The opinion
Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit
3-10-2000
Narin v Lower Merion Sch. Dist.
Precedential or Non-Precedential:
Docket 99-1029
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Filed March 10, 2000
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 99-1029
SANDRA G. NARIN
Appellant
v.
LOWER MERION SCHOOL DISTRICT
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 97-cv-6376)
District Judge: Honorable J. Curtis Joyner
Argued: November 2, 1999
Before: NYGAARD, MCKEE and ROSENN,
Circuit Judges.
(Filed March 10, 2000)
Theodore R. Mann (Argued)
Neil C. Gever
Mann, Ungar, Spector & Labovitz
1709 Spruce Street
Philadelphia, PA 19103
Counsel for Sandra G. Narin
Kenneth A. Roos (Argued)
Justin M. O'Donoghue
Wisler, Pearlstine, Talone, Craig,
Garrity & Potash, LLP
484 Norristown Road -- Suite 100
Blue Bell, PA 19422-2326
Counsel for Lower Merion School
District
OPINION OF THE COURT
ROSENN, Circuit Judge.
This appeal provides an excellent illustration of the
difficulties that confront a claimant under the Age
Discrimination in Employment Act (ADEA). 29 U.S.C.S 621
et seq. The plaintiff, Sandra G. Narin, applied for ten
different teaching positions with the defendant, Lower
Merion School District. The school district did not hire her
for any of these positions, and it filled some of them with
substantially younger applicants.
Narin sought relief under the ADEA in a suit shefiled in
the United States District Court for the Eastern District of
Pennsylvania. The district court granted summary
judgment in favor of Lower Merion on nine of her eleven
claims of discrimination brought pursuant to that Act. The
remaining two claims were tried to a jury, which returned
a verdict in favor of Lower Merion. Before the conclusion of
the trial, Narin uncovered additional evidence that cast
doubt on the propriety of some of the district court's
summary judgment rulings. She did not, however, request
the district court to reconsider its rulings or grant her a
new trial on the basis of the newly discovered evidence.
After the trial and entry of judgment, Narin timely
appealed. Although this is a troublesome case, after hearing
oral argument and carefully reviewing the record and briefs,
we are constrained to affirm.
I.
Narin was born on April 2, 1941. From 1958 to 1962, she
attended Bryn Mawr College where she earned a bachelor's
2
degree in Russian with honors. From 1962 to 1965, Narin
attended the University of Pennsylvania where she received
a doctorate in Russian language. From 1980 to 1983, Narin
attended Villanova University School of Law where she
acquired a law degree. In 1994, Narin obtained teaching
certifications in French and Russian from Bryn Mawr
College. In 1996, Narin also obtained a teaching
certification in English from Eastern College.
Narin completed her student teaching program in the
Lower Merion School District during the Spring of 1994.
Thereafter, she served as a .2 long term substitute French
teacher in the Lower Merion School District for the 1994-95
school year.1 This position, which was temporary from the
start, was eliminated as planned at the end of the school
year. Narin, however, continued to work as a per diem
substitute in the Lower Merion School District for the next
two school years. During the 1995-96 school year, Narin
substituted on 118 days out of the 180-day school year.
During the 1996-97 school year, Narin substituted on 130
days. While working as a per diem substitute, Narin applied
for ten different teaching positions in the Lower Merion
School District.
First, she applied to teach French in a foreign language
pilot program to be implemented at Cynwyd Elementary
School. ("Count I"). She applied for this position by sending
a letter dated April 15, 1996 to William Kearns, the director
of personnel for the Lower Merion School District. Kearns
replied to Narin by letter dated April 17, 1996 and informed
her that, if the school board approved the pilot program, a
fractional teacher would be needed for the 1996-97 school
year. Although the program was later approved, Narin was
neither hired nor interviewed for the position. Sandra
Dunn, to whom Kearns delegated the responsibility of
selecting applicants for interviews, testified in her
deposition that she did not remember reviewing Narin's
application, but probably would not have been interested in
_________________________________________________________________
1. ".2" designates that the position involved 20% of the workload handled
by a full-time teacher. A "long term substitute position" arises when
there is a need to fill an extended, albeit temporary, vacancy such as
when a teacher takes maternity or paternity leave.
