Morrissey v. Luzerne County Community College

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
10-19-2004
Morrissey v. Luzerne Comm
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4346
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 03-4346
__________
MARY ANN MORRISSEY
Appellant,
v.
LUZERNE COUNTY COM MUNITY COLLEGE; RICHARD AMICO,
Individually and as Supervisor of LCCC,
Appellees.
__________
On Appeal from the United States District Court
For the Middle District of Pennsylvania
(Civ. A. No. 02-1511)
District Judge: Honorable James M. Munley
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 28, 2004
___________
Before: ROTH, BARRY, and GARTH, Circuit Judges
(Opinion Filed: October 19, 2004)
__________
OPINION
__________
1
Garth, Circuit Judge:
This appeal requires us to decide whether Mary Ann Morrissey introduced
sufficient evidence to survive summary judgment in her age and gender discrimination
and retaliation suit against Luzerne County Community College (“LCCC”) and Richard
Amico, individually and as supervisor of LCCC. The District Court concluded that she
did not, finding that she failed to present evidence of discriminatory intent. We will
affirm.
I.
Because we write exclusively for the benefit of the parties who are well acquainted
with the facts and procedural posture of the present action, we will recount only those
matters relevant to the issues before us. Morrissey, who is a female over sixty years of
age, was a full-time science department technician at LCCC during the relevant time
period. In December 1999, Morrissey applied for an Instruction Support Assistant
(“ISA”) position with LCCC. On May 12, 2000, after completing several interviews,
Morrissey received a letter informing her that she had been selected for the position.
However, in June 2000, Richard Amico, Associate Dean of Human Resources,
informed Morrissey that a complaint had been filed regarding the filling of the ISA
position due to the procedure followed in the hiring process. LCCC policy granted
unsuccessful candidates the right to appeal hiring decisions to the President of the
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college.1
In the instant case, the complaint, filed by another LCCC employee, Michael
Hrinko, alleged that the search committee used criteria (interpersonal skills) not
mentioned in the job description or the vacancy announcement.2 LCCC’s then-President
Jon Larson requested that the process be reviewed. Amico subsequently drafted a report
on the initial job search process, noting that Hrinko’s appeal was based on (1) his
possession of both the “minimum position qualifications” and better position
qualifications than Morrissey and (2) his lack of knowledge “of any basis upon which a
finding could be made that Ms. Morrissey demonstrated interpersonal and problem
solving skills that are critical to the success of this position.” A154. The report
concluded that, although there was no basis to Hrinko’s statement that he was better
qualified to fulfill the position requirements than Morrissey, he was nonetheless “correct
in his assertion that “the search committee used criteria (interpersonal skills) not
1
LCCC’s Employee Recruitment, Search and Selection Procedures (Amended June 27,
2000) provides, in pertinent part:
Applicants who wish to appeal hiring decisions may do so by contacting the Human
Resources Department within ten (10) workdays of notification of non-selection. The
Associate Dean of Human Resources will promptly schedule a meeting with the President
to hear the applicant’s appeal. The President may take action to terminate the search,
temporarily rescind an appointment, and/or re-institute a new search if the President is
persuaded that the applicant has presented a basis warranting such actions.
A328.
2
Hrinko complained, inter alia, that “I am unaware of any basis upon which a finding
could be made that Ms. Morrissey ‘demonstrated better interpersonal and problem solving skills
that are critical to the success of this position.’” A150.
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mentioned in the job description, nor the vacancy announcement.” A157. After review
of Amico’s report, President Larson recommended that the search be terminated and a
new search instituted. Larson noted that:
while it appears to me that the search committee has selected the most qualified
candidate for the position, Mr. Hrinko’s appeal appears to be justified since the
candidate was not selected based on the merit of her qualifications exactly as they
are contained in the job vacancy positing.
A183. As a result, the position of ISA was posted again in July 2000.
After interviews for the second posting of the ISA position, another candidate,
Mark Choman, who was not a candidate in the first posting, was selected for the position.
Choman possessed more technical background, more experience and was the best
qualified of the candidates for the position, inasmuch as he was ranked significantly
higher after the interviews and presentation than Morrissey or any other candidate.
In March 2003, Morrissey retired from LCCC, citing health problems and a
hostile work environment.
