Caroline Dellapenna v. Tredyffrin/easttown School Dis

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-1394

_____________

CAROLINE DELLAPENNA,

Appellant

v.

TREDYFFRIN/EASTTOWN SCHOOL DISTRICT,

DANIEL WATERS, and MICHAEL AZZARA.

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-09-cv-06110)

District Judge: Hon. Timothy J. Savage

_____________

Submitted under Third Circuit LAR 34.1(a)

October 27, 2011

Before: SLOVITER, GREENAWAY, JR. and ALDISERT, Circuit Judges.

(Opinion Filed: October 28, 2011)

____________

OPINION OF THE COURT

____________

ALDISERT, Circuit Judge.

Caroline Gu Dellapenna appeals the order of the District Court for the Eastern

District of Pennsylvania granting summary judgment to the Tredyffrin/Easttown School

District and its employees, Daniel Waters and Michael Azzara, (collectively, “TESD”) on

her claims of employment discrimination and retaliation. Invoking Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-2, and the Pennsylvania Human Relations Act, 43

P.S. § 951 (“PHRA”), Dellapenna contends that TESD fired her as its director of finance

because of her race, gender, and national origin, and because she complained about

discrimination. After reviewing the record, we conclude that Dellapenna’s evidence falls

far short of supporting claims of employment discrimination or retaliation. We will

affirm the judgment of the District Court.

I.

Because we write primarily for the parties, who are familiar with the facts and the

proceedings in the District Court, we will revisit them only briefly. Caroline Gu

Dellapenna is a naturalized American citizen originally from China. TESD hired her as

Controller in 1996, promoted her to Director of Finance in June 2006, and terminated her

in January 2007. Among her other obligations at TESD, Dellapenna was responsible for

preparing the district’s annual financial report.

At the end of June 2006, shortly after Dellapenna’s tenure as finance director

began, TESD’s outside auditor uncovered a range of accounting irregularities, including

over a million dollars of overstated accrued expenses. In September 2006 Michael

Azzara, TESD’s Chief Operations Officer and Dellapenna’s supervisor, was informed by

the personnel director about disconcerting complaints regarding Dellapenna’s

performance. Specifically, two employees working under Dellapenna had alleged that she

regularly abused and berated her staff while instructing them to use improper accounting

methods. Azzara subsequently interviewed the staff members and documented their

grievances.

2

Based on the above, and suspecting Dellapenna of having committed fraud, TESD

hired a forensic accountant to audit Dellapenna’s work on October 9, 2006. Michael

Waters, the district superintendent, informed Dellapenna that members of her staff had

voiced grievances regarding her professional and interpersonal conduct. Waters advised

her that he would discuss these allegations fully upon the completion of the district’s

annual financial report. Several days later, Dellapenna requested documentation of the

complaints against her. Waters reiterated that he would await the completion of the

annual financial report before discussing the allegations.

On November 21, 2006, Dellapenna complained to Waters about statements she

had overheard Azzara make on the telephone, in which he allegedly accused her of fraud.

She requested an investigation into Azzara’s conduct. Waters agreed to review these

accusations as well after the annual financial report was complete. On December 15,

2006, Dellapenna again complained about similar comments she had overheard Azzara

make during another telephone conversation.

On December 20, 2006, Waters finally met with Dellapenna to discuss her staff’s

allegations about her “demeaning and humiliating treatment.” App. 00583-00585, 00374-

00375. Shortly thereafter, the independent auditor concluded that no fraud had occurred.

Instead, the auditor found, the accounting department’s procedures were not “in

conformity with generally accepted accounting principles,” Dellapenna was “aware” of

this, and she intentionally flouted prevailing accounting methods without the school

district’s knowledge or approval. App. 00689-00703. The auditor concluded that the

accounting department was “dysfunctional,” Dellapenna and her staff maintained “poor

communication,” “personality conflict issues” abounded, and that this dysfunction

3

needed to be addressed before the accounting department could perform its appointed

tasks adequately. Id.

On January 5, 2007, the day after the auditor released this report, Dellapenna

complained to Waters that she had been subjected to a hostile work environment and was

mistreated because of her “age, gender, race, and/or ethnic background.” App. 00882. In

accordance with school district policy, Waters referred Dellapenna’s grievances to an ad

hoc committee. On January 16, 2007, Dellapenna again complained to the school district,

stating that Azzara’s previous statements regarding her accounting methods were

groundless. She raised no new claims or evidence regarding discrimination.

