W.R. Hoy v. Borough of Cochranton

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William R. Hoy, :

Appellant :

:

v. : No. 1005 C.D. 2015

:

Borough of Cochranton :

ORDER

NOW, December 21, 2016, upon consideration of appellant’s application for

reargument and appellee’s answer, the application is granted but only insofar as it seeks a

reconsideration of the opinion.

The opinion and order filed on October 18, 2016, are withdrawn.

The attached opinion and order are entered.

Mary Hannah Leavitt

President Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William R. Hoy, :

Appellant :

: No. 1005 C.D. 2015

v. :

: Argued: September 15, 2016

Borough of Cochranton :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: December 21, 2016

William Hoy (Hoy) appeals from the March 9, 2015 order of the Court

of Common Pleas of Crawford County (trial court) granting summary judgment in

favor of the Borough of Cochranton (Borough) on his claims of gender and age

discrimination. We affirm.

Facts/Procedural History

The background of this case, viewed in the light most favorable to Hoy

as the non-moving party, may be summarized as follows. Hoy is a retired

Pennsylvania State Trooper with twenty-five years of experience. At first, Hoy

worked as a Patrol Trooper and was thereafter promoted to Corporal in 1993, the

latest position of which he worked during the last fourteen years of his employment.

On a temporary basis, Hoy also served as acting Sergeant when a Sergeant retired.

Hoy’s work experience with the Pennsylvania State Police includes responding to

incidents of a serious nature; supervising patrol officers; evaluating patrol troopers’

performance; and maintaining positive public relations with municipal police in the

Meadville and surrounding area. (Reproduced Record (R.R.) at 204a-13a.)

The Borough’s then Police Chief, Michael Phillips, announced at a

Borough Council meeting on May 14, 2012, that he would retire, effective July 6,

2012. At this meeting, former Police Chief Phillips recommended that his

subordinate, Sergeant Heather Beachy, be promoted to Chief of Police. The Borough

Council declined this recommendation at that time, and approved a motion to

advertise the vacancy, and an advertisement appeared in a local newspaper on May

17, 2012. Hoy applied for the position via letter and resume dated May 14, 2012, and

became MPOETC (Municipal Police Officers’ Education & Training Commission)

certified after the position was advertised. Hoy, a male, was fifty-nine years old

when he applied for the position of Police Chief. (R.R. at 224a-29a, 279a-81a.)

Beachy, a thirty-three-year-old female at the time of the application

process, attended Mercyhurst Police Academy for six months, graduating on July 15,

2005, and then worked as a part-time police officer for the Borough, sixteen hours per

week, until she became a full-time officer and Sergeant on July 1, 2009. Beachy’s

job duties as a police officer included street patrol, traffic stops, and handling various

domestic disturbance calls. Since 2009, Beachy and former Police Chief Phillips

were the only full-time officers working for the Borough. As Sergeant, Beachy

supervised two to four other part-time officers and observed former Police Chief

Phillips perform his particular job duties. Beachy also served temporarily as the

acting Chief of Police when former Police Chief Phillips was out on medical leave.

2

Once he decided that he was going to retire, former Police Chief Phillips trained

Beachy with administrative tasks, budgeting, crime reports, and other matters

associated with the role of Chief of Police. (R.R. at 268a-91a, 317a-18a; Trial court

op. at 7.)

On June 19, 2012, during an executive session, the Borough Council

narrowed the list to four candidates. Of the four, only Beachy and Hoy were

residents of the Borough, and the other two were eliminated from consideration on

that basis. On July 2, 2012, the Borough Council held a meeting open to the public

and a motion was made to promote Beachy to the position of Police Chief; the motion

was passed by unanimous vote. During the selection process, the Borough Council

did not conduct any interviews. The Borough Council subsequently sent a rejection

letter dated (or misdated) June 27, 2012 to all the unsuccessful applicants, which,

including Hoy, consisted of twenty-six males. (R.R. at 382a-97a; Trial court op. at 1-

2.)

On September 4, 2013, Hoy filed the instant suit against the Borough,

alleging gender and age discrimination in the hiring of Beachy as Police Chief, in

violation of the Pennsylvania Human Relations Act (PHRA).1

Thereafter, the parties conducted discovery, gathering documentary

evidence and memorializing testimonial statements. William Shorts, President of the

Borough Council, testified that he was aware of Hoy’s credentials, but was adverse to

hiring Hoy because he did not like Hoy’s demeanor and felt that Hoy was not friendly

or had any budgeting experience. Other Council members stated that they were

generally familiar with Hoy because he resided in the Borough since 1996, had been

1

Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§951-963.

