CPA Nina Shahin v. State of DE , 424 F. App'x 90 ( 2011 )

CLD-153 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-4784
___________
CPA NINA SHAHIN,
Appellant
v.
STATE OF DELAWARE;
DEPARTMENT OF FINANCE, DIVISION OF ACCOUNTING
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 07-cv-00644)
District Judge: Honorable Gregory M. Sleet
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 31, 2011
Before: RENDELL, FUENTES and SMITH, Circuit Judges
(Opinion filed: April 21, 2011)
_________
OPINION
_________
PER CURIAM
Nina Shahin, proceeding pro se, appeals the District Court‟s order denying her
motion for summary judgment and granting the defendants‟ motion for summary
judgment. For the following reasons, we will summarily affirm.
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In October 2007, Shahin filed an employment discrimination complaint in the
United States District Court for the District of Delaware. She alleged that the Delaware
Department of Finance (the “State”) did not hire her for several accountant positions
because of her age and national origin. She brought her claims pursuant to Title VII of
the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment
Act (“ADEA”). As relief, Shahin sought “the maximum allowed by law.” After
conducting discovery, the parties filed cross-motions for summary judgment. The
District Court granted the State‟s motion, holding that the State was immune from suit
under the ADEA and that Shahin had not established a prima facie case of discrimination
under Title VII.1 Shahin appealed.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. “This court reviews
the District Court‟s decision resolving cross-motions for summary judgment de novo.”
Startzell v. City of Phila., 533 F.3d 183, 192 (3d Cir. 2008). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In
making this determination, we must view the facts in the light most favorable to the
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The District Court also denied Shahin‟s pending motions to extend the discovery
deadline, to compel the defendants to answer an interrogatory question, and for sanctions.
To the extent that Shahin challenges these denials, we conclude that the District Court did
not abuse its discretion. Gallas v. Supreme Court of Pa., 211 F.3d 760, 778 (3d Cir.
2000) (noting that review of District Court‟s management of discovery is for abuse of
discretion); Luzadder v. Depatch Oven Co., 834 F.2d 355, 360 (3d Cir.1987) (holding
that this Court reviews the denial of a motion for sanctions for abuse of discretion). The
authorized discovery period had been closed for over a year when Shahin sought to
extend the discovery deadline; the interrogatory question at issue was not relevant to
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nonmoving party and draw all inferences in that party‟s favor.” Stratechuk v. Bd. of
Educ., South Orange-Maplewood Sch. Dist., 587 F.3d 597, 603 (3d Cir. 2009) (internal
quotation marks omitted).
Shahin alleged that the State discriminated against her on the basis of age, in
violation of the ADEA. The ADEA prohibits employers from refusing to hire persons
because of their age. 29 U.S.C. § 623(a)(1). The Act includes in its definition of
employer “a State or political subdivision of a State and any agency . . . of a state.” 29
U.S.C. § 630(b). The Supreme Court has held, however, that the ADEA does not
abrogate the states‟ Eleventh Amendment immunity to suits by private individuals for
damages. Kimel v. Fl. Bd. of Regents, 528 U.S. 62, 91 (2000). The defendants here are
the State and one of its agencies, the Department of Finance. Because the defendants
have not waived their sovereign immunity under the Eleventh Amendment, the District
Court properly dismissed Shahin‟s ADEA claim.
We also agree with the District Court that Shahin failed to establish an adequate
prima facie case of discrimination under Title VII. Title VII prohibits discriminatory
employment practices based upon an individual‟s “race, color, religion, sex, or national
origin.” 42 U.S.C. 2000e-2(a)(1). A plaintiff carries the initial burden of establishing a
prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). To
establish a prima facie case, Shahin must demonstrate that: 1) she belongs to a protected
class; 2) she was qualified for the position; 3) she was subject to an adverse employment
Shahin‟s claims; and the motion for sanctions, in which Shahin argued that defense
counsel misinterpreted the law, was without merit.
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action; and 4) the adverse action was under circumstances giving rise to an inference of
discrimination. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003). If Shahin
establishes a prima facie case, the State must provide a legitimate, non-discriminatory
reason for the adverse employment action. Jones v. Sch. Dist. of Philadelphia, 198 F.3d
403, 410 (3d Cir. 1999). If the State is able to proffer such a reason, Shahin must show
that it is a pretext for discrimination. Id.
