Scheidemantle v. Slippery Rock Univ

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

12-19-2006

Scheidemantle v. Slippery Rock Univ

Precedential or Non-Precedential: Precedential

Docket No. 05-3850

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-3850

JUDY SCHEIDEMANTLE,

Appellant

v.

SLIPPERY ROCK UNIVERSITY

STATE SYSTEM OF HIGHER EDUCATION

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 04-CV-00331)

District Judge: Honorable Donetta W. Ambrose

Argued October 4, 2006

Before: McKEE, AMBRO, and NYGAARD, Circuit Judges

(Opinion filed: December 19, 2006)

Neal A. Sanders, Esquire (Argued)

1924 North Main Street Extension

Route 8 North

Butler, PA 16001

Counsel for Appellant

Thomas W. Corbett, Jr.

Attorney General

Craig E. Maravich (Argued)

Deputy Attorney General

Calvin R. Koons

Senior Attorney General

John Knorr, III

Chief Deputy Attorney General

Appellate Division

Office of Attorney General of Pennsylvania

564 Forbes Avenue, Sixth Floor

Manor Complex

Pittsburgh, PA 15219

Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge

Judy Scheidemantle alleges that Slippery Rock University

discriminated against her by refusing twice to promote her for

2

an advertised locksmith position and hiring unqualified male

employees instead. Slippery Rock countered, in a motion for

summary judgment, that it did not promote Scheidemantle

because she was unqualified for the position. The United States

District Court for the Western District of Pennsylvania agreed

with Slippery Rock in granting its motion, determining that

Scheidemantle failed to establish a prima facie case of gender

discrimination because she did not meet the “objective

qualifications” for the position.

Scheidemantle appeals to us. We must decide whether an

employer that hires someone who lacks a job posting’s objective

qualifications can point to the absence of those same

qualifications in another applicant as a basis for declining to hire

that second applicant. We hold that it cannot, and in so doing

conclude that Scheidemantle established a prima facie case of

discrimination. We thus reverse the summary judgment and

remand.

I. Factual Background

In March 2003, Slippery Rock posted a locksmith

position vacancy, requiring two years of locksmithing

experience. Scheidemantle, who worked for Slippery Rock as

a labor foreman, applied along with three male applicants. She

had completed a home study course in locksmithing and

3

subsequently received a professional locksmithing license,1 but

neither she nor the other applicants possessed the requisite two

years of locksmithing experience.

Scheidemantle was not hired. Instead, Calvin Rippey, a

younger employee from the University’s “carpenter

department,” who had no prior coursework and less than two

years’ locksmithing experience, was selected for the position.

Scheidemantle filed a discrimination claim with the

federal Equal Employment Opportunity Commission (EEOC),2

1

Slippery Rock argues that Scheidemantle’s invocation of her

license as a measure of her greater qualifications is a red

herring, because Pennsylvania does not require licenses for

locksmithing. Indeed, legislative attempts to regulate

locksmithing by requiring locksmith licenses have failed four

times in Pennsylvania. See Locksmith License Act, S.R. 286,

Sess. of 1997 (Pa. 1997); S.R. 1170, Sess. of 1995 (Pa. 1995);

H.R. 1540, Sess. of 1975 (Pa. 1975); H.R. 2127, Sess. of 1974

(Pa. 1974). Nevertheless, a reasonable juror could view

Scheidemantle’s license as relevant to her qualifications to

function competently as a locksmith.

2

Scheidemantle also filed a claim with the Pennsylvania

Human Relations Commission (“PHRC”), which decides

discrimination claims under the Pennsylvania Human Relations

Act. 43 P.S. §§ 951 et seq. However, pursuant to a

“Worksharing Agreement” between the PHRC and the EEOC

4

alleging age and gender discrimination in violation of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.,3 and

the Pennsylvania Human Relations Act, 43 P.S. §§ 951 et seq.

(“PHRA”).4 The EEOC dismissed her claim, noting that her

under which each entity agrees to yield investigatory authority

to the Commission with which an action is first filed, and

because Scheidemantle already had submitted the case to the

District Court by the time the PHRC reviewed her petition, the

Pennsylvania Commission declined to consider Scheidemantle’s

case.