3
Narin because she (i.e., Dunn) "very clearly wanted
someone who had experience teaching, if not elementary
school, at least middle school." Jt. App. at 161. Marie
Wells, age 34, was ultimately hired for the position.
Although, like Narin, Wells lacked full-time elementary
teaching experience, Wells had developed and run an after-
school French program for second, third, and fourth
graders. Wells also taught middle school from 1986 to
1989.
Second, Narin applied for a position as a "Challenge
Teacher" at Cynwyd Elementary School. ("Count III").2 Narin
first expressed interest in this position in her April 15,
1996 letter to Kearns. At that time, however, the position
was not yet posted, and Kearns did not respond to Narin's
inquiries in regard to it. After the position was posted
formally on April 25, 1996, Narin sent another letter to
Kearns dated April 29, 1996, in which she reexpressed
interest in the "Challenge Teacher" position. Again,
however, Narin was not interviewed for the position. In his
declaration in support of summary judgment, Kearns stated
that Narin was neither hired nor interviewed for the
position because she lacked experience teaching at the
elementary school level and did not possess an elementary
education certification. Lower Merion ultimately hired Jill
Horak, age 43, who possessed both.
Third, Narin applied "for the position of regular education
teacher for all four major subjects in an alternative setting."
("Count IV"). She did so by sending a letter to Kearns dated
April 29, 1996. Narin was never interviewed or contacted in
regard to this position. Throughout discovery and in its
motion for summary judgment, Lower Merion, relying on
Kearns' affidavit and deposition testimony, contended that
the position did not exist. In response, Narin pointed to a
portion of her deposition, in which she testified that she
had read about the position in the paper and that
_________________________________________________________________
2. Narin first contended that there were two"Challenge Teacher"
positions, and her complaint included two Counts (II and III) based on
those positions. However, at summary judgment she only produced
evidence that one such position existed. Accordingly, only the Count III
"Challenge Teacher" position will be discussed in this opinion.
4
"Domenick someone" had been hired for it. 3 Narin also
attached a copy of the formal posting for the position as an
attachment to her sur-reply to Lower Merion's motion for
partial summary judgment on the statute of limitations.4
Fourth, at the suggestion of Nancy Pertschuk, the
chairperson of the Harriton High School English
Department, Narin applied for a position to teach English at
Harriton High School for the 1996-97 school year. ("Count
V"). She applied by sending a letter to Kearns dated July
30, 1996. Narin was interviewed for the position on August
1, 1996 by Pertschuk and Harriton High School's principal,
Norton Seaman. Seaman, who possessed the authority for
the hiring decision, subject to final approval by the
superintendent, testified in his deposition that he chose
Kathy Bress, age 38, over Narin because he believed that
Bress performed better in her interview. Pertschuk, who
stated that Narin was her first choice, also stated that
Kathy Bress was on her "short list" for the position and
that her leanings toward Narin probably reflected her
friendship with Narin.
Fifth, on October 21, 1996, Narin applied for a .6 long-
term substitute position teaching French at Bala Cynwyd
Middle School. ("Count VI"). Again, she did so by sending a
letter to Kearns. Narin followed up with her application on
several occasions. Between October and January, she made
four phone calls to Lower Merion's personnel office in
regard to the position, however, Narin was not interviewed
until January 7, 1997. When she was interviewed, it was by
Kearns and Dunn, who allegedly did not come away with a
favorable impression. Both Kearns and Dunn stated that
while they were impressed with Narin's academic
_________________________________________________________________
3. After summary judgment was entered against Narin, she learned the
identity of the person actually hired. "Domenick someone" turned out to
be Domenick Pavia, age 35.