Morrissey filed her seven-count complaint on August 27, 2002 in the District
Court for the Middle District of Pennsylvania, alleging age and gender discrimination and
retaliation in contravention of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000et seq. (“Title VII”), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
(“ADEA”), and the Pennsylvania Human Relations Act, 43 P A. C ONS. S TAT. A NN. § 951
et seq. (“PHRA”), as well as a violation of her Fourteenth Amendment rights pursuant to
42 U.S.C. § 1983. The District Court granted LCCC’s motion for summary judgment on
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all counts. Morrissey then filed a timely appeal.
Our review of a district court’s grant of summary judgment is plenary, and we are
required to apply the same test the district court should have utilized initially. Chipollini
v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987) (en banc). W e are required to
examine the evidence of record in the light most favorable to Morrissey, as the party
opposing summary judgment, and resolve all reasonable inferences in her favor.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “This
standard is applied with added rigor in employment discrimination cases, where intent
and credibility are crucial issues.” Stewart v. Rutgers, The State University, 120 F.3d
426, 431 (3d Cir. 1997) (quoting Robinson v. PPG Indus. Inc., 23 F.3d 1159, 1162 (7th
Cir. 1994).
The District Court had subject matter jurisdiction over the federal claims pursuant
to 28 U.S.C. § 1331 and supplemental jurisdiction over the PHRA claims pursuant to 28
U.S.C. § 1367(a). We have jurisdiction under 28 U.S.C. § 1291.
II.
We turn first to Morrissey’s age and gender discrimination claims under the
ADEA, the PHRA, and Title VII. Morrissey contends that both her age and gender
discrimination claims should have survived summary judgment under the McDonnell
Douglas indirect evidence standard. She further contends that her age discrimination
claims should, in the alternative, have survived summary judgment under the direct
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evidence standard enunciated in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
A. McDonnell Douglas
Disparate treatment claims brought under Title VII, the ADEA and the PHRA are
analyzed using the familiar three-step framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).3 Under this analysis, (step one) the plaintiff must first make a
prima facie showing of discrimination by establishing that (i) she belongs to a protected
class; (ii) she applied for and was qualified for a job the employer was trying to fill; (iii)
though qualified, she was rejected; and (iv) circumstances give rise to an inference of
unlawful discrimination such as might occur when the position is filled by a person not of
the protected class. Jones v. School District of Philadelphia, 198 F.3d 403 (3d Cir. 1999).
Step two: once the plaintiff has established a prima facie case of discrimination the
burden shifts to the defendant “to articulate some legitimate nondiscriminatory reason for
the employee’s rejection.” McDonnell Douglas, 411 U.S. at 802. Step three: the burden
then shifts back to the plaintiff who must show that the nondiscriminatory reason
articulated by the defendant is in fact a pretext for discrimination. Id. at 804.
In this appeal, we find it unnecessary to consider steps one and two of the
McDonnell Douglas scheme. Step one is not contested, and it is clear that LCCC
satisfied step two by proffering a legitimate nondiscriminatory reason for its failure to
3
See Narin v. Lower Merion Sch. Dist., 206 F.3d 323, 331 (3d Cir. 2000) (using the
McDonnell Douglas framework in an ADEA context); Gomez v. Allegheny Health Servs., Inc.,
71 F.3d 1079, 1084 (3d Cir.1995) (stating that PHRA claims are analyzed under McDonnell
Douglas “consistently with interpretations of Title VII”).
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promote Morrissey, i.e., that it followed established procedures in terminating the first
search and conducting a new search based on a clarified job description, which resulted in
the hiring of the most qualified candidate. At issue here, then, is whether Morrissey
satisfied her burden of showing that LCCC’s proffered reason for the adverse
employment action was not the true reason for the decision but was instead pretextual.
To avoid summary judgment in a Title VII or ADEA action after the employer has
proffered a legitimate nondiscriminatory reason for an adverse employment action, the
plaintiff (here Morrissey) must produce evidence which: (1) casts sufficient doubt upon
each proffered reason so that a fact finder could reasonably conclude that each reason was
fabrication, or (2) allows a fact finder to infer that discrimination was more likely than not
a motivating or determinative cause of action. See Fuentes v. Perskie, 32 F.3d 759 (3d
Cir. 1994). Instead of pointing to evidence from which a factfinder could reasonably
conclude that discrimination was the more likely cause of her failure to receive the
promotion, M orrissey principally tries, pursuant to the first Fuentes prong, to cast doubt
on LCCC’s explanation.