3

Title VII provides, in pertinent part, that

[i]t shall be an unlawful employment practice for an

employer . . . to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such

individual's race, color, religion, sex, or national origin.

...

42 U.S.C. § 2000e-2(a)(1).

4

The relevant provisions state as follows:

The opportunity for an individual to obtain employment

for which he is qualified . . . without discrimination

because of [, inter alia,] race, color, familial status,

religious creed, ancestry, handicap or disability, age, [or]

5

home study course was the equivalent of 241 hours of actual

locksmithing experience, whereas Rippey’s actual experience

included at least 941 hours. It concluded that Scheidemantle’s

“allegations that [she was] discriminated against because of

[her] age and/or sex[] [could] not be substantiated. The

evidence revealed that [Slippery Rock] selected the candidate

with the most experience and/or training for the locksmithing

position.” App. at 88. Scheidemantle then filed suit in the

District Court.

sex . . . is hereby recognized as and declared to be a civil

right which shall be enforceable as set forth in this act.

43 P.S. § 953.

It shall be an unlawful discriminatory practice, unless

based upon a bona fide occupational qualification . . .[,]

for any employer because of [, inter alia,] the race, color,

religious creed, ancestry, age, sex, [or] national origin .

. . to refuse to hire or employ or contract with . . . or to

otherwise discriminate against such individual or

independent contractor with respect to compensation,

hire, tenure, terms, conditions or privileges of

employment or contract, if the individual or independent

contractor is the best able and most competent to perform

the services required.

43 P.S. § 955(a).

6

In April 2004, Rippey was promoted out of the locksmith

position and the now-vacant position was again posted in June

2004, this time requiring three years of locksmithing experience.

Between April and June, Rippey informally had assigned

Bradley Winrader, an employee from the carpenter department,

to perform locksmithing duties on an ongoing basis. Winrader

also had little experience in locksmithing and had completed no

locksmithing coursework until November 2004, when he

enrolled in a correspondence course after beginning his

locksmithing assignment. Based on the record before us,

Slippery Rock did not conduct interviews for or fill the 2004

position on a permanent basis.

In October 2004, Scheidemantle filed another complaint

with the EEOC, which again rejected her case. She then

amended her complaint before the District Court, wherein she

alleged age and gender discrimination for both the 2003 and

2004 rejections. She also alleged, in the alternative, that the

University’s failure to promote her in 2004 was in retaliation for

her 2003 EEOC filing.

The District Court determined that Scheidemantle was

not qualified for the locksmith position according to the

objective criteria listed in the position announcements, and

consequently she could not establish a prima facie case of

discrimination. She appeals to us, asserting only her gender

discrimination claims.

7

II. Jurisdiction

The District Court had subject matter jurisdiction over

the initial case pursuant to Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-5(f)(3), and 28 U.S.C. § 1331. We

have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

III. Standard of Review

We exercise plenary review over the District Court’s

grant of summary judgment and apply the same standard the

District Court should apply. See, e.g., Slagle v. County of

Clarion, 435 F.3d at 263 (3d Cir. 2006); Hugh v. Butler County

Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005). Namely, a

grant of summary judgment is proper where the moving party

has established that there is no genuine dispute of material fact

and “the moving party is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c). A fact is material if it might affect

the outcome of the suit under the governing substantive law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). To

demonstrate that no material facts are in dispute, the moving

party must show that the non-moving party has failed to

establish one or more essential elements of his or her case.

Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986); Hugh,

418 F.3d at 267. In addition, a court should view the facts in the

light most favorable to the non-moving party and make all

reasonable inferences in that party’s favor. Hugh, 418 F.3d at

267.

8

To prevail on a motion for summary judgment, the non-

moving party needs to show specific facts such that a reasonable

jury could find in that party’s favor, thereby establishing a

genuine issue of fact for trial. See Fed. R. Civ. P. 56(e). “While

the evidence that the non-moving party presents may be either

direct or circumstantial, and need not be as great as a

preponderance, the evidence must be more than a scintilla.”

Hugh, 418 F.3d at 267 (quoting Anderson, 477 U.S. at 251).

IV. Discussion

A. Legal Standards for Establishing Employment

Discrimination

1. Guiding Principles

Two principles guide our analysis. First, Title VII is a

remedial statute, so it must be interpreted broadly. See 42

U.S.C. § 1604.34 (“These rules and regulations shall be liberally

construed to effectuate the purpose and provisions of Title

VII . . . .”); see also Slagle, 435 F.3d at 267 (citing Bowers v.

