ORDER

ROBINSON, U.S. District Judge.

At Wilmington this 14th day of November, 2000, it having come to the court's attention that the Memorandum Opinion dated July 31, 2000 was misprinted;

IT IS ORDERED that the attached Memorandum Opinion shall serve as a corrected copy of said Memorandum Opinion.

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Sonja L. Bray filed this action on July 28, 1998 against defendant L.D. Caulk Dentsply International ("Dentsply"), asserting a claim under the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., for race discrimination. (D.I. 2) Plaintiff subsequently amended her complaint to add a claim of retaliation against Dentsply. (D.I. 29) At all times relevant, plaintiff was a full-time production operator at Dentsply's facility in Milford, Delaware. (D.I. 36, Exh. A at 24-25) Plaintiff had held this position since December 1995. (D.I. 36, Exh. A at 24- 25; Exh. F) In her complaint, plaintiff alleges that Dentsply management improperly punished her for an infraction of company guidelines on the basis of her race and retaliated against her after she filed a charge of race discrimination. (D.I. 2, 29) The court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.

Currently before the court are plaintiff's motion for partial summary judgment (D.I. 34) and Dentsply's motion for summary judgment (D.I. 35). For the following reasons, plaintiff's motion shall be denied and defendant's granted.

II. BACKGROUND

Plaintiff's allegations arise out of incident that took place in early February 1998 and related events occurring thereafter. On February 9, 1998, plaintiff sold two boxes of Girl Scout cookies to a co-worker ("TC"), who paid by check. (D.I. 36, Exh. A at 51-52; D.I. 34, February 11, 1998 Memo to the File) TC placed the cookies in her locker. (D.I. 36, Exh. A at 51-52; D.I. 34, February 11, 1998 Memo to the File) Later that same day, plaintiff informed TC that she had lost the check and asked TC to write her another one. (D.I. 36, Exh. A at 51-52; D.I. 34, February 11, 1998 Memo to the File) TC refused. (D.I. 36, Exh. A at 51-52; D.I. 34, February 11, 1998 Memo to the File) At the end of the day, when TC went to her locker to get her coat, the boxes of cookies were missing. (D.I. 36, Exh. A at 51-52; D.I. 34, February 11, 1998 Memo to the File) TO confronted plaintiff, who admitted to taking the cookies. (D.I. 36, Exh. A at 51-52; D.I. 34, February 11, 1998 Memo to the File) Words were exchanged. (D.I. 36, Exh. A at 51-52; D.I. 34, February 11, 1998 Memo to the File)

Unbeknownst to both plaintiff and TC, a co-worker ("DJ") had overheard their exchanges. (D.I. 36, Exh. A at 51-52; D.I. 34, February 11, 1998 Memo to the File) Concerned that things were getting out of hand, DJ reported plaintiff's conduct to Randy Correia, plaintiff's Department Leader's supervisor, and Carol Craddock, a human resource representative. (D.I. 36, Exh. A at 28-29, 52; D.I. 34, February 11, 1998 Memo to the File) Craddock initiated an investigation into the incident. She interviewed several employees, including TC, DJ, and plaintiff. (D.I. 34, February 11, 1998 Memo to the File) According to Craddock's notes, during her interview with plaintiff on February 12, 1998, plaintiff admitted to taking the cookies but indicated "she had resolved everything with [TC]." (D.I. 34, February 11, 1998 Memo to the File) Plaintiff's conduct was determined to be in violation of Dentsply's Standards of Conduct and Work Rules, which prohibits theft or unauthorized removal of property while on company premises and subjects offenders "to appropriate corrective action." (D.I. 36, Exh. A at 27, Exh. B, ¶ 3, Exh. F) Accordingly, on February 13, 1998, plaintiff was placed on suspension for two (2) days without pay. (D.I. 36, Exh. D)

On February 25, 1998, plaintiff filed a charge of discrimination with the Delaware Department of Labor ("DDOL"). (D.I. 36, Exh. E) In her charge, plaintiff alleged that her suspension was motivated by racial animus. (D.I. 36, Exh. E) Specifically, plaintiff alleged that "co-workers not of [her] race have committed infractions against this policy and have not had the same severity of punishment as [she] har[d]." (D.I. 36, Exh. E)