3

a football coach at the local high school for at least thirteen years, attended Council

meetings, and visited the Borough’s office. They further offered uncontradicted

testimony that the decision to hire Beachy was not made until the July 2, 2012

meeting and that the rejection letters reflecting a date of June 27, 2012, contained a

typographic error. (R.R. at 135a-36a, 214a, 244a, 289a-92a.)

Bart Waite, the Mayor of the Borough, stated that he and the Borough’s

Council decided not to interview Hoy because they did not think he was the best

person for the position. Waite stated that he never told a news reporter that it would

be beneficial to the community to have a female as the Chief of Police, but noted that

the article stated that Beachy was the first female to assume that position within

Crawford County. According to Waite, he was not aware that Beachy was the first

female Chief of Police in the county until he read the article. Waite added that he did

not think Hoy would be good at orchestrating community relations based upon his

knowledge of complaints involving Hoy in his role as the high school football coach.

(R.R. at 304a-11a, 393a; see Trial court op. at 5 n.4.)

The Borough’s witnesses also explained that the Borough received

several unsolicited recommendations from residents of the Borough in favor of hiring

Beachy, while Hoy did not have any. (R.R. at 92a, 128a, 131a.) Ultimately, the

Borough Council stated that it voted to hire Beachy for nine reasons; specifically,

because she: (1) performed admirably in her role as Sergeant; (2) was active in the

community with regard to school and neighborhood watch programs; (3) had a

positive attitude; (4) received several unsolicited recommendations from Borough

citizens; (5) had experience handling police business in a small borough, particularly

enforcing the Borough’s local ordinances; (6) had experience handling the Borough’s

Police Department’s budget; (7) was known to be dependable and exceeded the

4

expectations of the Borough Council; (8) was mentored by former Chief of Police

Phillips, who recommended that she replace him upon his retirement; and (9) had

successfully filled in as the acting Chief of Police when former Chief of Police

Phillips was out on medical leave. (R.R. at 112a, 152a-53a; Trial court op. at 7.)

In addition, the Borough submitted a document detailing the general

statement of duties, typical examples of work, and desirable qualifications for the

Chief of Police position. In his deposition, Hoy testified that he met all of the

requirements for the position as outlined in this document. However, Hoy also

testified that he never prepared a budget for a police department; did not have

experience working with a mayor and/or council of a small borough; did not

specifically deal with MPOETC regulations while working for the Pennsylvania State

Police; and never had to patrol or visit the Borough for police-related business.

Nevertheless, Hoy proffered testimony from Borough residents who stated, in

general, that Hoy enjoys a good reputation in the community and expressed their

belief that he was more qualified for the position of Chief of Police than Beachy.

(R.R. at 94a-97a, 174a-75a, 234a-35a, 255a, 366a-69a.)

At the close of discovery, on August 7, 2014, the Borough filed a motion

for summary judgment, contending that Hoy failed to adduce sufficient evidence to

make out a case for gender and/or age discrimination. By memorandum and order

dated March 9, 2015, the trial court granted the Borough’s motion.

In its memorandum, the trial court first concluded that under the burden-

shifting paradigm for employment discrimination cases, Hoy failed to carry his initial

burden of establishing a prima facie case. In reaching this conclusion, the trial court

determined that, when compared, Hoy and Beachy were not “similarly situated

persons.” (Trial court op. at 4.) The trial court determined that, unlike Hoy, Beachy

5

was an internal candidate that was already employed by the Borough and previously

served as its acting Chief of Police. Id. at 3-6.

Next, the trial court concluded that even if Hoy established a prima facie

case of discrimination, the Borough offered nine legitimate, nondiscriminatory

reasons for selecting Beachy over Hoy. In doing so, the trial court stated:

Promoting from within a department rather than hiring from

outside is certainly lawful. The [Borough] Council’s

decision to advertise the position and plumb the universe of

qualified candidates, rather than simply adopting [former]

Chief Phillip’s recommendation, should not open the

Borough to charges of discrimination by any rejected

applicant whose gender, age, race, etc., differed from

Beachy’s.