NCAA, 346 F.3d 402, 431 n.24 (3d Cir. 2003) (“We recognize

that []Title VII is clearly remedial civil rights legislation . . . .”));

Idahoan Fresh v. Advantage Produce, Inc., 157 F.3d 197, 202

(3d Cir. 1998) (noting that we must construe remedial statutes

liberally).

Second, there is a low bar for establishing a prima facie

9

case of employment discrimination. See, e.g., Ezold v. Wolf,

983 F.2d 509, 523 (3d Cir. 1993) (“In Title VII cases involving

a dispute over subjective qualifications, we have recognized that

the qualification issue should often be resolved in the second

and third stages of the McDonnell Douglas . . . analysis

[discussed below], to avoid putting too onerous a burden on the

plaintiff in establishing a prima facie case . . . . Because the

prima facie case is easily made out, it is rarely the focus of the

ultimate disagreement.”) (internal citations and quotation marks

omitted); Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir.

1990) (“The framework set forth in McDonnell Douglas . . . was

never intended to be rigid, mechanized or ritualistic. Rather, it

is merely a sensible, orderly way to evaluate the evidence in

light of common experience as it bears on the critical question

of discrimination.”) (internal citations omitted).

2. McDonnell Douglas Burden-Shifting Inquiry

To prevail on a claim for gender discrimination under

Title VII and its analogous provision under the PHRA,5

Scheidemantle must satisfy the three-step burden-shifting

5

We construe Title VII and the PHRA consistently. See

Atkinson v. LaFayette College, 460 F.3d 447, 454 n.6 (3d Cir.

2006); Slagle, 435 F.3d at 262; Kelly v. Drexel Univ., 94 F.3d

102, 105 (3d Cir. 1996); Gomez v. Allegheny Health Serv., Inc.,

71 F.3d 1079, 1084 (3d Cir. 1995).

10

inquiry laid out in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802–03 (1973). First, she must establish a prima facie case

of gender discrimination. To do that, she must demonstrate that

(a) she was a member of a protected class, (b) she was qualified

for the locksmith job to which she applied, and (c) another, not

in the protected class, was treated more favorably. See id. at

802–03.

If she succeeds in making out a prima facie case, the

burden shifts to the University to establish a legitimate non-

discriminatory reason for its failure to promote her. Id. at

804–05. If the University is able to provide such a reason,

Scheidemantle must then show that the proffered reason is

merely a pretext for actual discrimination. Id.; see also Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).

B. District Court Decision

The District Court decided this case on the basis of

McDonnell Douglas’s first step alone: that Scheidemantle could

not establish a prima facie case of discrimination because she

failed to meet the qualification prong. (The Court proceeded on

the assumption that the other two prongs are satisfied, and we

agree. Scheidemantle meets the first prong because, as a

woman, she is a member of a protected class—“sex” under Title

VII. She meets the third prong because the person who filled

the position, thereby receiving more favorable treatment, was a

11

man, who does not fall within Title VII’s gender protections.)6

Slippery Rock argues before us that the District Court’s

decision on Scheidemantle’s lack of objective qualifications

(two or three years’ experience for the 2003 and 2004 positions,

respectively) is correct, and this disqualifies her at the outset as

lacking a prima facie case. Scheidemantle counters that she did

not need to meet the objective qualifications of the job postings

because she was at least as qualified as the male employees

hired for and assigned to the job. Under Hugh v. Butler County

Family YMCA, 418 F.3d 265, 268 (3d Cir. 2005), she argues, an

employer that hires a male who also fails to meet the objective

6

Because it decided on the basis of the qualification prong,

the Court did not address whether, for her 2004 claim,

Scheidemantle met the third prong that an unprotected employee

received more favorable treatment. The University would likely

argue that she did not, since it did not formally fill the position

but rather “assigned” it to another employee. However, we have

held that an employee alleging gender discrimination need not

demonstrate that the employer hired someone from a non-

protected class in her place in order to make out a discrimination

claim. See Pivirotto v. Innovative Sys., 191 F.3d 344, 354 & n.6

(3d Cir. 1999) (collecting cases to the same effect from the

Courts of Appeals for the First, Second, Fifth, Sixth, Seventh,

Eighth, and Eleventh Circuits). This prong therefore cannot be

in serious dispute because the assignment—though short of

hiring—constitutes more favorable treatment, as it is an

effective filling of the position.