Shahin alleged that she was not hired because she is Ukrainian. Importantly,
however, she did not present sufficient evidence of circumstances that raise an inference
of discriminatory action. Sarullo, 352 F.3d at 797. Shahin had applied for two positions
as a State Accountant II, two positions as a State Accountant IV, and one position as a
State Accountant V. Notably, however, the record does not reveal the national origin of
the other applicants for those positions.2 In support of her claim, Shahin alleged that a
written test for the State Accountant IV position was “utilized as a measure to eliminate
her as a discriminatory act . . . .” Although Shahin complained that the “test was
introduced after the advertisement [for the job] was placed,” she failed to explain how the
test was discriminatory. In her motion for summary judgment, Shahin relied on general
claims that the State Accountant positions were filled by “internal candidates with . . .
lesser qualifications,” by “American citizens,” and by individuals with “connections to
the friends and family of [Delaware] legislators.” These conclusory allegations, however,
2
According to the defendants‟ answers to interrogatories, the State Accountant II
positions were filled by white females over age forty, the State Accountant IV positions
were filled by a black female under forty and an Asian female under forty, and the State
Accountant V position was filled by a white female over forty.
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do not establish a “causal nexus between [her] membership in a protected class and the
decision to not []hire [her].” Sarullo, 352 F.3d at 798; see also Espinoza v. Farah Mfg.
Co., Inc., 414 U.S. 86, 89 (1973) (stating that “Congress did not intend the term „national
origin‟ to embrace citizenship requirements.”). Shahin also claimed that “she was asked
by an interviewer what her [n]ational [o]rigin was after the interview had concluded.”
The District Court concluded that the question “raise[d] a slight specter of discriminatory
intent.” Notably, however, there is no indication in the record that the interviewer who
asked the question was involved in the decision not to hire Shahin. Under these
circumstances, we agree that this isolated question does not establish a prima facie case
of discrimination. Cf. Gagne v. Northwestern Nat‟l Ins. Co., 881 F.2d 309, 314-16 (6th
Cir. 1989) (holding that supervisor‟s “single, isolated discriminatory comment” unrelated
to the decisional process was insufficient to avoid summary judgment for the defendant).
Even if Shahin established a prima facie case, the District Court correctly
concluded that her discrimination claim would nonetheless fail. The State articulated a
legitimate, non-discriminatory reason for its decision not to hire Shahin. In their answers
to interrogatories, the State demonstrated that the individuals hired for the State
Accountant positions had consistent work histories and numerous years of accounting
and state employment experience.3 By contrast, Shahin‟s resume, which was attached to
3
For instance, one of the State Accountant II positions was filled by a person who had
been employed by the state since 1981, and who had been performing accounting work
since 1983. The other individual selected for that position had been a state employee
since 1995 and had worked in accounting since 1999. The two people hired for the State
Accountant IV positions had both worked for state agencies and had undergraduate
accounting degrees, one held an MBA and possessed five years of experience as a state
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her answers to interrogatories, indicated that while she had accounting degrees and
experience, she had never worked for the state and not maintained employment with one
company for more than two years. Furthermore, Shahin failed to show that the State‟s
legitimate, non-discriminatory reason for not hiring her was a pretext for discrimination.
To make a showing of pretext, Shahin would have to point “to some evidence, direct or
circumstantial, from which a fact-finder would 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.” See Sheridan v. DuPont de Nemours & Co., 100 F.3d 1061, 1067 (3d Cir. 1996)
(en banc) (citing Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). In this connection,
Shahin again relies on her theory that the State hired individuals with political
connections. But this allegation, which is primarily based on sheer speculation, is not
sufficient to refute the State‟s explanation of why Shahin was not hired. See Sarullo, 352
F.3d at 800.
Finally, Shahin suggested that she was not hired in retaliation for filing previous
charges of discrimination. To advance a prima facie case of retaliation under Title VII, a
plaintiff must show that: (1) she engaged in a protected employee activity; (2) the
employer took an adverse employment action after or contemporaneous with the
employee‟s protected activity; and (3) a causal link exists between the employee‟s
auditor, and the other had five years of non-state experience as a senior accountant with a
CPA firm. The individual hired for the State Accountant V position also had an
undergraduate accounting degree, was a CPA, had previously worked in the State
Auditor‟s Office, and had worked for a CPA firm for 16 years.
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protected activity and the employer‟s adverse action. See Abramson v. William Paterson
Coll. of NJ, 260 F.3d 265, 286 (3d Cir. 2001). Shahin did not demonstrate that a causal
link existed between her prior complaints of discrimination and the State‟s decision not to
hire her. Significantly, Shahin provided no details about the charges of discrimination,
such as when they were filed, and there was no evidence that the individuals involved in
the hiring process had any knowledge of those prior charges. Marra v. Philadelphia
Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007) (holding that a plaintiff may establish the
requisite causal connection by showing a close temporal proximity between the protected
activity and the alleged discriminatory conduct, or by submitting “circumstantial
evidence . . . that give[s] rise to an inference of causation.”). Without any evidence to
support a finding of a causal connection, we conclude that Shahin failed to establish a
prima facie case of retaliation, and summary judgment in favor of the State was proper on
this claim as well.
For the foregoing reasons, we conclude that no substantial question is presented by
this appeal. See I.O.P. 10.6. Accordingly, we will summarily affirm the District Court‟s
judgment.
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