4. The posting, which ran in the April 28, 1996 Philadelphia Inquirer,
stated:
Lower Merion School District has the following High School openings
for the 96-97 school year . . . Regular education but MULTI
CERTIFIED -- 6 -10 students teaching all four major subjects. Must
have experience teaching in an alternative setting.
5
background they were concerned by Narin's lack of middle
school experience. The two also felt that Narin performed
poorly in her interview. Ultimately, the two recommended
Julia Proger, a 23-year old with no experience teaching
middle school students. Narin testified in her deposition
that during the interview, Dunn asked her whether she "as
a person who is returning to teaching at [her] age, after so
long a time, could possibly adapt to the new humanistic
methods."5
Sixth, on December 19, 1996, Narin applied for a .4 long-
term substitute position teaching English at Bala Cynwyd
Middle School. ("Count VII"). Again, she applied by sending
a letter to Kearns. Lower Merion contends that by the time
Kearns received Narin's application, it had already hired
Andrew Thomas, age 24.
Seventh, on March 9, 1997, Narin applied for a long-term
substitute position teaching English at Lower Merion High
School. ("Count VIII"). Again, she did so by sending a letter
to Kearns. Narin was interviewed for the position on March
19, 1997 by Dr. Maher, Lower Merion High School's
principal, and Dr. Hay, Lower Merion's coordinator of
language arts. Dr. Maher rated Narin's interview
performance as average. Dr. Hay rated Narin's interview
performance slightly higher, but expressed concern about
Narin's lack of full-time English-teaching experience.
Ultimately, Dr. Maher, who had authority to make the
hiring decision, subject to approval by the superintendent,
recommended Deborah Gavin, age 27, instead of Narin. Dr.
Maher and Dr. Hay both rated Gavin's interview
performance highly and thought Gavin an "excellent fit" for
the position.
Eighth, on May 12, 1997, Narin applied for a full-time
position teaching English at Lower Merion High School.
("Count IX"). Again, Narin did so by sending a letter to
Kearns. Narin was granted an interview for the position. Dr.
Maher, Lower Merion High School's principal, conducted
_________________________________________________________________
5. Narin also presented evidence that Kearns, during a 1996 faculty
meeting, stated something to the effect that if anyone thought that Lower
Merion hired only experienced teachers, one had but to look around at
all the new young faces to dispel that idea.
6
the interviews for the position in July of 1997. Dr. Maher's
first choice for the position was Marsha Pincus, age 45.
Pincus, however, withdrew her name from consideration
after she was selected as the top candidate. Dr. Maher then
extended an offer to Deborah Gavin, age 27. Dr. Maher
stated that he chose Gavin over Narin because Gavin
performed better in her interview and because he had been
favorably impressed with Gavin during her prior position as
a long term substitute.
Ninth, and also on May 12, 1997, Narin applied for a.8
long-term substitute position teaching English at Harriton
High School. ("Count X"). She expressed her interest in the
position by sending a letter to Kearns. Narin was granted
an interview for this position. Harriton High School
principal Joel Bartolomeo, Lower Merion School District
gifted education supervisor Cecil Frey, Harriton High School
assistant principal William Loue, and student council
president Benjamin Getto conducted the interviews for the
position, including Narin's. Based on the interviews, the
committee's first choice for the position was Rayna
Goldfarb, age 51. When Goldfarb withdrew her name from
consideration, the committee opted to extend an offer to
Rita Lerario, age 49. Out of the five candidates interviewed
for the position, the committee ranked Narin fourth.
Tenth, on June 19, 1997, Narin applied for a Challenge
Teacher position at Welsh Valley Middle School. ("Count
XI"). Again, she was not hired. Lower Merion contends that
it did not interview any candidates for this position.
Instead, it asserts that when Frank Panaia, a 54-year old
social studies teacher at Welsh Valley, applied for a
transfer, Lower Merion offered him the position.