In addition to filing a charge of discrimination, plaintiff sent a number of letters to Gary Weingarth, a manager at Dentsply's main office, in which she alleged unfair treatment. (D.I. 34, Letter to Weingarth) In one of these letters, plaintiff complained that she had reviewed her personnel file and found it contained an "inaccurate deposition." (D.I. 36, Exh. B ¶ 4 and Exh. C, ¶ 5) Craddock was notified of plaintiff's allegation and began an investigation into the matter. (D.I. 36, Exh. B, ¶ 4)

As part of her investigation, Craddock reviewed plaintiff's personnel file. During that review, Craddock discovered a discrepancy between the information on plaintiff's February 1996 employment application and an employment background report performed by Equifax Employment Services (n/k/a Choice Point) ("Equifax"). (D.I. 36, Exh. B, ¶ 4, Exh. F, Exh. G) Specifically, on her employment application, plaintiff had indicated she had never been convicted of a felony yet the Equifax report indicated a felony conviction in 1992. (D.I. 36, Exh. B, ¶ 4, Exh. F, Exh. C) Craddock reported the discrepancy to Sally Paull, Director of Human Resources. (D.I. 36, Exh. B, ¶ 4, Exh. C, ¶¶ 5-6)

On May 19, 1998, Paull called plaintiff into her office to discuss the discrepancy. (D.I. 36, Exh. A at 85-89; Exh. C, ¶ 7) When confronted with the Equifax report, plaintiff denied that she had ever been convicted of a felony although she admitted to various misdemeanor convictions. (D.I. 36, Exh. A at 85-89; Exh. C, ¶ 7) In order to verify plaintiff's assertion, Paull instructed plaintiff to get a copy of her criminal report from the Delaware Superior Court by Friday of that week. (D.I. 36, Exh. A at 66; Exh. C, ¶ 7) Because plaintiff failed to provide Paull with a copy of her criminal report, Paull contacted the Prothonotary to obtain the required information. (D.I. 36, Exh. C, ¶ 7) The Prothonotary reported that plaintiff's 1992 conviction, in fact, was a misdemeanor. (D.I. 36, Exh. C, ¶¶ 7-8) Having ascertained that the Equifax report was in error, Paull dropped the matter without disciplining plaintiff or giving her any type of warning. (D.I. 36, Exh. A at 86-87, Exh. C, ¶ 8)

On June 1, 1998, plaintiff filed a second charge of discrimination against Dentsply. (D.I. 36, Exh. H) In this charge, plaintiff alleged that Dentsply had retaliated against her for filing the first charge by questioning her about the aforementioned discrepancy. (D.I. 36, Exh. H)

On or about June 24, 1998, plaintiff informed Dentsply management that she would be resigning her employment at the end of July. (D.I. 36, Exh. A at 39; Exh. I) Plaintiff indicated to a variety of individuals varying reasons for her decision; these explanations included, inter alia, that she had a better job offer and her husband had found a better paying job. (D.I. 36, Exh. A at 35-43) On or about June 28, 1998, plaintiff left a message with her department head that she would not be returning to work. (D.I. 36, Exh. A at 41-42)

III. STANDARD OF REVIEW

A court shall grant summary judgment only "when the admissible evidence fails to demonstrate a genuine issue of material fact, and the moving party is entitled to judgment as a matter of law." Wetzel v. Tucker, 139 F.3d 380, 383 n. 2 (3d Cir. 1998) (citing Fed.R.Civ.P. 56(c)) (emphasis added). The moving party bears the burden of proving that no genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10 (1986). "Facts that could alter the outcome are `material,' and disputes are `genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct."Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n. 1 (3d Cir. 1995) (internal citations omitted). If the moving party has demonstrated an absence of material fact, the nonmoving party then "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e)). The court will "view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion."Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). The mere existence of some evidence in support of the nonmoving party, however, will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the nonmoving party on that issue. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)

With respect to summary judgment in discrimination cases, the court's role is "`to determine whether, upon reviewing all the facts and inferences to be drawn therefrom in the light most favorable to the plaintiff, there exists sufficient evidence to create a genuine issue of material fact as to whether the employer intentionally discriminated against the plaintiff.'" Revis v. Slocomb Indus., Inc., 814 F. Supp. 1209, 1215 (D. Del. 1993) (quoting Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir. 1987)

IV. DISCUSSION

A. Race Discrimination

Initially, plaintiff contends that Dentsply's decision to impose a two-day suspension for her infraction of company policy was motivated by racial animus. Title VII prohibits discrimination against an employee:

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 . . .; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race. . . .