To discredit the employer’s proffered reason, the plaintiff cannot merely show that
“the employer’s decision was wrong or mistaken.” Fuentes, 32 F.3d at 765. Rather, the
plaintiff must demonstrate “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them unworthy of credence.” Id.-7-
(citations omitted). Here, Morrissey claims she has cast doubt on LCCC’s legitimate
nondiscriminatory reason by establishing that (1) the search could not be terminated since
she was already selected; (2) Hrinko never complained that the original job posting failed
to contain a specific notation of “interpersonal skills” and (3) there was nothing wrong
with the first job search. We address each assertion seriatim.
First, the record plainly indicates that, upon an appeal from any hiring decision, the
president “may take action to terminate the search, temporarily rescind an appointment,
and/or re-institute a new search.” A328. Clearly, then, President Larson’s decision to re-
institute a new search did not run afoul of established hiring procedures. Even so,
Morrissey argues that LCCC’s decision to grant the appeal was virtually unprecedented,
thus rendering it implausible, inconsistent, contradictory or weak. We are most hesitant,
however, to find a decision inconsistent with an employer’s usual mode of operation
where that decision is fully consistent with written policy. Absent additional evidence
revealing the empty formalism of LCCC’s compliance with its procedures, the mere fact
that LCCC rarely, if ever, granted appeals is insufficient, in and of itself, to give rise to a
reasonable inference of discriminatory motive.
Second, the record contradicts Morrissey’s assertion that Hrinko never complained
about the failure of the first job posting to refer to interpersonal skills. Hrinko did in fact
make such an allegation, and Amico’s report, which was submitted to President Larson,
found that allegation to be meritorious.
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Third, LCCC found Hrinko’s appeal to have merit because Morrissey was not
selected based on the merit of her qualifications exactly as they were set forth in the job
vacancy posting, and Morrissey adduces no evidence showing that determination to be
pretextual. Morrissey argues that there was nothing procedurally flawed in the initial
search procedure. In so arguing, she cites the deposition transcript of two individuals,
one of whom was on the initial search committee. Morrissey first cites to the testimony
of Dr. Nancy Kosteleba, a search committee member, for the proposition that there was
nothing wrong with the initial job posting. Kosteleba’s deposition reveals, however, that
she had no knowledge of the specifics of the appeal instituted by Hrinko, which
significantly undermines, if not destroys, the probative value of such testimony.
Morrissey also cites to the deposition testimony of John Wills, then-Vice-President of
Academic Affairs, who opined that he thought the initial proceeding resulted in the most
qualified person being selected for the job. He admitted, though, that he did not know
about the “legal part” of the claim.
At best, therefore, Morrissey has shown that two LCCC officials, who were not
involved in the appeal process, found the initial job search to be sound. We do not think
that a factfinder could reasonably construe these isolated statements to mean that LCCC
invidiously discriminated against Morrissey because of her age or sex. The following
factual predicate remains unchallenged: one, that LCCC had a policy of allowing
unsuccessful applicants to appeal; two, that pursuant to that policy, an unsuccessful
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candidate, Michael Hrinko, appealed; three, that in response, President Larson requested
an appropriate review, resulting in a detailed report drafted by Amico, which outlined
Hrinko’s complaint, noting both the meritorious and baseless parts thereof; four, that
upon reviewing the report, President Larson granted the appeal and re-instituted a new
search, a presumptively appropriate exercise of his discretionary power, as set forth in the
written hiring procedures; and five, that the second posting resulted in the most qualified
candidate being selected.
Against this factual predicate, Morrissey’s assertions are insufficient to compel a
finding of pretext. Morrissey had to show “not merely that the employer’s proffered
reason was wrong, but that it was so plainly wrong that it cannot have been the
employer’s real reason.” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d
Cir. 1997).
Accordingly, we hold that Morrissey cannot defeat summary judgment on her age
and gender discrimination claims under the scheme of proof set out in McDonnell
Douglas. 4
4
We note that Morrissey’s § 1983 claim is based upon LCCC’s alleged violation of the
Equal Protection clause and Title VII. To make out a claim under the Equal Protection clause, a
plaintiff must prove that she suffered purposeful or intentional discrimination on the basis of
gender. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977).
