Goosby v. Johnson & Johnson

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

9-25-2000

Goosby v. Johnson & Johnson

Precedential or Non-Precedential:

Docket 99-3819

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Filed September 25, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-3819

DEBORAH S. GOOSBY,

Appellant

v.

JOHNSON & JOHNSON MEDICAL, INC.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Civil No.: 98-cv-0097

District Court Judge: Honorable Donetta W. Ambrose.

Argued: June 30, 2000

Before: ALITO, McKEE, Circuit Judges and

FULLAM,* District Judge

(Filed: September 25, 2000)

Domenic A. Bellisario, Esq. (Argued)

1000 Law & Finance Building

Pittsburgh, PA 15219

Attorney for Appellant

_________________________________________________________________

*Hon. John P. Fullam, Senior Judge of the United States District Court

for the Eastern District of Pennsylvania, sitting by designation.

Richard F. Shaw, Esq. (Argued)

Amy E. Dias

Maureen T. Taylor

JONES, DAY, REAVIS & POGUE

500 Grant Street

Pittsburgh, PA 15219

Attorneys for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge.

Deborah S. Goosby, a Black female, brought this Title VII

action against her former employer, Johnson & Johnson

Medical Inc. ("JJMI"), alleging that certain adverse

employment decisions were the result of illegal racial and

gender bias. The district court granted JJMI's motion for

summary judgment and dismissed all of Goosby's claims.

For the reasons that follow, we will reverse in part and

affirm in part, and remand for further proceedings

consistent with this opinion.

I.

JJMI initially hired Goosby as a Territory Assistant in

Virginia in 1990, and she was subsequently transferred

from Virginia to JJMI's Empire Division in New York. There,

she worked as a Sales Representative and was later

promoted to Senior Sales Representative. In January 1992,

Ms. Goosby was transferred to the Three Rivers Division in

Pennsylvania where she was working when she filed this

suit. She was the only Black female in that division, and

her direct supervisor there was the Division Manager,

Martin Murray. Murray reported to the Regional Manager,

Ron Evans.

Goosby's responsibilities at Three Rivers consisted

primarily of selling operating room related products to

Western Pennsylvania area hospitals. In November 1994,

JJMI restructured its sales force by creating three new

positions: (1) Account Manager ("AM"); (2) Surgical

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Specialist Representative ("SSR"); and (3) Continuing Care

Representative ("CCR"), and assigning its sales

representatives to one of those three new positions. The AM

& SSR positions involved essentially the same hospital

customers, and many of the same products, Goosby had

been servicing before the reorganization. The CCR position,

on the other hand, was geared toward the nursing home

market -- which JJMI was attempting to enter for the first

time -- and involved products Goosby was not familiar

with.

Goosby expressed interest in the SSR and AM positions

because they involved selling the same products and

utilizing the same sales contacts she was involved with

before the reorganization. In addition, because JJMI was

relatively new to the nursing home market, the CCR

position required calling sales referrals she did not know.

This "cold-calling" was far more difficult than calling

established customers. Goosby alleges without

contradiction that she had been so effective selling to her

old customers that she had won several awards for

exceptional sales including recognition for the highest sales

volume, and induction into the company's "Ring Club" for

outstanding sales performance. App. at 526. She also had

the highest average commissions within her division and

alleges that her customers had high regard for her. App. at

503-16.

Goosby believed that the AM and SSR positions were

preferable to the CCR position because both appeared to

provide greater opportunity sales and would therefore result

in larger commissions and better promotions. She also

based her belief in part upon a conversation with a JJMI

representative who had told her that the AM position was

for the "best of the best" and that AM positions had been

assigned only to employees that the company believed in.

App. at 441-444. Goosby alleges that the CCR position, on

the other hand, was for employees that the company

wanted to get rid of.

JJMI developed a competency assessment tool (the

"Matrix") to match employees with the new positions.