Under this framework, a plaintiff must first establish a prima facie case of race discrimination under Title VII. In order to state a prima facie case of race discrimination based on a suspension, a plaintiff must prove: "(1) that he is a member of a protected class; (2) that he suffered some form of adverse employment action; (3) under circumstances that give rise to an inference of unlawful discrimination such as might occur when a person not of the protected class is not suspended." Boykins v. Lucent Techs., Inc., 78 F. Supp.2d 402, 409 (E.D. Pa. 2000) (citing Jones v. School Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999)). The Court of Appeals for the Third Circuit has recognized, however, that the elements of a prima facie case may vary depending on the facts and context of the particular case. Pivirotto v. Innovative Sys. Inc., 191 F.3d 344, 352 (3d Cir. 1999)

Once a plaintiff has established a prima facie case, the burden shifts to the defendant to "clearly set forth through the introduction of admissible evidence" reasons for its actions that, if believed by the trier of fact, would support a finding that unlawful discrimination was not the motivating force behind the adverse employment action. See Burdine, 450 U.S. at 254-55. If the defendant rebuts the prima facie showing by demonstrating legitimate, nondiscriminatory reasons for the adverse employment action, the presumption of discrimination drops from the case, and the plaintiff must "cast sufficient doubt upon the employer's proffered reasons to permit a reasonable factfinder to conclude that the reasons are incredible." Sheridan v. E.I. DuPont de Nemours Co., 100 F.3d 1061, 1072 (3d Cir. 1996) (en banc), cert.denied, 117 S.Ct. 2532 (1997); see also Smith v. Borough of Wilkinsburg, 147 F.3d 272, 280 (3d Cir. 1998) ("[T]he jurors must be instructed that they are entitled to infer, but need not, that the plaintiff's ultimate burden of demonstrating intentional discrimination by a preponderance of the evidence can be met if they find that the facts needed to make up theprima facie case have been established and they disbelieve the employer's explanation for its decision."); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Reeves v. Sanderson Plumbing Prods., Inc., ___ U.S. ___, 120 S.Ct. 2097, 2106 (2000). A plaintiff can demonstrate that there is "sufficient doubt" by showing "`weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reasons for its action [such] that a reasonable factfinder could rationally find them `unworthy of credence.''" Id. (quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (citations omitted) Alternatively, a Title VII plaintiff can defeat a motion for summary judgment by showing "that the reason for the employer's act was discrimination." Bray v. Marriott Hotels, 110 F.3d 986, 990 (3d Cir. 1990)

In the instant action, defendant does not dispute that plaintiff meets the first two elements of the prima facie case but denies that plaintiff has made the specific allegations required to establish the third factor. Defendant, however, mischaracterizes the third prong of the analysis by requiring plaintiff to demonstrate that "members outside the protected group received more favorable treatment." (D.I. 36 at 9) Such a requirement flies in the face of recent Third Circuit case law. The Third Circuit in Matczak v. Franford Candy Chocolate Co., 136 F.3d 933 (3d Cir. 1998), expressly held that a showing of favorable treatment towards employees outside the relevant protected class was not a necessary element for every employment discrimination case. See id. at 939-40. The Third Circuit reiterated its intention in this regard in Pivirotto when, after acknowledging that it had used "some occasionally imprecise language in dicta in certain cases," it explained that allowing a plaintiff to meet her prima facie burden by demonstrating generally that she was subjected to an adverse employment action under circumstances that give rise to an inference of unlawful discrimination was consistent with Third Circuit and Supreme Court precedent. See Pivirotto, 191 F.3d at 357. Thus, the fact that plaintiff in the instant action has failed to provide any evidence that individuals not in the protected class received favorable treatment does not preclude her, as a matter of law, from establishing the existence of a prima facie case.

Nevertheless, plaintiff has not presented any evidence from which an inference of discrimination on the basis of race can be drawn. Plaintiff speculates that race was the motivating factor in her suspension but provides nothing to substantiate that allegation. Speculation alone cannot establish a prima facie case of discrimination. Nor is her disagreement with the severity of the punishment that was meted out sufficient to establish a presumption of discrimination. Short of plaintiff's unsupported conclusory allegations, the record is devoid of anything that indicates her suspension without pay was motivated in any part by racial animus. Therefore, the court finds that plaintiff has failed to satisfy the third element of a prima facie case of race-based discrimination.