Finally, Narin also alleged that she was not hired for a
number of instructional aide positions. ("Count XII").
However, Narin does not identify any specific instructional
aide position for which she applied and was not hired.
Understandably, Narin was extremely frustrated by Lower
Merion's repeated rejections of her applications. She
believed the rejections to be a result of her age rather than
her qualifications, and, on June 10, 1997, shefiled a
charge of discrimination with the Equal Employment
7
Opportunity Commission ("EEOC") and the Pennsylvania
Human Relations Commission ("PHRC"). After receiving a
right to sue letter, Narin filed a complaint in the United
States District Court for the Eastern District of
Pennsylvania. In her complaint she alleged that Lower
Merion's repeated refusals to hire her constituted age
discrimination, in violation of the ADEA.
After a lengthy period of discovery, Lower Merionfiled two
motions for summary judgment: a motion for summary
judgment on all counts and a motion for partial summary
judgment based on the statute of limitations. In its motion
for summary judgment on all counts, Lower Merion
contended that with respect to each position for which
Narin applied and was rejected, Narin either failed to
establish a prima facie case or produced no evidence to
suggest that Lower Merion's legitimate, nondiscriminatory
reasons for not hiring her were pretext. In its motion for
summary judgment based on the statute of limitations,
Lower Merion asserted that Counts I through V of Narin's
complaint were time barred under 29 U.S.C. S 626(d)(2)
because the alleged unlawful employment practices
underlying these Counts occurred more than 300 days
before Narin filed her complaint with the PHRC and the
EEOC.
The district court first considered Lower Merion's motion
for summary judgment on all counts. It carefully reviewed
the evidence produced during discovery and reached the
following conclusions. First, with respect to Count IV, the
district court determined that Narin failed to state a prima
facie case of age discrimination because she produced
insufficient evidence to demonstrate that the Count IV
position had been filled with someone sufficiently younger
to permit an inference of age discrimination. Next, with
respect to Count III and Counts VII through XI, the district
court determined that although Narin established a prima
facie case as to these Counts, she failed to present evidence
from which a reasonable trier of fact could conclude that
Lower Merion's legitimate, nondiscriminatory reasons for
not hiring her were pretext for age discrimination. Finally,
with respect to the instructional aide positions referred to
in Count XII, the district court reasoned that Narin failed to
8
establish a prima facie case because she could not show
that she applied for, or expressed interest in, these
positions.
After disposing of Lower Merion's motion for summary
judgment on all counts, the district court turned to Lower
Merion's motion for partial summary judgment based on
the statute of limitations. Although the motion was directed
at Counts I through V, the district court only addressed
Counts I and V because it had already disposed of the other
Counts in addressing Lower Merion's motion for summary
judgment on all counts. As to Count I, the district court
concluded that Lower Merion failed to demonstrate that
Narin's cause of action accrued prior to the 300 day
limitations period established by 29 U.S.C. S 626(d)(2). It
therefore denied summary judgment on that Count. As to
Count V, the district court found that Narin's cause of
action had accrued outside of the 300 day limitations
period and that the cause of action was therefore barred.
The only Counts remaining, Counts I and VI, were tried
to a jury, which returned a verdict in favor of Lower Merion.
II.
Narin contends that the district court erred in granting
summary judgment on Counts III through V and Counts VII
through XII. With respect to Count IV, Narin contends that
the district court incorrectly determined that she failed to
establish a prima facie case of discrimination. With respect
to Count III and Counts VII through XII, Narin argues that,
although she failed to produce any evidence to demonstrate
that Lower Merion's reasons for not hiring her for the
positions underlying these Counts were pretext, the district
court nevertheless erred in granting summary judgment on
them because it "erroneously considered each rejected
application in isolation from all others and ignored the
principle that if some of the proffered reasons advanced by
a defendant employer are prextextual, `a factfinder may
rationally disbelieve the remaining proffered reasons, even
if no evidence undermining those remaining rationales in
particular is available.' " App. Br. at 7 (quoting Fuentes v.
