bank’s employ—Mr. Scott Mullarkey, who is Caucasian—received a promotion
shortly after Dor’s termination and this fact gives rise to an inference of unlawful
discrimination, as do the weighting of Mullarkey’s and Dor’s portfolio investment
reviews.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 24-1126 __________
TERRY P. DOR, Appellant
v.
TD BANK; LENORE GORDON; KEITH NISBET ____________________________________
On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 2-21-cv-18955) District Judge: Honorable Brian R. Martinotti ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) June 26, 2024
Before: KRAUSE, MATEY, and CHUNG, Circuit Judges
(Opinion filed June 28, 2024) ___________
OPINION* ___________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Pro se Appellant Terry P. Dor appeals the District Court’s grant of summary
judgment in favor of the Defendants. For the reasons that follow, we will affirm.
Dor filed his amended complaint under Title VII of the Civil Rights Act of 1964,
and alleged that the Defendants discriminated against him on the basis of “race, national
origin, and color.” Dor identified his race as Black and Indian, and identified his national
origin as “a United States citizen, African American, Caribbean American, and Haitian
American.” He alleged that while he was working for Defendant TD Bank, he was
“denied trainings, fair compensation bonus, transfer to other departments, transfer to
other offices, networking opportunities, proper working equipment, and verbally
disrespected because of [his] race, national original, and color.” He also stated that he
was “bullied very badly” by Defendant Lenore Gordon, and that he was “struck down at
every opportunity to learn or advance” by Gordon and Defendant Keith Nisbet. Dor
reported to Gordon, who reported to Nisbet. Following discovery, the Defendants filed a
motion for summary judgment, which was granted by the District Court. Dor timely filed
a notice of appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over the District Court’s grant of summary judgment, applying the same standard as the
District Court, and we may affirm on any basis supported by the record. See Blunt v.
Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).
2 Pursuant to Title VII, it is unlawful for an employer “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). To prevail on a Title VII
claim of employment discrimination, “the plaintiff must first establish a prima facie case
of discrimination by showing that: (1) s/he is a member of a protected class; (2) s/he was
qualified for the position s/he sought to attain or retain; (3) s/he suffered an adverse
employment action; and (4) the action occurred under circumstances that could give rise
to an inference of intentional discrimination.” Makky v. Chertoff, 541 F.3d 205, 214 (3d
Cir. 2008) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
If the plaintiff clears this first hurdle, then the burden shifts to the defendant “to
rebut the presumption of discrimination by producing evidence” that the defendant’s
actions were taken “for a legitimate, nondiscriminatory reason.” Tex. Dep’t of Cmty.
Affs. v. Burdine, 450 U.S. 248, 254 (1981). After this point, the plaintiff has “the
opportunity to demonstrate that the proffered reason was not the true reason for the
employment decision,” and “may succeed in this either directly by persuading the court
that a discriminatory reason more likely motivated the employer or indirectly by showing
that the employer’s proffered explanation is unworthy of credence.” Id. at 256.
The District Court noted that the parties did not dispute that Dor satisfied the first
and third elements of establishing a prima facie case of discrimination, because he is a
3 member of a protected class (Black and Indian) and he suffered an adverse employment
action (termination from his position with TD Bank). The District Court determined that
Dor satisfied the second element of this test as well, in that he was qualified for his
position. However, the District Court concluded that Dor failed to establish the fourth
element because his termination did not occur under circumstances giving rise to an
inference of unlawful discrimination. With respect to this issue, the District Court noted
that evidence in the record supported the Defendants’ contention that Dor’s deficient
performance, rather than any circumstances giving rise to an inference of unlawful
discrimination, was the reason for his termination.
The District Court also noted that Dor did not dispute the facts presented by the
Defendants showing that there was no evidence of proper comparators for the purposes of
determining whether there was an inference of unlawful discrimination. It further
determined that although Dor alleged that he suffered various acts that comprise
circumstantial evidence giving rise to an inference of unlawful discrimination, he did not
cite to any evidence in support of these allegations. Consequently, the District Court
concluded that Dor’s “conclusory allegations and unsworn statements unsupported by
record evidence are insufficient to raise a material dispute of fact and survive summary
judgment.” Moreover, it noted the undisputed fact that Gordon is the same race (Black)
and national origin (Caribbean American) as Dor, and that this fact weighed against an
inference of discrimination.