According to JJMI, the District Managers evaluated each of

his/her employees according to eight competencies and five

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skill sets that the District Managers were given to use as

evaluators.1 The Division Managers assigned each of

his/her employees a score from "one" to "five" for each

competency and skill set and sent the completed forms to

the Regional Manager.2 The Regional Manager then applied

various weights to the Matrix scores to reflect the different

competencies required for each position. For example,

according to JJMI, the most important qualifications for the

CCR position were drive, selling process, relationship

building, product knowledge and presentation skills while

administrative and organizational skills were the primary

attributes of an AM. Each employee was then given a

separate score for each of the new positions based upon the

weighted calculations of the Matrix. The lowest score for a

particular position indicated which of the three positions

the employee was most qualified for. However, JJMI

concedes that each Division Manager also recommended

placements for the employees he/she supervised when the

Division Manager sent the Matrix to the Regional Manager.

Goosby received poor scores in administrative, time

management, and organizational skills but she received

high scores in relationship building and presentation skills.

App. at 199. Her scores for drive, product knowledge,

business savvy, and pricing/contracts were satisfactory. Id.

Based solely upon the weighted numerical ranking that

resulted from those scores, the Matrix indicated that she

was best suited for the CCR position; and Division

_________________________________________________________________

1. The listed competencies were drive, selling process, relationship

building, product knowledge, business savvy, analytical, administrative,

and time management. The listed skill sets were computer skills,

leadership, pricing and contracts, presentation skills, and organization

skills.

2. The numbers assigned to the skills were as follows:

1- outstanding; 2- consistently exceeds standards;

3- meeting standards in this area;

4- occasionally meets standards;

5- does not meet standards

Thus, under this system, the position which yielded the lowest score

after the weights were attached, was ostensibly the position for which

the employee was most suited.

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Manager, Martin Murray, recommended her for that

position when he sent the completed Matrix to the Regional

Manager. Id.; App. at 189.

Goosby was subsequently assigned to the CCR position,

but she was openly displeased. Five days after being

informed of the assignment, she filed a charge of race and

sex discrimination with the EEOC and the Pennsylvania

Human Relations Commission ("PHRC"). In the latter she

alleged a violation of the Pennsylvania Human Relations

Act. 43 P.S. S 955 ("PHRA").3

Despite her displeasure with her assignment, Goosby

began working as a CCR on January 1, 1995. However, in

May 1995, she took a short-term disability leave. Under

JJMI's disability policy, salaried employees were allowed to

remain on short-term disability for a maximum of twenty-

six weeks, but JJMI reserved the right to reassign afield

sales employee's sales territory (Goosby's CCR position)

after twelve weeks of disability leave. The policy also

required the employee to "communicate any unexpected

change in medical status to the medical department[of

JJMI]." App. at 265. The employee could not return without

submitting a "return-to-work authorization" form by which

the treating physician confirmed the employee's ability to

perform the full scope of his/her job. App. at 264-67.

Goosby was medically cleared to return to work and did

return on July 11, 1995.

However, Goosby took a second disability leave on August

14, 1995. On November 17, 1995, her treating physician

again authorized her return to work, but only in a limited

capacity. Accordingly, Evans and Murray compiled a list of

possible reduced duty jobs that Goosby could perform

consistent with her physician's authorization. App. at 145.

However, JJMI never extended an offer for limited duty

because Evans and Murray subsequently concluded that an

employee could not discharge the responsibilities of a CCR

_________________________________________________________________

3. The analysis required for adjudicating Goosby's claim under PHRA is

identical to a Title VII inquiry. Jones v. School District of

Philadelphia,

198 F.3d 403, 410-11 (3d Cir. 1999), and we therefore do not need to

separately address her claim under the PHRA.

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on a reduced duty basis. App. at 298. Accordingly, Goosby

remained on disability leave.

The second twenty-six week leave that Goosby was

entitled to ended on February 14, 1996, under JJMI's

policy; but Goosby had not yet been cleared to return to

work on that date. Goosby now claims that the delay in

returning resulted from JJMI's failure to send the necessary

authorization forms for her doctor's approval. However,

JJMI argues that specific forms are not necessary.

According to JJMI, Goosby only had to obtain a letter from

her treating physician stating that he/she unconditionally

cleared Goosby to return to work full time. App. at 272,

276-77.

On March 6, 1996, Goosby learned that JJMI had

permanently reassigned her territory to another sales

representative. Six days later, she did finally submit an

unrestricted medical clearance from her treating physician.