12

qualifications for the posted job waives its ability to rely on

objective criteria as the only way to meet the qualifications

prong. We begin, therefore, with Hugh.

C. Prima Facie Case: Qualifications Prong in

Light of Hugh

Our Court in Hugh addressed whether an employer that

promotes an employee who fails to meet a job posting’s

objective criteria can then point to the employee’s failure to

meet those criteria as a valid justification for employment

termination. 418 F.3d at 268. Specifically, Hugh was promoted

despite lacking the associated job posting’s objective

qualifications. When she later was fired and filed a

discrimination claim, did her failure to meet the job posting’s

objective qualifications mean that she also failed to meet the

qualification prong for purposes of establishing a prima facie

case of employment discrimination? We answered “no” because

“it is a fair inference that the decision to promote Hugh was

based on her satisfactory performance in her two previous

positions [at the organization].” Id. In other words, the

promotion “does establish [] plaintiff’s qualification for [the]

job.” Id. (internal citations omitted). Cf. Jalil v. Avdel Corp.,

873 F.2d 701, 707 (3d Cir. 1989) (holding that where an

employer promoted an eight-year employee “to the ‘lead man’

position in his department . . ., satisfactory performance of

duties . . . leading to a promotion clearly established his

qualifications for the job.”).

13

We have not decided yet whether the qualifications prong

may be met implicitly through the promotion of an unqualified

third party, as in this case, but Hugh provides guidance. There

the employer was precluded from using a lack of objective

qualifications defense, as previously it had ignored those posted

qualifications in promoting the employee-plaintiff. Applying

those principles to this case, Hugh stands for the proposition

that, by departing from a job posting’s objective criteria in

making an employment decision, an employer establishes

different qualifications against which an employee or applicant

should be measured for the position.

This reading of Hugh is consistent with our review of

past District Court decisions. See, e.g., Pinckney v. County of

Northampton, 512 F. Supp. 989, 998 (E.D. Pa. 1981), aff’d, 681

F.2d 808 (3d Cir. 1982) (concluding that, in order to establish a

prima facie discrimination case, courts should look to the hiring

decision to determine if the plaintiff was at least as

qualified—not necessarily better qualified—as the person

selected for the position.). 7 Moreover, any narrow reading of

Hugh runs contrary to the generously construed, remedial civil

7

Additionally, McDonnell Douglas explained that more

favorable treatment to a non-protected applicant includes

seeking someone “of complainant’s qualifications” after

rejecting the complainant. 411 U.S. at 802. That case does not

directly control this one, since the complainant’s objective

qualifications there were not in dispute.

14

rights regime. If an employer could, with impunity, appeal to

objective qualifications to defeat any female job applicant’s

challenge to its hire of an objectively unqualified male in her

place, discrimination law would be reduced to bark with no bite.

Title VII demands that employers apply the same standards for

hiring women and other protected minorities that they apply to

all other applicants.

