Petition for Writ of Certiorari — Rahman v. Citterio U. S. A. Corp.

{ Supreme @eurt, U.S.

\ FILED

03 455 SEP 22 2003.

Grade OE 8 CLERK |

SUPREME COURT OF THE UNITED STATES

FARIDA RAHMAN,

Petitioner

CITTERIO USA CORPORATION,

Respondent

A Petition for Writ of Certiorari to the

United States Court of Appeals

Third Circuit

Petition for Writ of Certiorari

Paul A. Barrett

Counsel of Record for

Petitioner

Of O’Malley, Harris,

Durkin & Perry, P.C.

345 Wyoming Avenue

Scranton, PA 18503

(570) 348-3711

a nits EPS ee ttre alibi, Sci et ak NAAN SE ELLIE 28+ LUTE RE LES

QUESTIONS PRESENTED FOR REVIEW

1. Are consideration and analysis of the

factors upon which the appropriateness of the entry

of judgment as a matter of law in any particular

employment discrimination case is said by this

Court’s Jecision in Reeves, infra, to be dependent

mandatory, such that the failure by a court so to

consider and analyze them is reversible error?

2. Where in a Memorandum accompanying

an order a district court expressly characterizes an

admittedly uncertain statement by a witness as

confirmed by assertions appearing in the brief of

the party favored by that testimony -- here, his

employer-- and where there are other such

departures from the accepted and usual course of

judicial proceedings, does not its affirmance below

constitute such a sanctioning of same as to call for

the exercise of this Court’s supervisory power?

LIST OF ALL PARTIES

The names of all parties appear in the

caption of the case on the cover page.

TABLE OF CONTENTS

bogi 8 G0, 1

I eT Te ee ee ee 2

STATUTORY PROVISIONS INVOLVED .... 3

STATEMENT OF THE CASE .............. 4

REASONS FOR GRANTING THE WRIT ..... 7

8 | 19

INDEX TO APPENDICES

APPENDIX A Opinion and Judgment of the

U.S. Court of Appeals

APPENDIX B Opinion of the U-S. District

Court for the M*?dle District of

Pennsylvania

APPENDIX C Copy of Pro Se Letter Motion of

February 8, 2003 by Petitioner

to Extend The Time for Filing a

Motion for Rehearing.

APPENDIX D Copy of Letter Motion of

February 16, 2003 Renewing

said Motion.

APPENDIX E Copy of Order of U.S. Court of

Appeals Order of February 20,

2003 Granting Letter Motion

Extending the Time for the

Filing of a Petition for

Rehearing.

APPENDIX F Copy of U.S. Court of Appeals

Order Denying Petitioner’s Pro

Se Petition for En Banc

Rehearing.

APPENDIX G Text of Statutory Provisions

Involved.

ili.

TABLE OF AUTHORITIES CITED

CASES | PAGE

Abramson v. William Paterson College of New Jersey,

, ee & St Ce eh er rere 7

St Mary’s Honor Center v. Hicks, 509 U.S. 02, 511, 113

S.Ct. 2742, 125 L.Ed. 2d 407 (1993) ............. 7

Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir., 1994), L.

Sc ckdn eo ee ee eee eek oe eee eke ee 7,9

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-

805, 93 S.C. 1817, 36 L.Ed. 2d 668 (1973) ........ 8

Reeves _v. Sanderson Plumbing Products, Inc.,

530 U.S .133, 120 S. Ct. 2097, 147 L .Ed. 2d

DE, Cc cuban deus a eeu hewk eee eee 14, 15

Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 101 S.Ct. 1089, 67 L. Ed 2d.207 (1981). 9

Thornton v. United States, 493 F. 2d 164

Se, SE 6 6s oo bas bd an scene eeaawes eee 11

Trap Rock Industries v. Local 825, 982 F.2d 884 (3d Cir.

ee Cre ere ee Or rere ie rere il

STATUTES AND RULES

Section 703(a) (1) of Title VII of the Civil Rights Act of

1964, as amended, 78 Stat, 253m 42 Y//s, Ct, §2000e-

I oe Paw ecgt en ae e Sanaa wa eae eae 3

iV.

OPINIONS BELOW

The opinion of the United States Court of

Appeals appears at Appendix A to the petition and

is unpublished.

The opinion of the United States District

Court appears at Appendix B to the petition and is

unpublished in the official reporter but has been

reported at 57 Fed. Appx. 516 and was published at

2003 WL 193696 (3" Cir., Pa)

JURISDICTION

The United States Court of Appeals decided this

case was January 29, 2003.

A timely petition for rehearing was denied by the

United States Court of Appeals on June 24, 2003

and a copy of the order denying said petition

appears at Appendix F.

The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

This petition involves section 703(a)(1) of

Title VII of the Civil Rights Act of 1964, as

amended, 78 Stat. 253, 42 U.S.C. §2000e-2(a)(1),

the provisions of which, being lengthy, are set out

in Appendix G.