The authorization stated that Goosby had been capable of

returning to work as early as February 14, 1996. App. at

322. However, JJMI had already filled Goosby's CCR

position, and it was therefore not available. JJMI did,

however, offer Goosby a CCR position in Buffalo, New York.

JJMI claims that was the only CCR position available at the

time. App. at 323-7. Goosby failed to respond to the offer,

and JJMI thereafter terminated her employment.

On January 14, 1998, Goosby filed the instant action in

the district court alleging race and gender discrimination in

violation of 42 U.S.C. S 1981 ("Title VII"), and the PHRA.

She alleges that the discrimination consists of her

assignment to the CCR position, JJMI's refusal to allow her

to work in a restricted duty capacity, and the reassignment

of her territory while she was on disability leave. Goosby

also claims that JJMI illegally retaliated against her for the

first charge of discrimination that she had filed with the

EEOC.4 Following discovery, the district court accepted the

magistrate judge's report and recommendation, and granted

JJMI's motion for summary judgment on all of Goosby's

claims. This appeal followed.

_________________________________________________________________

4. The EEOC had investigated and found her original charges were

meritorious.

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II.

Our review of a grant of summary judgment is de novo.

See Carter v. Rafferty, 826 F.2d 1299, 1304 (3d Cir. 1987).

Summary judgement is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law."

FED. R. CIV. P. 56(c).

III.

Title VII and the PHRA both prohibit an employer from

engaging in race or gender discrimination against an

employee. Under the oft cited decision in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), Goosby mustfirst

establish a prima facie case of discrimination. To do so she

must offer sufficient evidence that she was: (1) a member of

the protected class, (2) qualified for the position she sought,

and (3) nonmembers of the protected class were treated

more favorably. See Ezold v. Wolf, Block, Schorr and Solis-

Cohen, 983 F.2d 509, 522 (3d Cir. 1993). Once a plaintiff

under Title VII establishes a prima facie case, the employer

must come forward with a legitimate, non-discriminatory

reason for the adverse employment decision. See Texas

Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-

56 (1981). If the employer is able to proffer a legitimate,

nondiscriminatory reason for its actions, the plaintiff must

demonstrate that the proffered reason was merely a pretext

for unlawful discrimination. See Reeves v. Sanderson

Plumbing Products Inc., 120 S.Ct. 2097 (2000).

IV.

The district court concluded that Goosby had established

a prima facie case, and we agree. She can obviously satisfy

the first prong of the inquiry as a Black female. Secondly,

the AM and SSR positions involved the products and

customers she had dealt with prior to the restructuring.

She had not only performed those duties well, she had

excelled. As noted above, she earned the highest average

sales commissions within her division, and her sales ability

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won her national recognition. We therefore conclude that

Goosby has established her qualifications for the two

positions she sought.

However, before we address JJMI's explanation for its

employment decisions, we must address a dispute about

whether JJMI's decision to award Goosby the CCR position

really was an "adverse employment decision." JJMI argues

that each of the three positions it created during the

reorganization had equivalent compensation and the

opportunity for advancement and promotions was the

same. However, as noted above, Goosby testified in her

deposition that the CCR position was the least desirable

because it operated in a new market, and the AM and SSR

positions dealt with established customers. Therefore, she

contends, it would be much harder for her to achieve the

same level of sales in her new CCR position despite JJMI's

assurances that the three positions were equal. Goosby also

testified that AMs were viewed by the company as the best

employees and placement in that position improved an

employee's chances of promotion and recognition. JJMI

disputes this by arguing that it would not go to the expense

and effort necessary to successfully compete in the new

market the CCR position was aimed at and then assign

employees it didn't intend to keep to develop the new area

of sales.