* * *

The only hiring reason which Hoy maintains lacks credulity

is Beachy having been already employed by the Borough

and having acted during Chief Phillip’s leave of absence as

police chief, which he contends is “highly inconsistent”

with advertising the position. On the contrary, the

[Borough] may have advertised for the sake of appearances,

thereby hiding its lawful predisposition to promote Sergeant

Beachy . . . . [Hoy] challenges each other reason with only

his qualifications for the job, from which, he asserts,

discriminatory motivation can be inferred. Equal or even

superior qualifications do not suffice as evidence of pretext

. . . . Not interviewing applicants to determine their

qualifications may have been imprudent or ill-advised, but

is not evidence of an intent to discriminate against Hoy on

the basis of his age or gender.

(Trial court op. at 6-7.)

6

Hoy filed a notice of appeal,2 and the trial court ordered him to file a

Pa.R.A.P. 1925(b) statement. After Hoy filed his statement, the trial court relied

upon its memorandum and order dated March 9, 2015, to satisfy its obligations under

Pa.R.A.P. 1925(a) and justify its grant of summary judgment in favor of the Borough.

Discussion

Employment Discrimination Law

Here, Hoy asserted claims for gender and age discrimination under the

PHRA. Importantly, claims brought under the PHRA are analyzed under the same

standards as their federal counterparts and, therefore, Pennsylvania courts use federal

interpretations of the federal anti-discrimination statutes to guide and inform our

interpretations of the PHRA. Kroptavich v. Pennsylvania Power and Light Company,

795 A.2d 1048, 1055 (Pa. Super. 2002); see Sarullo v. United States Postal Service,

352 F.3d 789, 797-98 (3d Cir. 2003). In failure-to-hire employment discrimination

cases on the basis of sex or age, Pennsylvania courts employ a three-part burden

shifting analysis developed by the United States Supreme Court. Spanish Council of

York, Inc. v. Pennsylvania Human Relations Commission, 879 A.2d 391, 397 (Pa.

Cmwlth. 2005).

Under this analytical model, a complainant is first required to establish a

prima facie case of discrimination. The Pennsylvania Supreme Court in General

Electric Corp. v. Pennsylvania Human Relations Commission, 365 A.2d 649 (Pa.

1976), adopted the United States Supreme Court’s analysis in McDonnell-Douglas

Corporation v. Green, 411 U.S. 792 (1973), for establishing a prima facie case,

2

Hoy’s notice of appeal was filed with the Superior Court, which, by per curiam order dated

April 13, 2015, transferred the appeal to this Court.

7

which requires a complainant to demonstrate the following: (1) the complainant

belongs to a protected class; (2) he applied for a job for which the employer was

seeking applicants; (3) despite his qualifications, he was not hired; and (4) after the

rejection, the position remained open and the employer continued to seek applicants

from persons of complainant’s qualifications. McDonnell-Douglas, 411 U.S. at 802;

General Electric Corp., 365 A.2d at 655-56. Notably, this prima facie test is

adaptable to accommodate differences in the nature of the discrimination alleged.

Allegheny Housing Rehabilitation Corp. v. Pennsylvania Human Relations

Commission, 532 A.2d 315, 317 (Pa. 1987). This standard is, to be sure, adaptable to

accommodate differences in the nature of the discrimination alleged (e.g., sex rather

than race) and in the action alleged to be improper (e.g., discharge rather than refusal

to hire). “The form it takes, however, must be appropriate to its function, which is to

eliminate the most common nondiscriminatory reasons for the employer’s action.”

Id. at 318 (citation omitted). Ultimately, the burden on the complainant of presenting

a prima facie case is “minimal.” Kroptavich, 795 A.2d at 1055.

If the complainant establishes a prima facie case, a presumption of

discrimination arises, and the burden of production shifts to the employer to articulate

a legitimate, nondiscriminatory reason for the challenged employment decision.

Spanish Council of York, 879 A.2d at 397. However,

[t]he employer’s burden in this second part is one of

production, not persuasion, and thus involves no credibility

assessment. If the employer articulates a legitimate

business explanation, then the presumption of

discriminatory intent created by the employee’s [prima

facie] case is rebutted and the presumption simply drops out

of the picture.

Kroptavich, 795 A.2d at 1055 (internal citations and quotations omitted).

8

Assuming the employer satisfies its burden of production at the second

stage, the third and final part of the analytical framework gives the complainant the

opportunity to show that the legitimate reasons proffered by the employer were

pretexts for what, in reality, was a discriminatory motivation. Id. If this complainant

satisfies this burden, the complainant will survive summary judgment and, at trial,

must convince the factfinder that not only was the employer’s proffered reason false,

but that the real reason was impermissible discrimination. Willis v. UPMC

Children’s Hospital of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015); see Kroptavich,

795 A.2d at 1055.

Stage One: Prima Facie Case

On appeal,3 Hoy contends that the trial court committed legal error in

determining that he failed to state a prima facie case of discrimination on the basis

that he and Beachy were not similarly situated. (See Trial court op. at 3-6.)