4 The District Court ultimately determined that Dor failed to meet his “burden to
provide some affirmative evidence, not just mere allegations or Plaintiff’s say-so, to
establish a prima facie case of intentional discrimination and to show that there is a
genuine dispute for trial.” It therefore concluded that summary judgment was warranted.
The District Court also determined that summary judgment was appropriate with respect
to the claims against Gordon and Nisbet because (1) individual employees cannot be held
liable under Title VII and (2) in any case, the claims against these Defendants are
redundant since Dor’s former employer, TD Bank, is also a Defendant in the case.
In his appellate brief, Dor states that he is “looking to appeal [the District Court’s
order] because the court did not fully read Plaintiff’s Opposition to Defendants’
Summary Judgment Motion.” He also alleges that a similarly situated comparator under
TD Bank’s employ—Mr. Scott Mullarkey, who is Caucasian—received a promotion
shortly after Dor’s termination and this fact gives rise to an inference of unlawful
discrimination, as do the weighting of Mullarkey’s and Dor’s portfolio investment
reviews. He claims that the “court failed to identify [his] similar[ly] situated comparator
based on too specific on job title,” but does not present specific comparators aside from
the previously mentioned Mullarkey. He contends that “as long as we are in the same
department, performing the same functions and reporting to Ms. Gordon should be
adequate enough to show similar[ly] situated comparators.”
5 Dor also characterizes the Defendants’ reason for termination as “failure to
complete objective (1) outlined in the Performance Improvement Plan (PIP) – Copy or
bcc Ms. Gordon on 3rd party communication,” and then argues that this reason was false
but does not cite to the record in support of this contention. With respect to his alleged
poor performance, he claims that he satisfied the requirements of his Performance
Improvement Plan, and that Gordon both “created a fictional story” about Dor’s
performance and “did not check [his] end of year work.” He further argues that his case
is supported by a statement from the president and CEO of TD Bank indicating that
employees would not be terminated during the COVID-19 pandemic.
Firstly, we reject out of hand Dor’s allegation that the District Court did not read
his submitted documents. The District Court explicitly stated that it “reviewed and
considered Plaintiff’s summary judgment submissions and viewed them in a light most
favorable to Plaintiff,” despite the fact that Dor “failed to comply with the applicable
federal and local rules for summary judgment because while he submitted over 1,400
pages of exhibits . . . he did not cite to any record evidence or to either party’s statement
of material facts.”
Next, we turn to Dor’s allegation regarding similarly situated comparators. He
argues that the “title of ‘Asset Manager’ is adequate enough as all Asset Managers report
to Ms. Gordon regardless of level or seniority,” but this differentiation based on level or
seniority belies the contention that one unspecified asset manager could be an adequate
6 comparator for another. Turning to Dor’s argument regarding Mullarkey, the District
Court concluded that Dor had failed to cite to any evidence in support of his claim and
that, even if he had done so, he failed to show how this allegation gives rise to an
inference of unlawful discrimination. Moreover, the District Court noted that Dor did not
dispute that: (1) Mullarkey had a different title; (2) Mullarkey moved departments before
Dor worked at the Bank; and (3) there is no evidence that Mullarkey had any
performance issues similar to Dor’s. Dor does not refute these facts in his appellate brief.
Consequently, we concur with the District Court’s conclusions regarding comparators
and Dor’s failure to present circumstances that would give rise to an inference of
discrimination.
With respect to Dor’s contention regarding the statement from TD Bank’s
president and CEO, the relevant section indicates that TD Bank’s policy was that there
was to be “no job losses in 2020 as a result of COVID-19.” Dor appears to contend that
TD Bank violated this policy for discriminatory reasons, but fails to support such an
argument, especially since the statement relates to job losses due to COVID-19, not job
losses due to poor performance. Consequently, Dor fails to show how this statement
gives rise to an inference of unlawful discrimination.
Finally, Dor provides no support from the record for his allegations regarding
Gordon’s actions against him and his statements about the Defendants’ claims regarding
his alleged poor performance. Furthermore, it appears that he is attempting to show that
7 the Defendants’ reason for his termination was pretextual, but the District Court did not
analyze this issue as Dor failed to establish his prima facie case of discrimination. To the
extent he is attempting to do so here, he fails to demonstrate how these unsupported
claims amount to circumstances that give rise to an inference of discrimination.
In sum, we agree with the District Court’s conclusions that Dor failed to establish
a prima facie case of discrimination and that summary judgment was therefore
appropriate. Accordingly, we will affirm the judgment of the District Court.