Perskie, 32 F.3d 759, 764 n. 7 (3d Cir. 1994)). As to Count
9
V, Narin argues that the district court incorrectly concluded
that this claim was time barred under 29 U.S.C.S 626(d)(2).
We undertake plenary review of the district court's grant
of summary judgment, see Fuentes, 32 F.3d at 763, and
address each of Narin's contentions.6
A.
To establish a prima facie case of age discrimination
under the ADEA, a plaintiff must establish that: (1) she was
over 40 at the time she applied for the position in question;
(2) she was qualified for the position in question; (3) despite
her qualifications she was rejected; and (4) the employer
ultimately filled the position with someone sufficiently
younger to permit an inference of age discrimination. See
Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d
Cir. 1995). Sempier v. Johnson & Higgins, 45 F.3d 724, 728
(3d Cir. 1995). The district court concluded that Narin
failed to establish a prima facie case as to Count IV
because she could not establish that the position was filled
by someone sufficiently younger to permit an inference of
age discrimination.
At the time the district court entered summary judgment
on Count IV, Narin only presented evidence that"Domenick
somebody" had been hired to fill the teacher in the
alternative setting position. She did not know the
_________________________________________________________________
6. As a preliminary matter, we note that counsel for Lower Merion has
submitted a letter pursuant to Federal Rule of Appellate Procedure 28(j),
in which he contends that the Supreme Court's decision in Kimel v.
Florida Board of Regents, ___ U.S. #6D6D 6D#, 120 S.Ct. 631 (2000) renders
the
ADEA inapplicable to Lower Merion. This contention is meritless. In
Kimel, the Supreme Court held "only that, in the ADEA, Congress did
not validly abrogate the States' sovereign immunity to suits by private
individuals." Lower Merion, however, is not a state or an arm of the state
for eleventh Amendment purposes and therefore is not entitled to
sovereign immunity. See Lester H. v. Gilhool, 916 F.2d 865, 870-71 (3d
Cir. 1990) cert. denied, 499 U.S. 923 (1991)(holding that school districts
do not share in the Commonwealth of Pennsylvania's Eleventh
Amendment sovereign immunity, because they are not alter egos of the
Commonwealth)(citing Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977)).
10
individual's last name. Nor did she know his age. It was
only after summary judgment was entered that Narin
learned that "Domenick somebody" was actually Domenick
Pavia, age 35. However, we do not understand Narin's
argument on appeal to be that the district court erred in
granting summary judgment on the basis of evidence she
failed to present. Rather, we understand Narin to argue
that her failure to produce the age and identity of the
individual who ultimately filled the position should have
been excused because she presented evidence at the
summary judgment stage establishing that the Count IV
position existed, thus severely undermining Lower Merion's
repeated contention that the position did not exist.
Although we recognize that the elements of the prima
facie discrimination case are not to be applied rigidly, see
E.E.O.C. v. Metal Serv. Co., 892 F.2d 341, 348 (3d Cir.
1990), we do not believe the district court erred in granting
summary judgment. In producing the posting that
established the existence of the Count IV position, Narin
undoubtedly produced evidence suggesting that she had
been treated unfairly by Lower Merion. But, to survive
Lower Merion's motion for summary judgment Narin
needed to do more than present evidence suggesting that
she had been treated unfairly by the school district. She
needed to present evidence suggesting that the unfair
treatment she received was a result of her age. Because
Narin presented no evidence that the Count IV position was
filled by someone sufficiently younger than Narin, we
cannot fault the district court for not finding that it could
infer age discrimination.
The appropriateness of the district court's decision to
grant summary judgment on Count IV also is supported by
Narin's failure to establish that she was qualified for the
position: element two of the prima facie case. See Brewer,
72 F.3d at 330. The Count IV position required a multi-
certified teacher with experience in an "alternative setting."