On January 25, 2007, the school district sent Dellapenna a summary of the ad hoc

committee’s review of her complaints. The committee concluded that Azzara’s telephone

conversations were not motivated by discrimination and noted that Dellapenna had failed

to offer any evidence of discrimination notwithstanding the district’s requests that she do

so. The committee also concluded that Dellapenna’s “substantial misconduct” justified

her termination. In a letter sent on January 26, 2007, Waters informed Dellapenna that

TESD was firing her for cause, based on her “willful, wanton and/or gross misconduct as

well as material and substantial dishonesty.” App. 00773. Waters advised Dellapenna that

she had a right to a hearing. She declined the invitation, even though Waters informed her

that a failure to request a hearing would result in her immediate discharge.

Dellapenna filed a complaint in the District Court, alleging race, gender, and age

discrimination, as well as unlawful retaliation under Title VII and the PHRA.1 On

January 13, 2011, the District Court granted summary judgment to TESD, concluding

that Dellapenna’s evidence did not satisfy the prima facie requirements for a

1

Dellapenna has since dismissed her age discrimination claims.

4

discrimination claim. Even if such a prima facie case could be made, moreover, the

District Court found that TESD had articulated a legitimate, nondiscriminatory reason for

its actions, and Dellapenna had failed to show that these reasons were a pretext for

discrimination. The Court also found Dellapenna’s allegations of hostile work

environment and retaliation meritless. Dellapenna filed a timely appeal.

II.

The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate

jurisdiction under 28 U.S.C. § 1291. “We exercise plenary review of the District Court’s

grant of summary judgment, applying the same legal standard” as it should have. Vitalo

v. Cabot Corp., 399 F.3d 536, 542 (3d Cir. 2005). A party is entitled to summary

judgment “if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Rule 56(a), Federal Rules of

Civil Procedure. We view the record in the light most favorable to Dellapenna and draw

all reasonable inferences in her favor. See Vitalo, 399 F.3d at 542. We apply this standard

with “added rigor in employment discrimination cases, where intent and credibility are

crucial issues.” Stewart v. Rutgers State Univ., 120 F.3d 426, 431 (3d Cir. 1997) (citation

omitted). To defeat summary judgment, however, Dellapenna must “show[] that the

materials cited do not establish the absence . . . of a genuine dispute.” Rule 56(c)(1)(B).

This requires showing something more than the “mere existence of a scintilla of

evidence” for elements on which she bears the burden of production. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986). “An inference based upon speculation or

conjecture does not create a material fact.” Robertson v. Allied Signal, Inc., 914 F.2d

360, 382 n.12 (3d Cir. 1990).

5

III.

Dellapenna contends that TESD violated Title VII and the PHRA by firing her

because of her gender, race, and national origin, and because she complained about such

discrimination.2 Because the evidence, even when construed in Dellapenna’s favor, does

not support claims of discrimination or retaliation, we will affirm the District Court’s

grant of summary judgment. We address both of Dellapenna’s contentions in turn.

A.

Dellapenna first contends that she was discriminated against and ultimately fired

because of discriminatory animus based on her race, national origin, and gender. As

Dellapenna lacks direct evidence of this discrimination, her claim falls under the burden-

shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under McDonnell Douglas, the plaintiff bears the initial burden of demonstrating a prima

facie case of unlawful discrimination or retaliation. See id. at 802. If the plaintiff

succeeds, the burden of production shifts to the employer to articulate a legitimate,

nondiscriminatory reason for its decision. Id. Once the employer meets this “relatively

light burden,” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994), the burden of

production returns to the plaintiff, who can defeat summary judgment only by showing

by a preponderance of the evidence that the employer’s stated reason is pretextual. See id.

Accordingly, once an employer has stated a legitimate and nondiscriminatory reason, the

2

Under Title VII, it is unlawful 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). Title

VII also prohibits an employer from discriminating against an employee because she has

opposed an unlawfully discriminatory employment practice. See id. § 2000e-3(a).

Claims arising under the PHRA are governed by the same standards set forth in Title VII

for determining summary judgment motions. See Jones v. School Dist. of Phila., 198

F.3d 403, 409 (3d Cir. 1999).

6

plaintiff must produce evidence that either “(1) casts sufficient doubt upon each of the

legitimate reasons proffered by the defendant so that a factfinder could reasonably

conclude that each reason was a fabrication; or (2) allows the factfinder to infer that

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

termination. Id. at 762. Because the ultimate issue is whether “discriminatory animus

motivated the employer,” it is not enough to show that the employer made a “wrong or

mistaken” decision. Id. at 765 (citations omitted). Rather, the plaintiff must uncover

“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the

employer’s explanations that would permit a reasonable factfinder to believe that the

employer did not actually act for its stated reasons. Id.