According to Hoy, the fourth element of a prima facie case of age or sex employment

discrimination can be satisfied by simply showing that he was not hired under

circumstances that raise an inference of discriminatory action.

In response, the Borough asserts that the trial court properly held that

Hoy had failed to make out a prima facie case because he was unable to satisfy the

3

“Our standard of review of the grant of summary judgment is de novo and our scope of

review is plenary.” Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011). Summary judgment is

appropriate only in those cases where the record clearly demonstrates that there is no genuine issue

of material fact and that the moving party is entitled to judgment as a matter of law. Atcovitz v.

Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221-22 (Pa. 2002) (internal citations omitted). In

assessing a grant of summary judgment, an appellate court must view the record in the light most

favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of

material fact against the moving party. Id.

9

fourth element of the prima facie test: that is, he is not similarly situated to Beachy

because Beachy was an internal candidate and Hoy was not.

In a failure-to-hire case on the basis of sex, the United States Court of

Appeals for the Third Circuit, as well as other circuits, have concluded that the fourth

element of a prima facie case does not impose a similarly situated requirement or the

introduction of what is commonly referred to as comparator evidence. Sarullo, 352

F.3d at 798 n.7 (“The defendants suggest that the fourth element requires a showing

that ‘other similarly situated employees outside [the complainant’s] protected class

were more favorably treated under similar circumstances.’ . . . [T]hat is not the

current law in this or the majority of the circuits. . . . We require only that the plaintiff

show that the employer continued to seek out individuals with similar qualifications

after refusing to rehire the plaintiff under circumstances that raise an inference of

unlawful discrimination.”); see, e.g., Kendrick v. Penske Transportation Services,

Inc., 220 F.3d 1220, 1229 (10th Cir. 2000) (“[C]omparison to a person outside of the

protected class in the fourth prong of the prima facie case is unnecessary to create an

inference of discriminatory discharge.”).4 Instead, proof that a person outside of the

protected class was similarly situated, possessing nearly identical characteristics or

qualifications, although capable of contributing to the development of a prima facie

case, is most appropriately considered after the employer proffers a

nondiscriminatory reason for its action. See Marzano v. Computer Science Corp.,

Inc., 91 F.3d 497, 510-11 (3d Cir. 1996) (“All employees can be characterized as

4

In the context where the employer takes disciplinary action against an employee, some

courts require that the complainant establish, as part of the prima facie burden, that the employer

treated similarly situated employees outside of the class more favorably. See Kampmier v. Emeritus

Corp., 472 F.3d 930, 939 (7th Cir. 2007). Because this is a failure-to-hire case, and not a situation

when an existing employee is reprimanded or discharged, we need not consider whether it is

absolutely necessary for a complainant to adduce such evidence in the latter types of cases.

10

unique in some ways and as sharing common ground with ‘similarly situated

employees’ in some other ways, depending on the attributes on which one focuses,

and the degree of specificity with which one considers that employee’s qualifications,

skills, tasks and level of performance . . . arguments as to the employee’s uniqueness

should be considered in conjunction with, and as part of, the employer’s rebuttal —

not at the prima facie stage.”); Conward v. Cambridge School Committee, 171 F.3d

12, 19-20 (1st Cir. 1999) (“[T]he time to consider comparative evidence in a

disparate treatment case is at the third step of the burden-shifting ritual, when the

need arises to test the pretextuality vel non of the employer’s articulated reason for

having acted adversely to the plaintiff’s interests.”).

In an age discrimination case, the United States Court of Appeals for the

Third Circuit has held that the fourth element of a prima facie case is satisfied where

the complainant can point “to a sufficient age difference between himself and his

replacement such that a fact-finder can reasonably conclude that the employment

decision was made on the basis of age.” Sempier v. Johnson & Higgins, 45 F.3d 724,

729 (3d Cir. 1995). The court in Sempier further explained: “Nor is there any

particular age difference that must be shown. Different courts have held, for instance,

that a five year difference can be sufficient, but that a one year difference cannot.”