Although Narin possesses certifications in two foreign
languages and in English, she lacks certification to teach
mathematics and science. Perhaps certifications in
mathematics and science were not necessary, but the
burden to establish their irrelevance was Narin's. She failed
11
to present any evidence in this regard. In addition, Narin
also failed to present evidence demonstrating that she had
experience teaching in an "alternative setting," which the
advertisement expressly required. Although the court will
not countenance any unlawful discrimination because of
age, we recognize that the district court must weigh
carefully the evidence or lack thereof of discrimination.
In sum, although we are disturbed by the actions of
Lower Merion in insisting that the Count IV position did not
exist, we do not believe that those actions, reprehensible as
they may be, were sufficient to permit an inference of ADEA
discrimination and excuse Narin's failure to establish two
elements of the prima facie case.7 Accordingly, we are
constrained to affirm the district court's grant of summary
judgment as to Count IV.
B.
Narin next contends that the district court erred in
granting summary judgment as to Count III and Counts VII
through XII. In this connection, Narin does not argue that
the district court incorrectly concluded that she failed to
produce evidence specifically directed at undercutting the
credibility of Lower Merion's legitimate, nondiscriminatory
reasons for not hiring her for the positions underlying these
Counts. Rather she argues that summary judgment was
inappropriate even in the absence of such evidence.
Specifically, she asserts that the evidence of pretext with
respect to Counts I, V, and VI coupled with the evidence of
what she considers to be Kearns' central and deceptive role
in the hiring process provided a sufficient basis from which
a rational trier of fact could have concluded that all of
Lower Merion's justifications for not hiring her were pretext.
_________________________________________________________________
7. We also note that when Narin uncovered the posting for the Count IV
position, the proper course would have been to request a continuance to
take additional discovery. See Fed. R. Civ. P. 56(f). Alternatively, when
Narin learned the age and identity of "Domenick somebody" before the
commencement of the trial, she also could have requested the district
court to reconsider its grant of summary judgment on the Count IV
position.
12
In support of her position, Narin principally relies on this
Court's decision in Fuentes. In Fuentes , this Court held
that "to avoid summary judgment, the plaintiff's evidence
rebutting the employer's proffered legitimate reasons must
allow a factfinder reasonably to infer that each of the
employer's proffered nondiscriminatory reasons . . . was
either a post hoc fabrication or otherwise did not actually
motivate the employment action." Fuentes, 32 F.3d at 764.
However, in announcing this holding, we were careful to
note that it is not necessary for a plaintiff to"cast doubt on
each proffered reason in a vacuum." Id. at 764 n. 7. Rather,
"[i]f the defendant proffers a bagful of legitimate reasons,
and the plaintiff manages to cast substantial doubt on a
fair number of them, the plaintiff may not need to discredit
the remainder." Id. This is so "because the factfinder's
rejection of some of the defendant's proffered reasons may
impede the employer's credibility seriously enough so that
a factfinder may rationally disbelieve the remaining
proffered reasons, even if no evidence undermining those
remaining rationales in particular is available." Id. at 764-
765 n. 7.
Lower Merion contends that this aspect of the Fuentes
decision has no application to Narin's case. It argues that
the above-quoted statements apply only in situations where
the defendant offers several nondiscriminatory reasons for
a single employment decision rather than where, as here,
the defendant offers separate reasons for separate
employment decisions. We need not decide the issue. Even
if we were to give Fuentes the expansive reading that Narin
suggests, Narin's evidence of pretext with respect to Counts
I, V, and VI, even when coupled with the evidence of
Kearns' central and allegedly hostile role in the hiring
process, would not warrant reversal of summary judgment
on the remaining Counts.