The divergence of Goosby's view of the CCR position and

her employer's rejoinder obviously creates a genuine issue

of material fact as to whether Goosby was treated

adversely. Inasmuch as we are reviewing a grant of

summary judgment, we must accept Goosby's assertion

that the CCR position was less desirable than the other

two. Accordingly, we must examine JJMI's explanation for

awarding Goosby the CCR position. See Jones v. School

Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999). JJMI

justifies Goosby's assignment to the CCR by arguing that it

was dictated by the objective scoring of the Matrix that

Evans, not Murray completed. According to JJMI, Goosby's

assignment was determined by her poor administrative

skills score. JJMI points out that those low scores were

consistent with, and confirmed by, several performance

evaluations wherein Goosby's administrative and

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organizational skills had been evaluated as needing

improvement. App. at 205, 213, 221, 223, 231, 238, 241,

257. JJMI asserts that those were the skills that were most

important to the positions Goosby preferred.5

JJMI argues that Murray did not even know how the

"objective" rating he gave Goosby would be weighed when

he completed the Matrix. Moreover, Goosby concedes that

her Matrix score is consistent with her assignment to the

CCR position given JJMI's scoring system, and that she

does have the administrative weaknesses that JJMI claims

lead to her assignment as a CCR. However, Goosby argues

that JJMI's stated reliance on the Matrix was itself merely

a pretext to camouflage the subjective decision of

Division Manager, Martin Murray, and that Murray's

recommendation actually caused her placement. She claims

that Murray ran a "good old boys" network that has

adversely effected her since she began working in the Three

Rivers Division. She suggests that this is reflected in the

fact that her pay increases were "drastically reduced" by

Murray, see App. 423-4, despite her stellar sales, and in

Murray's practice of inviting the White males in the division

to play golf, as well as the discriminatory manner in which

Murray handled complaints against various employees in

his division.

Goosby insists that her assignment as a CCR reflects

Murray's bias rather than her Matrix score, and she points

to situations where the Matrix score supported one

assignment, but Murray contemporaneously recommended

another. In the instances she refers to, the ultimate

assignment was consistent with Murray's recommendation;

not the purportedly objective scoring of the Matrix. For

example, according to the Matrix score, employee Naetzker

should have been assigned to an SSR or CCR position. App.

at 197. However, Murray recommended Naetzker to be

placed into an AM position, and Murray's recommendation

was honored. Similarly, the Matrix scoring indicated that

employees Kennedy and Deluca should become CCRs. App.

at 198, 200. However, Murray recommended that both

_________________________________________________________________

5. JJMI maintains that employees' preferences were irrelevant as they

weren't considered in making the placements.

9

employees be awarded positions as AMs, and his

recommendations were once again honored.

Goosby also argues that other employees with poor

scores for administrative and organizational ability were

nevertheless awarded the "preferable" positions purportedly

denied her because of those weaknesses. That allegation, if

proven, would support a finding of discrimination despite

her administrative weaknesses. JJMI attempts to explain

this discrepancy by pointing out that only a limited number

of employees were needed to fill each position and therefore

the Matrix could not always be followed. That may well be,

however, a reasonable fact finder could also conclude that

the Matrix did not have the importance JJMI claims, and

that JJMI's reliance on it to explain Goosby's placement is

merely a pretext to cover Murray's discriminatory motive in

not recommending her for the "better" positions. See Meritor

Sav. Bank, F.S.B. v. Vinson, 477 U.S. 57, 75 (1986) ("An

employer can act only through individual supervisors. . .

discrimination is rarely carried out pursuant to a formal

vote of a corporation's board of directors."). Moreover, the

Matrix criteria and their weighting are themselves highly

subjective even though they are given an apparently

objective numerical ranking. Accordingly, the Matrix does

not insulate JJMI to the extent that JJMI suggests.

"[S]ubjective evaluations are more susceptible of abuse and

more likely to mask pretext." See Weldon v. Kraft, Inc., 896

F.2d 793, 798 (3d Cir. 1990)(citations and internal

quotations omitted).

We have held that while objective job qualifications

should be considered in evaluating a plaintiff 's prima

facie case, the question of whether an employee

possesses a subjective quality, such as leadership or

management skill, is better left to the later stage of the

McDonnel Douglas analysis.

Id.

Moreover, "subjective" scoring is sometimes based upon

factors that are too speculative to base a meaningful

comparison. Carter v. Three Springs Residential Treatment,

132 F.3d 635, 644 (11th Cir. 1998). In Carter , the court

held that an employer's reliance on plaintiff 's lack of

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"special knowledge and skills" was "too subjective to allow

for any meaningful comparison between [two applicants]."