Id. at 729 (citations omitted). Applying these principles, the court concluded that a

fourteen year difference in age “is clearly sufficient to satisfy the fourth prong of a

prima facie case by raising an inference of age discrimination.” Id. at 730; see

Maxfield v. Sinclair International, 766 F.2d 788, 793 (3d Cir. 1985) (holding that a

“plaintiff may establish the fourth element of the . . . test for a prima facie case by

showing that s/he was replaced by a person sufficiently younger to permit an

inference of age discrimination” and concluding that the plaintiff’s replacement by an

11

employee more than twenty years younger was sufficient to satisfy this test). Apart

from showing age differential, the fourth element of a prima facie case does not

require that the complainant and the hired employee be similarly situated.

Therefore, based upon this case law, we conclude that the trial court

erred as a matter of law in requiring Hoy to demonstrate that he and Beachy were

similarly situated – in the sense that both were internal candidates from within the

Borough’s police force – as a necessary predicate in order to make out a prima facie

case.

Hoy also argues that, irrespective of whether he was required to establish

that he and Beachy were similarly situated, he met his burden at the prima facie

stage. The United States Supreme Court has cautioned that the prima facie

requirement for making out a discrimination claim “is not onerous” and poses “a

burden easily met.” Texas Department of Community Affairs v. Burdine, 450 U.S.

248, 253 (1981); see Marzano, 91 F.3d at 508 (describing the burden of presenting a

prima facie case as “relatively simple” and “easily made out”) (citations omitted).

For purposes of this appeal, we assume, without expressly deciding, that Hoy met the

initial burden of demonstrating a prima facie case. The record establishes that Hoy,

at first blush, was objectively qualified for the position of Chief of Police and the

Borough decided to a hire a substantially younger (approximately twenty-six years

younger) female instead. To us, these facts appear to be enough to sustain the burden

of proving a prima facie case. See, e.g., Equal Employment Opportunity Commission

v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193-94 (10th Cir. 2000); Evans

v. Technologies Applications, 80 F.3d 954, 959-60 (4th Cir. 1996); see also Sempier,

45 F.3d at 729-30.

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Regardless of the trial court’s legal error in requiring a showing that the

complainant and hired employee were similarly situated at the prima facie stage, the

use of comparator evidence and the concept of similarly situated employees often

converge at both the prima facie and pretextual stages. See Coleman v. Donahoe,

667 F.3d 835, 846 (7th Cir. 2012). Consequently, the trial court’s legal error does not

automatically dictate reversal; rather, in order for a trial court’s erroneous

determination to be reversible, it must be harmful or prejudicial to the complaining

party. Garner v. Pennsylvania Human Relations Commission, 16 A.3d 1189, 1200

(Pa. Cmwlth. 2011).

Stages 2 and 3: Legitimate, Nondiscriminatory Reason and Evidence of Pretext

In this case, the parties do not dispute that the Borough satisfied its

rebuttal burden of proffering legitimate, nondiscriminatory reasons for not hiring

Hoy. (Hoy’s brief at 30; the Borough’s brief at 32.) As a result, the burden shifted

back to Hoy to demonstrate that the Borough’s reasons were a pretext for a

discriminatory motive. Here, the trial court held, in the alternative, that even if Hoy

established a prima facie case, he did not adduce sufficient evidence of pretext.

(Trial court op. at 6-7.) If the trial court is correct, then its legal error described

above is a harmless technicality and will not serve as a ground for reversal. See

Henley v. Zoning Hearing Board of West Fallowfield Township, 625 A.2d 132, 134

n.4 (Pa. Cmwlth. 1993) (“Even if this Court agrees that [the complaining party] met

this initial burden, because we hold that the five other requirements were not met,

such error is harmless.”). The defining issue, therefore, becomes whether Hoy

adduced sufficient evidence of pretext to withstand summary judgment.

13

In this regard, Hoy asserts that the Borough’s reasons were pretextual in

a collage of arguments, first pointing out that all of the twenty-six applicants,

including himself, were male, and that the only female in the mix, Beachy, was hired.

He then attempts to attack the Borough’s reasons by comparing his experience and

qualifications with that of Beachy’s, contending that he worked for twenty-five years

with the Pennsylvania State Police and supervised nine to ten officers, while

Beachy’s background “pales in comparison.” (Hoy’s brief at 33.)

In a similar vein, Hoy posits that he: “has as much, if not more,

community involvement” than Beachy; never was interviewed and, therefore, did not

have the chance to prove that he has a “positive attitude” like Beachy; is “fully

capable of following a budget;” “is dependable” and submitted letters of

recommendation from his superior officers; and adduced evidence “that the

reputation of the police department with the community declined after Beachy’s

appointment.” Id. at 33-41. Continuing onward, Hoy asserts that the Borough’s

justifications for hiring an internal applicant are inconsistent with the fact that the

Borough advertised for the position of Chief of Police. For these reasons, Hoy claims

that genuine issues of material fact exist as to whether the Borough’s reasons for not

hiring him were a pretext for age and/or gender discrimination.