First, we note that, although the district court concluded
otherwise, Narin's evidence of pretext with respect to the
Count V position (Harriton High School English Teacher)
was insufficient as a matter of law. Principal Seaman, who
possessed authority for the hiring decision, testified that he
did not hire Narin for the Count V position because he felt
that Narin did not perform as well in her interview as
13
another candidate, Kathy Bress. To demonstrate that this
subjective justification constituted pretext, Narin principally
relied on the deposition testimony of her other interviewer,
Nancy Pertschuk. Pertschuk testified that she rated Narin's
interview performance highly and considered Narin the top
choice for the position. However, Pertschuk also testified
that Kathy Bress was on her "short list" of two for the
position and that her leanings toward Narin probably
reflected that she was friends with Narin. Thus, rather than
undercut Principal Seaman's justification for not hiring
Narin, a decision made principally on the basis of a
subjective interview, which is a ready tool for
discrimination, Pertshuk's testimony tends to substantiate
it.8
Second, as to the positions underlying Counts VIII
through XI, we do not see how Narin's evidence of pretext
with respect to Counts I and VI, or her evidence that
Kearns lied about the existence of the Count IV position,
renders summary judgment inappropriate as to those
Counts. At the time Narin applied for the positions
underlying Counts VIII through XI, Narin had spoken with
Kearns and expressed her suspicion that Lower Merion was
discriminating against her on the basis of her age. After
this discussion, Kearns automatically forwarded any
application he received from Narin to the building principal
responsible for the hiring decision. Narin then was
interviewed by several different individuals, and the record
is devoid of any evidence suggesting that the justifications
of these decision makers for not hiring Narin amounted to
pretext. Because Kearns had nothing to do with the
decisions reached in these counts, his lack of credibility
may not be attributed to the hiring decisions. Thus, without
evidence of pretext relevant to the justifications for not
hiring Narin for these positions, no rational trier of fact
_________________________________________________________________
8. Accordingly, we will affirm the district court's grant of summary
judgment as to Count V on the ground that Narin failed to produce
sufficient evidence of pretext, rather than on the ground that the claim
was time barred under 29 U.S.C. S 626. An appellate court may affirm
a decision on a ground other than that relied on by the district court.
Myers v. American Dental Assoc., 695 F.2d 716, 725 (3d Cir. 1982).
14
could find them unworthy of credence. See Fuentes, 32
F.3d at 764.9
Count XII likewise cannot be saved from summary
judgment on the basis of Narin's evidence of pretext derived
from Counts I, IV, and VI because Narin failed to establish
a prima facie case with respect to Count XII. In her
complaint Narin alleged that she was not hired for various
instructional aide positions on the basis of her age.
However, as the district court noted, the record is devoid of
any evidence that Narin ever applied for these positions or
expressed interest in them. Because she did not do so, she
cannot predicate a claim of discrimination on Lower
Merion's failure to hire her for those positions. See In re
Carnegie Ctr. Assocs., 129 F.3d 290, 298 (3d Cir. 1997).
Finally, turning to Counts III and VII, we again conclude
that no rational trier of fact could find that Lower Merion's
justifications for not hiring Narin for the positions referred
to in these Counts were pretextual. As to Count III, Lower
Merion produced evidence tending to demonstrate that it
did not interview Narin because she lacked elementary
school teaching experience as well as an elementary school
certification. Discovery revealed that the individual
ultimately hired for the position possessed both. As to
Count VII, Lower Merion presented evidence that it did not
hire Narin for the position because it had alreadyfilled the
position by the time Narin applied for it. Narin produced no
evidence to contradict this legitimate, nondiscriminatory
reason. Although Kearns was involved in the screening of
Narin's application for both of these positions, we do not
believe his actions in connection with Counts IV and VI
provide a sufficient basis from which a rational trier of fact
could conclude that the reasons for not hiring Narin for the
above positions amounted to pretext. We believe a court
must exercise caution in permitting claims to proceed to
_________________________________________________________________
9. Moreover, we also think that as to Counts X and XI Narin failed to
establish a prima facie case of discrimination. Lower Merion hired Rita
Lerario, age 49, and Frank Panaia, age 54, for the Count X and XI
positions. Because these individuals' ages do not differ materially from
Narin's, we cannot conclude that Lower Merion ultimately filled the
Count X and XI positions with someone sufficiently younger to permit an
inference of discrimination. See Brewer, 72 F.3d at 330.