In applying this framework here, Dellapenna’s contentions fall short at each step

of the McDonnell Douglas framework: she raises no issue of material fact with respect to

her prima facie case nor TESD’s allegedly pretextual reasons for firing her.

1.

For Dellapenna’s prima facie case of intentional discrimination, she must show

that: (1) she is a member of a protected class; (2) she was qualified for the position; (3)

she suffered an adverse employment action; and (4) the school district treated similarly

situated persons who are not members of the protected class—i.e., persons who behaved

like Dellapenna but who are neither female, ethnically Chinese, nor from China—more

favorably than her. See Jones, 198 F.3d at 410-411; see also Sarullo v. U.S. Postal Serv.,

352 F.3d 789, 797-798 (3d Cir. 2003). Because some cases of discrimination involve a

plaintiff who can find no similarly situated persons, Dellapenna may also meet her

burden on the fourth element—the only one in dispute here—by producing evidence of a

“causal nexus between the harm suffered and [her] membership in a protected class, from

7

which a reasonable juror could infer, in light of common experience, that [TESD] acted

with discriminatory intent.” Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 275 (3d

Cir. 2010).

We are not persuaded that Dellapenna has made a prima facie case of

discrimination. First, Dellapenna has not submitted any evidence that the school district

treated any male or non-Chinese employee more favorably than her, much less a

“similarly situated” one who improperly discharged his job responsibilities and

mistreated subordinates. Second, although Dellapena is entitled to rely on a “broad array

of evidence” in demonstrating a causal link between her protected status and her

termination, Marra v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007) (citation

omitted), she has failed to show that such a link exists.3 Dellapenna points almost solely

to the timing of her firing to establish the requisite causal nexus. Specifically, she

contends that her January 5, 2007, letter complaining about discrimination and her

subsequent firing 14 days later compel an inference of discriminatory intent, not just

retaliation. Although a close temporal proximity between events may, in some instances,

suffice to show a causal link, see id., we cannot ignore the overwhelming weight of the

3

Dellapenna contends that she has satisfied the causation element because TESD hired a

white male to replace her, citing Matczak v. Frankford Candy & Chocolate Co., 136 F.3d

933, 939 (3d Cir. 1997), which permitted a plaintiff to show a causal nexus with evidence

that her position was filled by a person not belonging to the protected class. To the extent

Dellapenna contends that Matczak makes this fact dispositive, she is mistaken. Matczak

reinforces the simple notion that we do not “woodenly” demand proof of disparate

treatment for a prima facie case, but instead may look to “alternative” evidence—such as

a replacement’s gender and race—in our search for a causal nexus. Id. Although

Dellapenna’s replacement’s race and gender inform our causal nexus analysis, they do

not control it. Matczak and Anderson, 621 F.3d at 275, merely hold that we should not

dismiss a case solely because of a technical failure to show disparate treatment, but

should examine whether other evidence is indicative of discriminatory causation. Here,

neither Dellapenna’s replacement nor any other evidence raises an inference of a causal

nexus between her race, gender, or national origin and her termination.

8

undisputed evidence that countervails any causal relationship between Dellapenna’s

gender, race, or national origin and her termination. The school district began scrutinizing

Dellapenna’s managerial and accounting practices in October. By that point, an audit had

already uncovered rampant accounting errors. Her subordinates had lodged several

complaints about her. And an independent firm found her management during this period

to be so deficient that her department deserved the label “dysfunctional.” That

Dellapenna lodged allegations after her employment was in obvious peril does not, in

itself, create a plausible inference of a connection between her protected status and her

firing. Moreover, even if her last-minute allegations were somehow connected to her

firing, such a fact would go to her retaliation claim, not her prima facie discrimination

claim.

At bottom, there is nothing in the record suggesting that Dellapenna was fired

because of her race, national origin, or gender. Dellapenna instead submits for our

consideration only her subjective suspicions of discrimination, which are not sufficient to

create an issue of material fact. See Robertson v. Allied Signal, Inc., 914 F.2d 360, 382

n.12 (3d Cir. 1990); cf. Waggoner v. Garland, 987 F.2d 1160, 1164 (5th Cir. 1993).

Dellapenna simply has not “shown that the materials cited do not establish the absence

. . . of a genuine dispute.” Fed. R. Civ. P. 56(c)(1). We therefore agree with the District

Court that Dellapenna has not satisfied her burden of showing a prima facie instance of

discrimination.

B.

Although Dellapenna’s failure to make a prima facie case alone justifies summary

judgment, we will briefly address the remaining two McDonnell Douglas steps for

thoroughness. TESD has clearly articulated legitimate and nondiscriminatory reasons for

9

firing Dellapenna: she verbally abused her staff, intentionally misstated accounting

records, and ordered her subordinates to do the same. These legitimate reasons shift the

burden to Dellapenna to prove pretext. See Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir.