Assuming, arguendo, that plaintiff could establish a prima facie case, the court finds that plaintiff has not rebutted the legitimate, nondiscriminatory justification offered by Dentsply for suspending her. It is undisputed that plaintiff removed the boxes of cookies from her co-worker's locker without permission and that such unauthorized removal of property is in contravention of Dentsply's rules governing workplace conduct, subjecting the violator to appropriate corrective action. Because Dentsply has offered a legitimate, nondiscriminatory justification for its disciplinary action, the burden shifts to plaintiff to offer evidence of pretext. See Bray, 110 F.3d at 990. Having carefully reviewed the record, the court finds that plaintiff has offered no such evidence. Accordingly, plaintiff has failed to "cast sufficient doubt" upon Dentsply's proffered reason for plaintiff's suspension to enable a rational trier of fact to find that Dentsply discriminated against plaintiff. The court shall grant Dentsply's motion for summary judgment on plaintiff's race discrimination claim.

B. Retaliation

Plaintiff further alleges that Dentsply officials retaliated against her after she filed the charge of discrimination with the DDOL. Title VII prohibits discrimination against an employee who has exercised her rights under the Act:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because [s]he [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because [s]he has made a charge, testified, assisted, or participated, in any manner in an investigation, proceeding, or hearing under this title.

As with a race-based discrimination claim, a plaintiff claiming retaliation must first establish a prima facie case for retaliation under Title VII. In order to do so, a plaintiff must demonstrate by a preponderance of the evidence that: (1) she engaged in protected activity; (2) that the defendant took adverse employment action against her; and (3) that a causal link exists between the protected activity and the adverse action. See Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1999). Once the plaintiff has established a prima facie case, the defendant must state a clear and reasonably specific legitimate, non-discriminatory reason for the adverse employment action.See Olson v. General Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996). If the defendant does so, the presumption of discrimination drops from the case, and the plaintiff must prove that the defendant's proffered reasons are not the "true reasons" for its decision, but are merely pretext for discrimination. Id.

In the instant action, Dentsply does not dispute that plaintiff engaged in protected activity within the purview of Title VII when she filed the charge of discrimination. Dentsply argues, however, that the retaliatory act alleged by plaintiff does not amount to "adverse employment action" as that term has been defined by the Third Circuit. In Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997), the Third Circuit held that the "adverse employment element" of a retaliation claim requires that the "retaliatory conduct rise to the level of a violation of 42 U.S.C. § 2000e-2 (a)(1) or (2)." Id. at 1300-01. That provision makes it "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. . . .;

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual's race. . . .

In the instant action, plaintiff alleges that Dentsply officials retaliated against her when at such a late date in her employment they asked her to produce documentation verifying that she had not been convicted of a felony. Such an action does not constitute an "adverse employment action" as that term has been defined by the Third Circuit. Plaintiff does not allege that any stigma attached as a result of defendant's inquiry into her criminal record. Nor has she claimed that the inquiry resulted in any change in her employment conditions, privileges, or opportunities of employment. Moreover, even if such an act satisfied the standard set forth above, plaintiff has failed to establish a causal connection between defendant's conduct and her protected activity. That Dentsply officials requested the documentation several months after plaintiff filed a charge of discrimination is insufficient to establish an inference of causation. See Krouse, 126 F.3d at 503 (stating that timing must be unusually suggestive to establish causation and that under the facts before it, "the timing of the allegedly retaliatory employment action cannot, standing alone, support a finding of causal link"). The court finds, therefore, that plaintiff has not established that she suffered an adverse employment action with respect to Dentsply's inquiry into her criminal record.

V. CONCLUSION

For the reasons stated above, the court concludes that plaintiff has failed to establish the essential elements of her claims of race discrimination and retaliation under Title VII. In addition, after defendant satisfied its burden of production by articulating a legitimate, non-discriminatory reason for suspending plaintiff, plaintiff failed to satisfy her burden of showing that defendant's articulated reason was a pretext for race-based discrimination. Accordingly, plaintiff's motion for summary judgment (D.I. 34) shall be denied and defendant's motion for summary judgment (D.I. 35) shall be granted. An appropriate order shall issue.