Conversely, the Borough argues that Hoy’s proposed evidence is

woefully inadequate to prove pretext. The Borough submits that, unlike Beachy, Hoy

had never worked for the Borough; did not receive recommendations from the

Borough’s citizens; did not have experience handling police business in a small town;

never served as acting Chief of Police of the Borough; and did not receive an

endorsement from the prior Chief of Police.

14

In addition, the Borough asserts that even if Hoy possessed equal or

somewhat superior qualifications, this does not prove pretext because an examination

of qualifications is only relevant as to whether the Borough made the “right” hiring

decision and does not tend to establish a discriminatory motive. According to the

Borough, it is not within the discretion of the courts to re-write an employer’s hiring

policy and courts are ill-equipped to assume the role of a hiring committee.

Under the law, there are two ways in which a complainant can

demonstrate that the employer’s legitimate, nondiscriminatory reasons were

pretextual; that is, a mask for discrimination. Willis, 808 F.3d at 644.

The first way to show pretext is for the complainant to point to evidence

that would allow a factfinder to disbelieve the employer’s reason for the adverse

employment action. Id. at 644 (citation omitted). In order to raise sufficient

disbelief, the complainant must point to “weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons [such] that a reasonable factfinder could rationally find them

unworthy of credence and hence infer that the proffered nondiscriminatory reason did

not actually motivate the employer’s action.” Kroptavich, 795 A.2d at 1059

(citations omitted). With respect to the employer’s business reasons for not hiring a

complainant, the question is not whether the employer made the best, or even a

sound, business decision; instead, it is whether the real reason for the employment

decision is discrimination. Keller v. ORIX Credit Alliance, 130 F.3d 1101, 1109 (3d

Cir. 1997).

The second way a complainant can establish pretext is to point to

evidence that would allow a factfinder to believe that an invidious discriminatory

reason was “more likely than not a motivating or determinative cause” of the

15

employer’s action. Willis, 808 F.3d at 645. As the Court in Willis explained,

pointing to evidence demonstrating any of the following satisfies this second way to

prove pretext: (1) the employer previously discriminated against the complainant; (2)

the employer discriminated against others within the complainant’s protected class; or

(3) the employer has treated similarly situated individuals or “comparators” more

favorably. Id. at 645 (citations omitted). With respect to the third means by which to

establish pretext, although “similarly situated” does not mean that the complainant

and comparators must be “identically situated,” a complainant must demonstrate that

his alleged comparators are “alike in all relevant respects.” Startzell v. City of

Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008).

In conducting this pretext analysis, though, the United States Supreme

Court has emphasized that “a reason cannot be proved to be a pretext for

discrimination unless it is shown both that the reason was false, and that

discrimination was the real reason.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502,

515 (1993) (emphasis in original, citation and internal quotation marks omitted).

At the outset, we note that Hoy does not contend that the Borough

previously discriminated against him or has a history of discriminating against others

who were males or over the age of forty. Significantly, the fact that the Borough

preferred to hire an internal candidate who had received the recommendation of the

previous Chief of Police is a legitimate and compelling reason not to hire Hoy, who

was an external candidate with no such recommendation. See Perkins v. Doyon

Universal Services, 151 P.3d 413, 417 (Alaska 2006) (“Preferring internal candidates

is a legitimate and non-discriminatory reason for [the employer’s] action with respect

to this position.”); Summers v. Harvard University, 397 F.Supp. 2d 166, 173 (D.

Mass. 2005). These same facts also establish that Beachy, Hoy, and the remaining

16

male applicants are not similarly situated persons (or sufficient comparators) for

purposes of proving pretext. See also Royster v. Laurel Highlands School District,

994 F.Supp. 2d 701, 714 (W.D. Pa. 2014) (concluding that the internal and external

candidates were not similarly situated individuals for purposes of establishing

pretext).

Contrary to Hoy’s argument, the Borough’s preference toward an

internal applicant is in no way undermined by the fact that it advertised the position

to outside candidates. There is nothing in the record to infer that the Borough’s

decision to advertise the position was for any reason other than that the Borough

sought to find candidates that were potentially more suitable than Beachy but its

pursuit proved to be unsuccessful. Therefore, Hoy has not produced sufficient

evidence under the second Willis standard for proving pretext, and, unless he can

establish demonstrable weaknesses, implausibilities, inconsistencies, or

contradictions in the Borough’s proffered legitimate reasons (the first Willis standard

for proving pretext), the trial court properly entered summary judgment in favor of

the Borough.