Like Hugh, we look here to the hiree’s qualifications to

determine whether Slippery Rock created the inference that

something other than the posted objective qualifications was

sufficient. Rippey (the 2003 hiree), Windrader (the 2004

assignee), and Scheidemantle all lacked the objective

qualifications listed in the job posting. If we compare the

subsequent hiring decision to the objective criteria in this case,

we can only conclude that something other than the job

postings’ two or three years of locksmithing experience was

sufficient. The record shows that when Slippery Rock hired

Rippey in 2003, it did so with the understanding that he had only

three months of locksmithing experience on “light duty” while

he was a carpenter and was recovering from surgery to both

hands, App. 242–44, and Scheidemantle asserts that her training

made her at least as qualified as Rippey. App. Br. at 13–14.8

8

But see App. at 87 (Memo accompanying EEOC Dismissal,

dated Dec. 16, 2003) (“The successful candidate, Calvin Rippey,

met the required experience and/or training. Rippey has been

part of the carpentry crew for the last twelve years and has

15

Similarly, when Slippery Rock assigned Winrader to the

position in 2004, he had no locksmithing experience according

to his resume. Nor had he completed a course in locksmithing

as had Scheidemantle.9 Applying Hugh, we conclude that, by

worked, at various times, as a locksmith. A computer printout

for work accomplished by Rippey after 1997, when the

Respondent [Slippery Rock] began maintaining such records for

employees, revealed that he had at least 941 hours working as a

locksmith. The [University] determined that Rippey’s hours

should be prorated for the time prior to the establishment of the

1997 computer records. Thus, based on the number of hours, as

compared to [Scheidemantle’s ‘locksmith equivalent of 205

. . . hours’ through her coursework], Rippey has substantially

more hours in experience and/or training for the locksmith

position.”). We have no access to the documents referenced

here and they did not figure into the District Court’s decision.

At oral argument, Scheidemantle contested the EEOC’s

determination, asserting Rippey could not demonstrate that he

had the experience the Commission attributed to him. This

question is clearly an issue of fact best left to a jury to decide.

9

When deposed, Winrader revealed that he had some

experience in locksmithing both inside the University while a

carpenter and outside of the University ten years before his

assignment to fulfill locksmith duties, but had no locksmithing

coursework until November 2004—which he began after

receiving the locksmithing assignment. But the information on

the prior experience was unknown to Slippery Rock prior to the

assignment, so it cannot be considered at the prima facie stage

16

departing from the objective requirements in its hiring decision,

Slippery Rock thereby established different qualifications by

which Scheidemantle—as a protected applicant who suffered an

adverse employment decision—met the qualifications prong and

completed her prima facie case of discrimination. The District

Court thus erred by entering summary judgment in favor of

Slippery Rock.

V. Conclusion

We hold that the District Court erred in determining that

Scheidemantle failed to establish a prima facie case of

employment discrimination against Slippery Rock on the basis

that she failed to meet the job posting’s objective qualifications.

Because Slippery Rock placed similarly “unqualified” males in

the locksmith position, it could no longer point to the job

posting’s objective qualifications as a valid reason for refusing

to promote Scheidemantle. We thus reverse and remand for

further proceedings.10

or at the pretext stage once the burden shifts to the University to

provide legitimate reasons for failing to promote Scheidemantle.

At most, Winrader’s claims of prior experience (and thus greater

qualifications than Scheidemantle) at deposition raise a disputed

material issue of fact that should be tried before a jury.

10

We surmise that Slippery Rock likely will file for summary

judgment on at least the second stage of the McDonnell Douglas

inquiry (other reasons beyond qualifications offered for not

17

hiring Scheidemantle). If so, we observe that disputed issues of

material fact appear to linger—specifically, whether

Scheidemantle was more qualified than Rippey or Winrader and

whether Slippery Rock discriminates against women by

affording training and promotion opportunities in locksmithing

to men that it denies to women.

To flesh out the latter observation, the record before us

suggests that the University has a history of failing to provide

women with opportunities for locksmith training. It appears to

assign employees from only the carpenter department to

temporary locksmithing positions, such as the short-term

rotating weekly assignments that Winrader and “most of the

[other] carpenter people” held prior to Winrader’s April 2004

longer-term assignment. See App. at 233 (deposition of former

locksmith Guy Surrena). In addition, it appears that the

carpenter department has not hired any woman since 1991 and

perhaps before. If the temporary locksmith assignments are the

only way of gaining experience through the University, whether

those assignments are available only to employees in the all-

male carpenter department is a relevant issue of fact for

determining the ultimate question of whether discrimination has

occurred. See Ezold, 983 F.2d at 540, 542–43 (noting that

situations where an employer denies women “equal

opportunities to . . . training and support” that prevents them

from gaining exposure to the projects or experience that would

qualify them for promotions can support an inference of

discrimination); cf. Jackson v. University of Pittsburgh, 826

F.2d 230, 235 (3d Cir. 1987), cert. denied, 484 U.S. 1020 (1988)

(recognizing that when an employer’s discrimination prevents

18

blacks from accessing training and support, it creates a

“reasonable inference that [the black employee] was treated less

favorably than his white colleagues in ways that could explain

any ‘deficiency’ in performance”). These disputed issues fall

within the province of the finder of fact and cannot be resolved

on summary judgment.

19