Id. at 644. The court noted that other requirements such as

"initiative and judgment capabilities" and the ability "to

relate to people in a manner to win confidence and

establish support" can not be evaluated objectively and

therefore should not be relied upon to overcome a prima

facie case of discrimination. Id.

Of course, a plaintiff can not ultimately prove

discrimination merely because his/her employer relied

upon highly subjective qualities (i.e. "drive" or

"enthusiasm") in making an employment decision. However,

just as use of such criteria does not establish

discrimination, cloaking such criteria with an appearance

of objectivity does not immunize an employment decision

from a claim of discrimination.

Although courts must be careful not to second-guess

an employer's business judgment that it makes in good

faith, plaintiff must be allowed to show that her

employer's asserted reasons for discharging her were a

pretext and that the real reason was [illegal

discrimination].

Gallo v. Prudential Residential Services, 22 F.3d 1219, 1226

(2nd Cir. 1994) (citing St. Mary's Honor Center v. Hicks, 509

U.S. 502, 519 (1993).

JJMI also argues that Goosby's claim of gender

discrimination should be dismissed because the only other

woman in her division was assigned to a position as an AM.

However, that does not necessarily defeat Goosby's claim of

gender bias. Clearly, an employer does not have to

discriminate against all members of a class to illegally

discriminate against a given member of that class. See

Pivirotto v. Innovative Systems, 191 F. 3d 344, 353-4 (3rd

Cir. 1999) ("even if a woman is fired and replaced by

another woman, she may have been treated differently from

similarly situated male employees."). Within the atmosphere

of the "old boys' network" that Goosby alleges, it is certainly

possible that some females may have been preferred

because they were more "like one of the boys" than Goosby.

Id. at 354 ("an employer may fire women who fail to act in

11

a particular manner" or who appear more assertive and

"less feminine"). In addition, it is conceivable that an

employer who harbors a discriminatory animus may

nevertheless allow one or two females to advance for the

sake of appearances.

Moreover, evidence that JJMI afforded a White female an

assignment that it denied to a Black female hardly defeats

a claim of race/gender discrimination brought by a Black

female.

We are, of course, reviewing a grant of summary

judgment, and we do not suggest that JJMI is guilty of race

and/or gender discrimination, or that Goosby will

ultimately be able to prove the discrimination she is

alleging. Goosby admits to having problems with

administrative tasks, and JJMI argues that the positions

she sought placed a premium on the very areas where

Goosby admits to being weakest. However, Goosby's claim

that she was treated less favorably than White males with

similar weaknesses can not be decided as a matter of law.

In an employment discrimination case "a trial court must

be cautious about granting summary judgment to an

employer when, as here, its intent is at issue." Gallo v.

Prudential Residential Services, Ltd. Partnership , 22 F.3d

1219, 1224 (2d Cir. 1994). Inasmuch as there are genuine

issues of material fact as to JJMI's motives in assigning

Goosby to the CCR position, we hold that the district court

erred in granting JJMI summary judgment on that portion

of Goosby's claim. Accordingly, the court's dismissal of

Goosby's Title VII and PHRA claims based upon JJMI's

failure to place her in the AM or SSR position will be

reversed.

V.

Goosby also alleges that JJMI discriminated against her

by not allowing her to return to work in a limited duty

capacity. As noted above, JJMI explained that it"did not

have a restricted duty policy for any field sales employees"

because "a sales employee [such as Goosby] could not

perform all the essential tasks, such as makingfield visits

to existing and potential customers, if they were on

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restricted duty." App. at 49. When Goosby's physician first

released her for restricted duty, her supervisors began

discussing possible options. On October 16, 1995, Evans e-

mailed Murray with a list of reduced activities which JJMI

would have Goosby perform if they "decide[d] to recommend

a reduced activity assignment." App. 486. A few days later,

Evans sent a memo to Pat Van Wye, JJMI's leave

coordinator, stating "I am of the opinion we should

aggressively move forward and . . . potentially establish a

reduced duty assignment." App. at 488. He attached the list

of potential reduced duty activities to that memo. However,

before any firm offer was made, Evans and Murray decided

to only allow the return of a field sales representative such

as Goosby if the representative was capable of performing

his/her full duties. There is no evidence that any other

JJMI sales representative was ever allowed to work in a

limited capacity, and Goosby has not produced any

evidence that JJMI's explanation for its refusal to offer her

such a position was pretextual. Therefore, the district court

did not err in dismissing this portion of Goosby's claim.