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trial on the basis of evidence of pretext presented in
connection with other claims, and we therefore see no error
in the district court's exercise of that caution here.
Accordingly, we will affirm the district court's grant of
summary judgment as to Counts III and V and Counts VII
through XII.
III.
In addition to her challenges to the district court's
summary judgment rulings, Narin also challenges three
evidentiary rulings of the district court. Where a party
makes known the substance of the evidence she desires to
introduce, we review the district court's decision to exclude
the evidence for an abuse of discretion. See Walden v.
Georgia Pacific Corp., 126 F.3d 506, 517 (3d Cir. 1997).
However, where a party fails to make known the substance
of the evidence she desires to introduce, we review only for
plain error. See id.
A.
Narin first argues that the district court abused its
discretion in excluding evidence related to Counts III and IV
and Counts VII through XII. Specifically, she claims that
"[t]he jury should have been permitted to hear evidence of
pretext pertaining to one or more of the nine dismissed
counts in evaluating the reasons proffered for the Count I
and VI rejections." But, with respect to Count III and
Counts VII through XII, Narin produced no evidence of
pretext. Thus, the district court did not abuse its discretion
by excluding evidence Narin simply did not have. As to
Count IV, although Narin possessed evidence undermining
the credibility of Kearns with respect to the Count IV
position, the record does not disclose that Narin ever
attempted to offer this evidence, and we perceive no plain
error in the district court's failure to advise her to introduce
the evidence.
B.
Narin's next argument is that the district court abused
its discretion in excluding evidence of pretext produced in
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connection with Count V. The district court excluded the
evidence because it believed evidence of time barred claims
inadmissible to show pretext. In our view, even assuming
the district court's evidentiary ruling in this regard was
erroneous, the error was harmless. First, as noted above,
Narin's evidence of pretext with respect to Count V was
insufficient as a matter of law and, therefore, not
particularly helpful to establish pretext with respect to
Counts I and VI. Second, even if Narin had produced
evidence sufficient to undermine the credibility of Principal
Seaman's justification for not hiring Narin for the Count V
position, the evidence would still be irrelevant to Counts I
and VI because Seaman had nothing to do with the
decisions not to hire Narin for the positions underlying
Counts I and VI.
C.
Narin's final evidentiary point is that the district court
abused its discretion in excluding certain numerical
evidence pertaining to Lower Merion's hiring practices.
Specifically, Narin sought to introduce yearly lists
containing the names and ages of the individuals hired by
Lower Merion for every year beginning with 1986 and
continuing through 1997. Narin asserts in this appeal, as
she did in the district court, that the lists demonstrate that
in 1992 Lower Merion began to hire substantially more
teachers under the age of 35, and that this hiring practice
continued at least until 1997.
The district court permitted Narin to offer a list for the
1996-97 school year, the time during which Narin was
applying for jobs in the Lower Merion school district.
However, it refused to permit Narin to introduce hiring lists
for any other years on the ground that they were irrelevant.
Again, we perceive no abuse of discretion. The lists Narin
sought to introduce provided the ages of the individuals
Lower Merion actually hired. In addition, the lists reflected
that Lower Merion hired more individuals younger than
forty years of age than older. However, we think these
figures could only be probative of discriminatory intent if,
at the very least, it also were shown that roughly equivalent
numbers of over-forty and under-forty individuals applied
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for employment with Lower Merion. Otherwise, the lists
simply show that Lower Merion hires young individuals --
not that Lower Merion hires young individuals to the
exclusion of older ones.
IV.
Accordingly, for the reasons set forth above, the
judgment of the district court will be affirmed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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