As evidenced from Hoy’s arguments reproduced above, the gravamen of

his point can be summed up from an excerpt from his brief: “Hoy’s experience as a

[twenty-five-year] state police veteran trumps [Beachy’s] small town police work

experience.” (Hoy’s brief at 34.) Although Hoy asserts that he is “more qualified

and had more experience in police work” than Beachy, he admits that “both were

objectively qualified to perform the Chief of Police position.” (Id. at 27.)

“To discredit the employer’s proffered reason, however, the

[complainant] cannot simply show that the employer’s decision was wrong or

mistaken, since the factual dispute at issue is whether discriminatory animus

17

motivated the employer, not whether the employer is wise, shrewd, prudent, or

competent.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). This proposition

stems from the concept that courts “will not second guess business decisions made by

employers, in the absence of some evidence of impermissible motives.” Lucas v.

Dover Corp., 857 F.2d 1397, 1403-04 (10th Cir. 1988). In determining whether to

hire a candidate, an employer can rely not only on objective facts, but also on

subjective reasons and/or characteristics that it believes renders a particular candidate

most suitable for the position. Chapman v. AI Transport, 229 F.3d 1012, 1033-34

(11th Cir. 2000) (en banc). As the United States Supreme Court has stated: “[T]he

employer has discretion to choose among equally qualified candidates, provided the

decision is not based upon unlawful criteria. The fact that a court may think that the

employer misjudged the qualifications of the applicants does not in itself expose him

to . . . liability.” Burdine, 450 U.S. at 259. To be sure, a complainant “may not

establish that an employer’s proffered reason is pre-textual merely by questioning the

wisdom of the employer’s reasons, at least not where . . . the reason is one that might

motivate a reasonable employer.” Combs v. Plantation Patterns, 106 F.3d 1519,

1543 (11th Cir. 1997).

Although evidence showing that an employer hired a less qualified

applicant over the complainant may be probative of whether the employer’s proffered

reason for not promoting the plaintiff was pretextual, a complainant cannot establish

pretext simply by showing that she is more qualified than the person hired. Cofield v.

Goldkist, Inc., 267 F.3d 1264, 1268 (11th Cir. 2001).

In Deines v. Texas Department of Protective & Regulatory Services, 164

F.3d 277 (5th Cir. 1999), the United States Court of Appeals for the Fifth Circuit

stated that:

18

[D]isparities in qualifications must be of such weight and

significance that no reasonable person, in the exercise of

impartial judgment, could have chosen the candidate

selected over the plaintiff for the job in question. This

evidentiary standard does not alter the plaintiff’s

evidentiary burden to prove the fact of intentional

discrimination by a preponderance of the evidence. Instead,

the standard only describes the character of this particular

type of evidence that will be probative of that ultimate fact.

Id. at 280-81. The court concluded that: “It is hardly a basis for the jury to find

mendacity on the part of the employer when its judgments on qualifications are

somewhere within the realm of reason. There is then, for the purposes of proving

pretext, a difference in simply ‘second-guessing’ an employer’s judgment and finding

proof of mendacity.” Id. at 282.

In Simms v. Oklahoma ex rel. Department of Mental Health and

Substance Abuse Services, 165 F.3d 1321 (10th Cir. 1999), the United States Court of

Appeals for the Tenth Circuit articulated a similar evidentiary burden for proving

pretext. The court explained that:

an employee’s own opinions about his . . . qualifications [do

not] give rise to a material factual dispute . . . . When two

candidates are equally qualified in that they both possess

the objective qualifications for the position and neither is

clearly better qualified, it is within the employer’s

discretion to choose among them so long as the decision is

not based on unlawful criteria.

Id. at 1329-30 (internal quotations and citations omitted). The court emphasized that

its “role is to prevent unlawful hiring practices, not to act as a ‘super personnel

department’ that second-guesses employers’ business judgments.” Id. at 1330.

Here, in his brief, Hoy concedes that both he and Beachy were

objectively qualified for the position. (Hoy’s brief at 27.) This Court has held that

19

“[a] party’s statements in its brief . . . are treated as a judicial admission.”