Consequently, the showing plaintiff must make for § 1983 gender discrimination is the same as
for Title VII claims. See Stewart v. Rutgers, The State Univ., 120 F.3d 426, 432 (3d Cir.1997).
Inasmuch as Morrissey failed to support her claims of gender discrimination under Title VII, her
§ 1983 claim fails as well.
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B. Price Waterhouse
We therefore move on to Morrissey’s argument that she was entitled to survive
summary judgment under Price Waterhouse. Under Justice O’Connor’s controlling
opinion in Price Waterhouse, if a plaintiff “show[s] by direct evidence that an illegitimate
criterion was a substantial factor in the decision,” the burden of persuasion shifts to the
employer “to show that the decision would have been the same absent discrimination.”
490 U.S. at 276. A plaintiff attempting to prove discrimination by direct evidence faces a
“high hurdle.” Connors v. Chrysler Financial Corp., 160 F.3d 971, 976 (3d Cir. 1998).
Specifically, the evidence must demonstrate that the “decision makers placed substantial
negative reliance on an illegitimate criterion in reaching their decision.” Id.Here, Morrissey relies exclusively on certain ageist remarks made by President
Larson in an unrelated case brought against LCCC in the District Court for the Middle
District of Pennsylvania. See Merkle v. Luzerne County Community College, No. 02-
0515, (M.D. Pa. filed June 19, 2003). Morrissey asked the District Court in this case to
take judicial notice of the factual findings in Merkle, which allegedly demonstrate that
President Larson wanted to force the retirement of certain administrative employees in
1998 based on their age.5 While the District Court, for reasons that remain unclear, failed
to rule on Morrissey’s request, we have no difficulty concluding that such a request, even
5
Because the record reflects that Morrissey relied exclusively on Fed. R. Evid. 201(b) in
trying to place President Larson’s other acts in the record, we express no opinion as to whether
Morrissey could have otherwise introduced such evidence by establishing its admissibility under
Fed. R. Evid. 404(b).
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if considered, should have been rejected.
The Federal Rules of Evidence provide that courts may only take judicial notice of
facts outside the trial record that are “not subject to reasonable dispute.” Fed. R. Evid.
201(b). A judicially noticed fact must either be generally known within the jurisdiction of
the trial court, or be capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned. See id.; Werner v. Werner, 267 F.3d
288, 295 (3d Cir. 2001). Facts adjudicated in a prior case fall short of this standard. As
we have previously stated, “[t]aking judicial notice of the truth of the contents of a filing
from a related action could reach, and perhaps breach, the boundaries of proper judicial
notice.” Werner, 267 F.3d at 295 (declining to take judicial notice of board minutes filed
in separate action involving separate parties); see also Liberty Mutual Ins. Co. v. Rotches
Pork Packers, Inc., 969 F.2d 1384 (2d Cir. 1992) (“Facts adjudicated in a prior case do
not meet either test of indisputability contained in Rule 201(b): they are not usually
common knowledge, nor are they derived from an unimpeachable source.”); United States
v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (stating that the effect of judicially noticing
a fact is to preclude the opposing party from introducing contrary evidence and essentially
direct a verdict against him as to the noticed fact). As such, we conclude that it would be
improper for either this Court, or the District Court, to consider the substance of the
factual record in the unrelated Merkle case.
As Morrissey proffers no other direct evidence, we hold that Morrissey cannot
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survive summary judgment on her age discrimination claims under Price Waterhouse.
III.
Proceeding to consider Morrissey’s claims of retaliation, we note at the outset that
although Morrissey’s claims of retaliation are brought under Title VII and the PHRA, the
analytical framework for each is identical. See Fogleman v. Mercy Hosp., Inc., 283 F.3d
561, 567 (3d Cir.2002) (analysis for Title VII, ADEA, and PHRA retaliation claims
identical). In order to establish a prima facie case of retaliation, a plaintiff must show: (1)
that he or she engaged in a protected activity; (2) that his or her employer took an adverse
employment action; and (3) a causal link between the two. See id. at 567-68.
To obtain summary judgment, the employer must show that the trier of fact could
not conclude, as a matter of law, (1) that retaliatory animus played a role in the
employer’s decisionmaking process and (2) that it had a determinative effect on the
outcome of the process. Krouse v. American Sterilizer, Co., 126 F.3d 494, 501 (3d Cir.