VI.

Ms. Goosby also claims that JJMI discriminated against

her by permanently filling her position while she was on

leave. However, as noted above, JJMI's short term disability

policy provided for a maximum of twenty-six weeks

disability leave and guaranteed only that a field sales

employee's territory would remain open for the first twelve

weeks of that leave. App. 264-66. Moreover, before

returning to work, an employee on leave was clearly

required to submit a medical release from a treating

physician.

It is undisputed that Goosby's twenty-six weeks of leave

expired on February 14, 1996 and that she did not submit

her doctor's authorization until after that date. She argues

that the authorization was delayed because JJMI did not

send her the paperwork for completion until February 6,

1996. We find that excuse unavailing. JJMI asserts that it

would have accepted a letter from her treating physician,

and had done so in the past, so that Goosby knew that she

did not have to wait for specific forms to obtain her

13

physician's authorization to return to work. However, even

if that claim is not accurate, Goosby clearly knew the clock

was ticking and she had sufficient time between the forms

being sent and the expiration of her leave period to return

the forms to JJMI. She failed to do so. Absent any evidence

that she was unable to comply with JJMI's policy because

of something JJMI did, we are not persuaded that there is

a genuine issue of material fact as to this issue.

Goosby argues that, although the short term disability

policy did exist, JJMI did not uniformly follow it. A violation

of company policy can constitute a pretext for unlawful

discrimination if others similarly situated also violated the

policy with no adverse consequence. See Delli Santi v. CNA

Ins. Companies, 88 F.3d 192, 203-4 (3d Cir.1996). Goosby

points to two White female employees who returned to work

in their original positions after being on leave for more than

twenty-six weeks. Appellant's Brief at 27. However, even

assuming that is true, Goosby has not demonstrated that

either of those employees was similarly situated to her.

Goosby can not establish the type of leave those women

took or whether their paperwork was submitted on time.

Thus, Goosby can not overcome JJMI's reliance on its

established policy, and the district court properly concluded

that JJMI was entitled to summary judgment on the

portion of Goosby's claim that arose from her termination

following her disability leave.

VII.

Finally, Goosby claims that JJMI unlawfully retaliated

against her for filing a charge of discrimination. To

establish a prima facie claim of retaliation, a plaintiff must

show that he/she is engaged in protected activity, that the

employer took an adverse employment action against

him/her, and that there is a causal connection between the

protected activity and the adverse employment action. See

Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir.

1997). Goosby filed the relevant charges with the EEOC on

November 28, 1994 and claims that JJMI retaliated by not

allowing her to return to work in a restricted duty capacity

and by reassigning her territory before her return.

14

The district court disposed of that claim as follows:

plaintiff 's argument . . . does not provide a jury with

sufficient evidence from which an inference of

retaliation can be made. Plaintiff does not, and cannot,

contest that her position was held open to her for a full

26 weeks of disability leave. . . Further, plaintiff

concedes that defendant requested from her, prior to

the expiration of her sick leave, a return to work

authorization, and that she did not provide such an

authorization until almost a month after her sick leave

expired. No inference of retaliation can be rationally

drawn from these facts.

App. at 603-4.

We agree. In addition, the time frame between Goosby's

EEOC filing and the alleged retaliation weighs against the

causation that she must establish. There was nearly a full

year between the first filing with the EEOC and Goosby's

attempts to return to work on restricted duty, and almost

fifteen months passed before she was permanently replaced

and ultimately terminated. Although such a lapse may not

prevent a plaintiff from establishing the required nexus in

every case, given the circumstances here Goosby can not

establish that a genuine dispute as to the material fact of

causation. There is nothing to suggest any link between the

EEOC filing and the adverse job action that followed.

VIII.

For the foregoing reasons, the district court's dismissal of

Goosby's claim of discrimination based on her assignment

to a CCR position is reversed and remanded for further

proceedings consistent with this opinion. The district

court's grant of summary judgment to JJMI is affirmed in

all other respects.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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