2007). To defeat summary judgment, Dellapenna must produce evidence from which a

factfinder could reasonably either disbelieve TESD’s legitimate reasons, or believe that

discrimination was more likely than not a motivation for her termination. See id.

Dellapenna has not highlighted any evidence that could reasonably support an

inference of pretext. She relies heavily on a comment Azzara allegedly made, in which he

said that “his wife does not work and he brings the bacon home and he likes it that way.”

Dellapenna v. Tredyffrin/Eastown Sch. Dist., No. 09-6110, 2011 WL 130156, at *8 (E.D.

Pa. Jan. 13, 2011). Dellapenna has framed this statement to mean that Azzara has a

prejudice against working women. This comment’s probativeness of Azzara’s anti-

woman animus is marginal; its probativeness that decisionmakers in the school district

harbored discriminatory intent is nil. Azzara had no decisionmaking authority vis-à-vis

Dellapenna’s termination. See App. 00607, 00656. Rather, the school board fired

Dellapenna after she refused a hearing. See id. at 00810. We do not afford much weight

to stray remarks made by nondecisionmakers. See Pivirotto v. Innovative Sys., 191 F.3d

344, 359 (3d Cir. 1999).

Moreover, the contention that Azzara’s accusations of fraud are somehow

probative of unlawful discrimination and pretext borders on frivolous. Dellapenna does

not even attempt to tie together the logical links required to show how allegations of

fraud point to a discriminatory intent. She instead merely speculates that she “cannot

imagine why he [would say this], other than, . . . because of [her] age, [her] race, [her]

gender and [her] national origin.” App. at 00392-00393. Absent evidence that Azzara

10

treated other similarly situated employees differently, these alleged statements, if real,

relate solely to Dellapenna’s job performance, not her protected status. Dellapenna points

to several other employee interactions to prove this element, but none of this evidence

could support even the faintest inference of pretext. As her accusations about Azzara’s

comments exemplify, the entirety of Dellapenna’s pretext “evidence” constitutes nothing

more than conjectures of discrimination conjured from otherwise routine workplace

interactions between supervisors and a recalcitrant subordinate. Especially in the face of

the school district’s unrebutted evidence of her abysmal performance as Director of

Finance, Dellapenna’s remaining accusations deserve no further discussion, as mere

speculation does not create genuine issues of material fact. See Robertson, 914 F.2d at

382 n.12 (3d Cir. 1990). Dellapenna has not met the light burden of McDonnell Douglas

and Rule 56(a) in showing pretext. Summary judgment was appropriate.

IV.

We further hold that Dellapenna’s contentions regarding retaliation are baseless.

To establish a prima facie case of retaliation, Dellapenna must show that: (1) she engaged

in protected activity; (2) she suffered an adverse employment action; and (3) a causal link

exists between the protected activity and the adverse employment action. Jalil v. Avdel

Corp., 873 F.2d 701, 708 (3d Cir. 1989). Again, only the last element is now in

contention. We conclude that Dellapenna has failed to sustain a prima facie claim of

retaliation because she does not demonstrate how her firing was causally related to her

complaints of discrimination. As a result, we agree with the District Court that

Dellapenna cannot maintain a prima facie case of retaliation.

Similar to the framework we impose on a discrimination claim, Dellapenna must

show that her termination was motivated by her complaints. See Moore v. City of Phila.,

11

461 F.3d 331, 342 (3d Cir. 2006). If she succeeds, she must then show that the district’s

stated reason for firing her is pretextual. Id. Dellapenna misses the mark at both steps.

She cannot show that her firing at the end of a months-long investigation into her

accounting practices was the result of a complaint she made after the investigation had

begun. Indeed, the record shows that Azzara did not learn of Dellapenna’s complaints

about him until after she had already left the school district, see App. 00256, 00711, nor

did Waters know that he had also been accused of discriminating against Dellapenna until

the inception of this lawsuit, see id. at 00664-00665. Furthermore, even if Dellapenna

could make out a prima facie case of retaliation, she would be unable to defeat summary

judgment on the issue of pretext. As discussed above, the school district had ample

reason to terminate Dellapenna. Dellapenna’s speculations to the contrary create no

issues of material fact.

IV.

Having examined the facts in the light most favorable to Dellapenna and drawn all

reasonable inferences in her favor, we agree with the District Court that there is

insufficient evidence from which a reasonable jury could conclude that Appellees had

discriminated against Dellapenna because of her race, national origin, or gender. Because

judgment as a matter of law was appropriate, we will AFFIRM the judgment of the

District Court.

12