1997). These two factors may be met either by establishing plaintiff’s inability to raise a
genuine issue of material fact as to one or more elements of the plaintiff’s prima facie
case or, if the employer offers a legitimate non-retaliatory reason for the adverse
employment action, whether the employer’s proffered explanation was a pretext for
retaliation. Id.The District Court offered both alternative grounds for granting LCCC’s motion
for summary judgment on Morrissey’s retaliation claims. We conclude that Morrissey
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has failed to submit sufficient evidence to show pretext.
A. Prima Facie Case
Morrissey avers that she complained of gender discrimination to Amico upon
hearing that she had not secured the ISA position. Within six months of complaining to
Amico, M orrissey learned that she did not get the ISA position after the second posting.
We first note that Morrissey’s informal complaint to Amico of gender
discrimination, albeit in somewhat vague and conclusory terms, constitutes protected
activity, thus satisfying the first element in the prima facie case. See Sumner v. U.S.
Postal Service, 899 F.2d 203, 209 (2nd Cir. 1990) (noting that protected activity includes
informal protests to management). In addition, Morrissey’s failure to obtain the ISA
position constitutes the adverse employment action, which satisfies the second element in
the prima facie case. Whether Morrissey raised a genuine issue of material fact as to the
final element–the causal connection between the protected activity and the adverse
employment action–is more problematic.
In trying to establish the causal connection, Morrissey argues that she was denied
the ISA position only six months after complaining of gender discrimination. We have
recognized the probative value of temporal proximity in retaliation cases. Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000). Whether the causal
connection may be inferred solely from the close proximity in time between the protected
activity and the adverse action is dependent upon the particular factual circumstances in a
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given case. Id. In Krouse, for instance, we held that an allegedly retaliatory employment
action occurring nineteen months after the protected activity did not, standing alone,
support a finding of a causal link. We stated that the timing must be “unusually
suggestive” of retaliatory motive before a causal link will be inferred. 126 F.3d at 503.
We do not believe the six month duration between the time Morrissey complained
to Amico and the time LCCC filled the ISA position is “unusually suggestive” of
retaliatory motive. We must therefore look to other circumstantial evidence of retaliatory
animus. See Krouse, 126 F.3d at 504 (“When temporal proximity between protected
activity and allegedly retaliatory conduct is missing, courts may look to the intervening
period for other evidence of retaliatory animus.”). Morrissey submits that she was also
the victim of a pattern of antagonism following her complaint. This antagonism allegedly
manifested itself in the following ways: (1) she was displaced from her original office; (2)
LCCC required Morrissey to be interviewed during the second selection while on sick
leave, something never before required of a candidate; and (3) Morrissey, unlike the other
candidates, was not informed about the format of the interviews.
LCCC contends that there is sufficient evidence to rebut these allegations. That
may be true, but in so arguing LCCC misconstrues the nature of M orrissey’s burden.
Morrissey is only required to raise a genuine issue of fact as to the causal connection to
establish her prima facie case. See Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981) (stating that burden of establishing a prima facie case is not
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onerous). Morrissey has testified to this intervening antagonism, which, when considered
together with the six month duration between the protected activity and adverse action, at
a minimum, raises a factual question about the causal link. We thus conclude that
Morrissey did meet the low threshold for establishing a prima facie case of retaliation.
B. Pretext
Nevertheless, Morrissey’s claims fail because she has not presented sufficient
evidence to rebut LCCC’s legitimate nondiscriminatory reason for the adverse
employment action. See Krouse, 126 F.3d at 501. A jury could not reasonably conclude,
based upon the scant evidence adduced by Morrissey, that LCCC’s proffered reason for
the failure to promote was mere pretext. See discussion supra at part IIA.
The District Court, therefore, committed no error in entering summary judgment
for LCCC on the retaliation claims.
IV.
For the foregoing reasons, the District Court’s order granting summary judgment
in favor of LCCC will be affirmed.6
6
We finally note that the parties failed to brief the remaining issues of qualified immunity
(raised by LCCC) and punitive damages (raised by Morrissey). The District Court failed to
discuss these issues after finding that Morrissey had not provided sufficient evidence from which
a jury could reasonably conclude that she was the subject of illegal discrimination. We likewise
need not address these issues.
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