Bartholomew v. State Ethics Commission, 795 A.2d 1073, 1078 (Pa. Cmwlth. 2002)

(citation omitted). Judicial admissions are formal concessions “which have the effect

of withdrawing a fact from issue and dispensing it without the need for proof of the

fact.” Id. At the end of the day, Hoy’s factual concession is fatal to his arguments on

appeal and, under the law enunciated above, conclusively establish that he cannot

prove pretext.

Moreover, the evidence of record supports the reasons given by the

Township for choosing Beachy as uniquely qualified for the position and at least as

qualified as Hoy in this regard. The Township considered that Beachy had worked

for the Borough’s police department as a Sergeant, temporarily served as its Chief of

Police, had recommendations from a number of residents, acquired budget experience

and experience with enforcement of local ordinances in the Township, was mentored

by the Chief of Police and had his recommendation. The record does not reflect a

disparity in qualifications great enough to qualify as pretext, and, as such, a

reasonable jury could not legitimately infer that the Borough consciously selected a

less-qualified and unworthy candidate “unless some other strong consideration, such

as discrimination, enter[ed] into the picture.” Aka v. Washington Hospital Center,

156 F.3d 1284, 1294 & 1299-1300 (D.C. Cir. 1998) (en banc). Even if this Court in

recognizing Hoy’s twenty-five years of service as a Pennsylvania State Trooper,

disagreed with the Borough’s determination that Beachy was the superior candidate

for the position of Chief of Police, the parties do not dispute that the Borough met its

rebuttal burden of proffering nondiscriminatory reasons for not hiring Hoy and we

simply cannot conclude, based upon the current record, that the Borough’s proffered

justifications for preferring Beachy over Hoy were so unworthy of credence as to

20

support a finding of discriminatory intent.5, 6 The trial court, accordingly, did not err

in granting summary judgment in favor of the Borough.

Conclusion

For the above-stated reasons, we conclude that the trial court committed

legal error in determining that Hoy, as a necessary predicate to establishing a prima

facie case, was required to show that he and Beachy were similarly situated.

However, this error was harmless and had no effect on the trial court’s ultimate

disposition of this case. As more fully explained in our memorandum opinion, Hoy’s

admission in his brief defeats his claims as a matter of law and his evidence is legally

insufficient to establish that the Borough’s legitimate, nondiscriminatory reasons for

5

Hoy further contends that the Borough “touted the fact that Beachy was the first female

Chief of Police for the Borough according to an article that appeared in the Meadville newspaper.”

(Hoy’s brief at 28.) To the contrary, there is nothing in the article to suggest that the Borough made

any gender-biased comments in the article; indeed, Waite testified that he was not aware that

Beachy was the first female Chief of Police in the county until he read the article. (R.R. at 309a.)

Moreover, the only portion of the article cited by Hoy and contained in the reproduced record is the

cover page of the newspaper, which contains the caption “Historic hire,” a picture of Beachy, and

the following statement: “Beachy is new chief of the [Borough’s] Police Department and the first

woman chief of police in Crawford County.” (R.R. at 393a.) Even if this statement is true and

could somehow be attributed to the Borough, it does not support an inference of discriminatory

intent. If it could, then any company would be subjected to discrimination liability on the sole basis

that it hired its first black, female, Irish, etc. individual at a certain position.

6

Hoy also references the fact that the Borough’s rejection letters were dated June 27, 2012,

and although acknowledging that the uncontroverted evidence establishes that this was a

typographical error, he seems to suggest that the Borough Council hired Beachy at the June 19,

2012 executive session rather than at the July 2, 2012 Council meeting that was open to the public.

Assuming such an inference can be drawn from the evidence, we fail to see how it has any

probative force in proving pretext where the candidates were narrowed down to Beachy and Hoy at

the June 19, 2012 executive session. (R.R. at 294a-95a.) Regardless of when Beachy was officially

hired over Hoy, the decision was made and the issue in this case is whether the Borough engaged in

impermissible discrimination when it chose to hire Beachy instead of Hoy.

21

hiring Beachy were a pretext for discrimination. Therefore, the trial court properly

determined that the Borough was entitled to summary judgment as a matter of law.

Accordingly, we affirm the trial court’s March 9, 2015 order.

________________________________

PATRICIA A. McCULLOUGH, Judge

22

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William R. Hoy, :

Appellant :

: No. 1005 C.D. 2015

v. :

:

Borough of Cochranton :

ORDER

AND NOW, this 21st day of December, 2016, the March 9, 2015 order

of the Court of Common Pleas of Crawford County is hereby affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge