Shirley Fichter v. AMG Resources Corporation

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-3302

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SHIRLEY FICHTER,

Appellant

v.

AMG RESOURCES CORPORATION

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 2:10-cv-00367)

District Judge: Honorable Terrence F. McVerry

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

June 11, 2013

Before: SCIRICA, HARDIMAN and VAN ANTWERPEN, Circuit Judges.

(Filed: June 12, 2013)

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OPINION OF THE COURT

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VAN ANTWERPEN, Circuit Judge.

Appellant Shirley Fichter (―Fichter‖) filed suit against defendant AMG Resources

Corporation (―AMG‖) claiming unlawful termination and gender discrimination due to a

hostile work environment in violation of Title VII of the Civil Rights Act of 1964 (―Title

VII‖), 42 U.S.C. § 2000e et seq. and the Pennsylvania Human Relations Act (―PHRA‖),

43 Pa. Cons. Stat. Ann. § 951 et seq. The District Court granted AMG‘s motion for

summary judgment on both counts and Fichter appealed. For the reasons that follow, we

will affirm the District Court‘s grant of AMG‘s motion for summary judgment.

I.

Because we write solely for the parties, we briefly review only the essential facts.

Defendant AMG markets and processes scrap metal. Fichter was responsible for AMG‘s

scrap accounts payable, but previously worked in accounts receivable. In June 2008, over

Fichter‘s objections, Gregory Cercone (―Cercone‖) was hired to assist Fichter, and she

directed his daily operations. Fichter took nonwork medical leave from March 25, 2009

through May 31, 2009, and Cercone assumed her duties. During her leave, AMG‘s Chief

Financial Officer and Fichter‘s supervisor, Brian Cohen (―Cohen‖), advised Fichter that

she would be reassigned to assist John Burstein (―Burstein‖) when she returned. Burstein

was a scrap metal broker, and she was to assist him in accounts payable and receivable.

Cohen advised Fichter that Cercone would take her position.

Fichter objected, requesting to remain in her position; however, she was the most

qualified employee to assist Burstein and was ultimately reassigned. Her compensation

and benefits remained unchanged. Fichter was responsible for collecting on unpaid

accounts and other duties. Fichter testified that she believed Burstein‘s open accounts

totaled a minimum of $500,000 and that her position was very important to AMG.

Burstein‘s approval was required for sending invoices and purchase orders, and he

typically approved between twenty-five and fifty percent of her invoices.

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Fichter testified that during the three months she worked for Burstein, her duties

required her to work only one hour per week. Some of AMG‘s administrative clerks

(including Cercone), on the other hand, were required to work occasional overtime.

Despite this, Cohen refused to permit her to assist her coworkers.

On August 31, 2009, Fichter told Ronald R. Zorn (―Zorn‖), a senior management

team member, that she was dissatisfied with her new position. She said she would look

for new employment and asked him to be a reference. Zorn agreed. Alternatively, she

asked whether she could work from home or be laid off. Zorn advised her that AMG‘s

policy was not to lay off employees during the economic downturn.

On September 8, 2009, Cohen called a meeting with Fichter, indicating he had

spoken with Zorn. He presented Fichter with a severance agreement. He never fired

Fichter and she never clarified with him that she had been fired. Instead, she testified she

believed the severance agreement to be an involuntary termination. She refused to sign it

and came to work the following day. Fichter did, however, tell Cohen she wanted

September 17, 2009 to be her last day in the office and September 30, 2009 to be her last

day with AMG (using vacation time in the interim). Cohen agreed.

Fichter filed this lawsuit on March 23, 2010. The District Court granted AMG‘s

motion for summary judgment on Fichter‘s gender discrimination and hostile work

environment claims under Title VII and the PHRA, and Fichter filed this appeal.

II.

The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367, and we

exercise jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over an appeal

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from a district court‘s grant of summary judgment. Jacobs Constructors, Inc. v. NPS

Energy Servs., Inc., 264 F.3d 365, 369 (3d Cir. 2001). Summary judgment shall be

granted if ―there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.‖ FED. R. CIV. P. 56(a). ―In making this determination, we

must consider the evidence in the record in the light most favorable to the nonmoving

party.‖ Jacobs Constructors, Inc., 264 F.3d at 369 (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)).

III.

Fichter argues that the district court erred in granting AMG‘s motion for summary

judgment. For the reasons stated below, we find that Fichter‘s claims for unlawful

termination and gender discrimination due to hostile work environment are meritless and

affirm the District Court‘s grant of AMG‘s motion for summary judgment.

A. Employment Discrimination Claim

Fichter asserts parallel Title VII and PHRA claims of gender discrimination,

which are analyzed using the same framework. E.g., Connors v. Chrysler Fin. Corp., 160

F.3d 971, 972 (3d Cir. 1998). Title VII provides:

It shall be unlawful employment practice for an employer--

(1) 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) (2012).1

1

The PHRA provides, in pertinent part:

It shall be an unlawful discriminatory practice . . .

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Where no direct evidence of discrimination exists, we apply the burden-shifting

analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Initially, the plaintiff must establish a prima facie case of unlawful discrimination.2 Then

the burden of production shifts to the employer to ―articulate some legitimate,

nondiscriminatory reason for the employee‘s rejection.‖ McDonnell Douglas, 411 U.S. at

802. This ―relatively light‖ burden is met by ―introducing evidence which, taken as true,

would permit the conclusion that there was a nondiscriminatory reason for the

unfavorable employment decision.‖ Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).

The burden of production then shifts to the plaintiff, who must show ―by a preponderance

of the evidence that the employer‘s explanation is pretextual.‖ Id.

To defeat summary judgment ―the plaintiff must point to some evidence, direct or

circumstantial, from which a factfinder could reasonably either (1) disbelieve the

employer‘s articulated legitimate reasons; or (2) believe that an invidious discriminatory

reason was more likely than not a motivating or determinative cause of the employer‘s

action.‖ Id. at 764. To establish the quantum of ―some‖ evidence, ―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 non-discriminatory reasons was

(a) [f]or any employer because of the . . . sex . . . of any individual . . . to

refuse to hire or employ or contract with, or to bar or to discharge from

employment such individual . . . or to otherwise discriminate against such

individual . . . with respect to compensation, hire, tenure, terms, conditions

or privileges of employment or contract, if the individual . . . is the best

able and most competent to perform the services required.

43 Pa. Cons. Stat. Ann. § 955.

2

The District Court assumed, arguendo, that Fichter established a prima facie case.

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either a post hoc fabrication or otherwise did not actually motivate the employment

action.‖ Id. (citation omitted).

To show pretext, the plaintiff must ―present evidence contradicting the core facts

put forward by the employer as the legitimate reason for its decision.‖ Kautz v. Met-Pro

Corp., 412 F.3d 463, 467 (3d Cir. 2005). The central factual issue is ―whether

discriminatory animus motivated the employer‖; therefore, ―the plaintiff cannot simply

show that the employer‘s decision was wrong or mistaken . . . [or was not] wise, shrewd,

prudent, or competent.‖ Fuentes, 32 F.3d at 765. Instead, the plaintiff must show ―such

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

employer‘s proffered legitimate reasons for its action that a reasonable factfinder could

rationally find them unworthy of credence . . . and hence infer that the employer did not

act for [the asserted] non-discriminatory reasons.‖ Id. (omission in original) (citation and

internal quotation marks omitted).

Fichter fails to show that AMG‘s reasons for its employment decisions were

pretextual. She argues that while no one employment action shows discrimination, the

totality of the circumstances demonstrates that ―Cohen systematically marginalized [her]

and pushed her out.‖ (Appellant‘s Br. at 12.) In so arguing, Fichter does not rebut AMG‘s

proffered legitimate nondiscriminatory reasons; rather, she advances an alternative theory

of AMG‘s actions. The Third Circuit expressly rejected this approach in Kautz. 412 F.3d

at 469 n.2.3 We maintain the Third Circuit‘s traditional analytic approach of carefully

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In Kautz, the plaintiff claimed pretext, arguing that his employer ―decided to make him

transfer to the other side of the country for the sole reason of getting him to quit.‖ 412

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considering each of the employer‘s proffered reasons and the plaintiff‘s respective claims

of pretext. E.g., id. at 466-67.

1. Fichter’s Reassignment to Burstein

AMG first argues that it reassigned Fichter to assist Burstein because she was the

best-qualified candidate. Fichter does not dispute this. Nor does she dispute the position‘s

importance to AMG. Rather, Fichter argues that AMG‘s reason for reassigning her is

pretextual because the position was a ―waste of time‖ because previous assistants failed

to make the position effective and ―Mr. Burstein wasn‘t going to change.‖ (Appendix

(―App.‖) at 165.) But the disputed factual issue is ―whether discriminatory animus

motivated the employer‖; Fichter cannot survive summary judgment by simply claiming

that Cohen‘s ―decision was wrong or mistaken . . . [or was not] wise, shrewd, prudent, or

competent.‖ Fuentes, 32 F.3d at 765.4

2. Fichter’s Lack of Work

F.3d at 469 n.2. In response, the Court clarified the proper analysis: ―In considering

plaintiff‘s rebuttal after the employer has come forward with nondiscriminatory reasons,

we are obliged to consider whether the employer‘s proffered reasons are pretextual and

not alternative theories advanced by the plaintiff.‖ Id. (emphasis added). Fichter

advances a nearly identical argument to the plaintiff in Kautz—that Cohen‘s employment

decisions were pretext for a scheme to marginalize her and replace her with a male

employee. This ―alternative theory‖ is not responsive to AMG‘s proffered legitimate

nondiscriminatory reasons for Cohen‘s employment decisions.

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Fichter also attempts to locate inconsistency and contradiction in the fact that Cohen

and Burstein disagree over which of them first broached Fichter‘s reassignment. This

conflict is immaterial. Fichter must present evidence that contradicts the ―core facts‖ of

AMG‘s proffered reason. Kautz, 412 F.3d at 467. AMG‘s core reasons for Fichter‘s

reassignment are that the position was important and she was most qualified for it.

Neither reason is contradicted by a conflict over whether Cohen or Burstein had the idea

first.

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AMG next explains that Cohen did not permit Fichter to take on extra work from

other employees because (i) she needed to focus on her own work; (ii) she had difficulties

with Cercone‘s software and he was better at the task; (iii) Cercone requested Fichter not

interfere with his work; and (iv) other employees refused her help.

Fichter attempts to find implausibility in AMG‘s first reason because it is

―incredulous‖ that management could remain unaware for three months that she was only

working one hour per week. (Appellant‘s Br. at 13.) She notes that she did not have an

office and ―was apparently performing her work, or lack thereof, out in the open.‖ Id.

Fichter did not, however, inform management of her idleness. Moreover, this evidence

does not implicate the relevant disputed factual issue—discriminatory animus. Fuentes,

32 F.3d at 765.

Fichter tries to undermine AMG‘s second reason by noting that she worked in her

former position ―without issue‖ throughout 2008, the year in which AMG began using

the new software. (Appellant‘s Br. at 14.) The managerial function of allocating

resources is a common business decision, and Fichter provides no evidence from which

to conclude that Cohen was motivated by discriminatory animus. See, e.g., Kautz, 412

F.3d at 467. Finally, Fichter‘s co-workers themselves rejected her offers to help,

undermining Fichter‘s claim that Cohen orchestrated her marginalization.

3. Cercone’s Hiring & Placement in Fichter’s Former Position

Finally, AMG argues that it (i) hired Cercone to assist Fichter because she needed

help with the workload; (ii) retained him in her position while she was on medical leave

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because he was the ―logical choice‖; and (iii) retained him in her position when she was

reassigned because he was better suited.

Fichter first claims ―inconsistency‖ because she told Cohen she did not want or

need help. As noted earlier, however, whether an employer‘s action is ―wise, shrewd,

prudent, or competent‖ is immaterial. Fuentes, 32 F.3d at 765. Fichter must show that

discriminatory animus motivated the employer; she ―must show, not merely that

[AMG‘s] proffered reason was wrong, but that it was so plainly wrong that it cannot have

been the employer‘s real reason.‖ Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101,

1109 (3d Cir. 1997).

Fichter fails to meet her burden. She agreed that Cohen, as her boss, was acting

within the scope of his managerial duties. Moreover, Fichter testified that before Cercone

was hired, she had ―twice as much work‖ because her previous assistant had been

reassigned. Indeed, Fichter assisted Cohen in interviewing candidates and ultimately

selecting Cercone. Furthermore, the decision to assign some of Fichter‘s duties to

Cercone is consistent with the fact that Fichter‘s workload had doubled, Cercone was

hired to assist Fichter, and that Cohen expected Fichter and Cercone to share the work.

Fichter similarly has not sufficiently impugned AMG‘s remaining justifications.

Fichter must contradict AMG‘s ―core facts‖ for its decision. Kautz, 412 F.3d at 467.

Fichter does not dispute that Cercone was the logical choice to replace her while she was

on medical leave and when she was reassigned. She affirms AMG‘s belief that she was

the most qualified candidate to work with Burstein.

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In conclusion, Fichter fails to present ―some evidence . . . from which a factfinder

could reasonably either (1) disbelieve the employer‘s articulated legitimate reasons; or

(2) believe that an invidious discriminatory reason was more likely than not a motivating

or determinative cause of the employer‘s action.‖ Fuentes, 32 F.3d at 764. The District

Court properly granted AMG‘s motion for summary judgment on Fichter‘s employment

discrimination claim.

B. Hostile Work Environment Claim

Fichter also claims discrimination under Title VII and PHRA based on hostile

work environment. To prove her prima facie case, Fichter must establish that ―(1) [she]

suffered intentional discrimination because of [her] sex; (2) the discrimination was severe

or pervasive; (3) the discrimination detrimentally affected [her]; (4) the discrimination

would detrimentally affect a reasonable person in like circumstances; and (5) the

existence of respondeat superior liability.‖ Mandel v. M&Q Packaging Corp., 706 F.3d

157, 167 (3d Cir. 2013). The hostility of a work environment must be determined by the

totality of the circumstances. Harris v. Forklift Sys., 510 U.S. 17, 23 (1993). Such

circumstances may include ―the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee‘s work performance.‖ Id.

To survive summary judgment, Fichter must present ―sufficient evidence to give

rise to an inference of discrimination by offering proof that her ‗workplace [was]

permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently

severe or pervasive to alter the conditions of [her] employment and create an abusive

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working environment,‘ . . . and the conduct [was] based on [her gender].‖ Abramson v.

William Paterson Coll. of N.J., 260 F.3d 265, 278–79 (3d Cir. 2001) (quoting Harris, 510

U.S. at 21).

1. Fichter’s Claimed Discrimination Is Not Severe or Pervasive

Fichter cited multiple factors as evidence that Cohen created a hostile work

environment, including: (1) telling her she should get a job closer to home, (2) telling her

she was disrespectful if she disagreed with him, (3) telling her to turn more work over to

Cercone, (4) wanting her work done more quickly so that Cohen‘s work was not held up,

(5) asking Cercone, but not Fichter, to do work for him even though Cercone worked for

Fichter, (6) reassigning a female employee who previously worked with her to another

position and leaving her with twice the workload, (7) not giving her a raise in four to five

years, (8) requiring that she advise him if she would be arriving late or leaving early, (9)

asking her for information but leaving the office without telling her before she could

provide it to him, (10) keeping track of her vacation time, (11) providing her with little

notice when auditors were coming, (12) asking for her opinion, but doing what he wanted

if he did not like her answer, (13) not compensating her when she filled in for Roy Rowe,

and (14) not respecting the extra work she performed ―unless it benefitted Brian Cohen.‖5

(App. at 80–81.)

5

We note the District Court did not discuss additional arguments made in Appellant‘s

Opposition to Motion to Summary Judgment, to wit: (1) hiring a male employee

(Cercone) over her objections that she did not need help; (2) reassigning Fichter during

her medical leave to a ―deadend position with minimal duties,‖ meanwhile promoting

Cercone to her previous position; (3) reassigning her to a position that required only one

hour of work per week and refusing to permit her to help other employees with ―abundant

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As the District Court correctly concluded, many of these claimed hostile actions

are well within the scope of common managerial functions. Fichter‘s preferences that

Cohen advise her when auditors arrived, remain in the office when she was to report to

him, and respect her extra work are not Title VII violations. Title VII does not ―guarantee

a utopian workplace.‖ Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 600 (6th

Cir. 2007) (quoting Vore v. Ind. Bell Tel. Co., 32 F.3d 1161, 1162 (7th Cir. 1994)).

When arguing that Cohen was more likely to take male advice, Fichter compares

herself to males in higher positions who were not similarly situated. With respect to

Cercone, she offers only conclusory allegations, which cannot survive summary

judgment. E.g., Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005). Finally,

―offhand comments, and [non-serious] isolated incidents‖ are not actionable under Title

VII. Abramson, 260 F.3d at 280 (quoting Faragher v. Boca Raton, 524 U.S. 775, 788

work‖; and (4) offering her a severance package after she expressed her dissatisfaction

with her new position to Zorn. (Appellant‘s Opposition to Motion for Summary

Judgment). ―The court need not discuss every argument made by a litigant if an argument

is clearly without merit.‖ United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006),

abrogated on other grounds by Kimbrough v. United States, 552 U.S. 85 (2007).

Moreover, Appellant did not challenge on appeal the District Court‘s failure to discuss

these additional facts, and has thus waived her claim. E.g., Society Hill Towers Owners’

Assoc. v. Rendell, 210 F.3d 168, 185–86 (3d Cir. 2000). Finally, to the extent that the

District Court erred by not discussing the additional reasons under the totality of the

circumstances, we find the court‘s error harmless. Even including these reasons, and for

the reasons discussed herein, Fichter fails to survive summary judgment.

Similarly, on appeal, Fichter adds new facts to her hostile work environment

claim: (1) Fichter objected to the reassignment to Burstein ―such that Cohen would have

known that it was an undesirable position‖; and (2) Cohen refused to permit her to assist

Cercone while she was idle and Cercone was busy despite having performed his position

successfully. (Appellant‘s Br. at 16.) These facts are reflected in the record and fall

within our de novo review; however, for reasons discussed in our opinion, Fichter‘s claim

still fails to survive summary judgment.

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(1998)). Similarly, Cohen‘s comments that Fichter was being disrespectful and should

look for work closer to home are not Title VII violations.

The District Court correctly concluded that Fichter failed to show sufficient

evidence from which a reasonable trier of fact could conclude she suffered ―severe or

pervasive discrimination due to her gender to the extent that it would alter the conditions

of her employment.‖ (App. at 19.)

2. The District Court Considered the Totality of the Circumstances

On appeal, Fichter argues the District Court failed to consider her claims under the

required ―totality of the circumstances‖ approach, instead considering each claim in

isolation. The totality of the circumstances test requires courts to ―evaluate the sum total

of abuse over time‖ and prevents them from ―consider[ing] each incident in a vacuum.‖

Durham Life Ins. Co. v. Evans, 166 F.3d 139, 149, 155 (3d Cir. 1999).

We find that the District Court did consider the totality of the circumstances as

required by the hostile work environment analysis. See (App. at 19 (―After careful

consideration of AMG‘s Motion, the filings in support and opposition thereto, the

memoranda of the parties, the relevant case law, and the record as a whole, the Court

finds that there is not sufficient record evidence upon which a reasonable jury could

return a verdict for Fichter on her claims of hostile work environment . . . .‖ (emphasis

added)).) Nothing in the District Court‘s opinion suggests it did otherwise, and Fichter

offers no support for her conclusory claim.

Rather, she claims that if the District Court had considered the totality of the

circumstances, it would have seen that Cohen systematically pushed her out of her job

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into an unproductive and humiliating position, and presented her with a severance

agreement when she complained. The totality of the circumstances analysis does not

require the District Court to cobble together unsubstantiated theories from otherwise

innocuous facts. See Podobnik, 409 F.3d at 594 (explaining that to survive summary

judgment a party must show more than just ―bare assertions, conclusory allegations or

suspicions‖ to show the existence of a genuine issue of material fact). The District

Court‘s role—and ours—is to determine whether the record, considered as a whole,

contains ―sufficient evidence to give rise to an inference of discrimination by offering

proof‖ that Fichter was subject to a hostile work environment because of her gender.

Abramson, 260 F.3d at 278–79. Fichter asks us to make an ―inference of discrimination‖

but fails to ―offer proof‖ supporting such an inference.

IV.

For the foregoing reasons, we will affirm the District Court‘s grant of AMG‘s

motion for summary judgment.

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