STATEMENT OF THE CASE

Petitioner, an American citizen and Asian-

Muslim female, seeks review of a U.S. Court of

Appeals for the Third Circuit judgment which

affirmed the U.S. District Court for the Middle

District of Pennsylvania order which granted

summary judgment in favor of the respondent ,

defendant below, in an action involving claims that

it, a meat processing firm, discriminated against

petitioner by refusing to hire her because of her

race, national origin, religion and gender.

In March, 1994, respondent hired her and

two non-Asian-Muslim males as temporary

production workers. Temporary employees would

become permanent union-eligible employees after

sixty working days. The two males temporarily

hired when she was would become permanent hires

after the expiration of the 60 work days, but she

was laid off on May 20, 1994, purportedly because

of a slackening of seasonal demand for respondent’s

meats. Respondent’s daily production records set

forth the names of each employee, the number of

hours worked that day, the job description, the

amount of that day’s time devoted to packaging,

slicing, shipping, movement, ham room work and

cleaning, and a last column captioned “Problems.”

These records show no problems with petitioner’s

work and there are several entries crediting her

with having done good work. There are entries

therein of specified problems with certain other

workers, such as their arriving late or being absent

without excuse and other negative entries. One of

the workers, a non-Asian Muslim male, was

permanently hired notwithstanding his

absenteeism; another, also a non-Asian Muslim

male was permanently hired notwithstanding his

production supervisor having been told by the

sanitation supervisor that he was not to send that

employee back to him.

4.

Petitioner thereafter called and stopped by

the plant to say she was interested in returning to

work and was told that she need not submit an

application and that respondent was not hiring.

She was on October 5, 1994, rehired temporarily as

a production worker but on December 21, 1994 was

again laid off, for the same purported reason. It

was during this second period of employment that

she noted that there had been, since her first stint,

some rehiring and she would later testify that she

never saw at respondent’s plant any non-Caucasian

employees. She testified, too, that there had not

been any complaints made to her about her work

while she was there. Neither of her two stays as

respondent’s temporary employee consisted of sixty

work days.

Petitioner from December 21, 1994 through

1999 called, wrote and physically appeared at

respondent’s plant, asking to be rehired, stating

that she had worked well while with respondent,

and asking her former production department

supervisor why it was that she was not being hired.

Again, she was told that respondent was not hiring.

In a letter he sent to her he reaffirmed that

production help was not needed and said that, while

her productica work had been “ok”, their present

need was for sanitation work and that the

supervisors of a company respondent engaged to do

sanitation work had voiced dissatisfaction with her

work for them. She learned that respondent had

been hiring while stating that they were not and

before initiating this action she filed on May 24,

1999, with the Pennsylvania Human Relations

Commission and with the Equal Employment

Opportunities Commission a charge of

discrimination by respondent because of her

national origin, religion and gender.

Petitioner filed with the Circuit Court after

its affirmance of the district court’s order a timely

pro se motion to extend the time for the filing of a

5.

petition for rehearing, explaining that her counsel

had informed her that she no longer represented

her and that she would need other counsel if she

were further to appeal. That motion was granted

and she filed a timely pro se petition for rehearing

before the court en banc, which motion was denied.

This petition followed.

REASONS FOR GRANTING THE WRIT

The court below sanctioned so far a

departure by the district court from the accepted

and usual course of judicial proceedings of the type

here involved as to call for and merit the exercise of

this Court’s supervisory power. We will first set

forth what we submit the accepted and usual course

to be and afterwards show how it was so far

departed from below.

A. ACCEPTED AND USUAL COURSE OF

JUDICIAL PROCEEDINGS. In summary

judgment proceedings in actions against prospective

employers under section 2002e-2 of the Civil Rights

Act compiaining of intentional discrimination

because of race, color, national origin and gender in

their refusal to hire, a plaintiff who has made a

prima facie showing of such discrimination need

only, after her employer proffers legitimate reasons

therefor, point to some evidence, direct or

circumstantial, from which a factfinder can

reasonably disbelieve the defendant’s articulated

reasons. Fuentes v. Perskie, 32 F.3d 759, 764 (3d

Cir., 1994) citing and following this Court’s decision

in St. Mary’s Honor Center v. Hicks, 509 U.S. 502,

511, 113 S.Ct. 2742, 2749, 125 L.Ed. 2d 407 (1993).

Accord: Abramson v. William Paterson College of

New Jersey, 260 F.3d 265, 283 (3d Cir., 2001).

While Hicks was not a summary judgment case,

Justice Thomas’s opinion therein, quoting in part

from the circuit opinion therein “970 F.2d 487, at

493" it states, at the page just referenced:

“The factfinder’s disbelief of the

reasons put forward by the defendant

(particularly if disbelief is

accompanied by a _ suspicion of

mendacity)

7

may, together with the elements of the

prima facie case, suffice to show

intentional discrimination. Thus,

rejection of the defendant’s proffered

reasons will permit the trier of fact to

infer the ultimate fact of intentional

discrimination and the Court of

Appeals was correct when it noted

that, upon such rejection, ‘[nJo

additional proof of discrimination is

required,’ . . .” [Emphasis added in

original]

In Fuentes, as the Third Circuit Court of Appeals

noted, 32 F. 3d at 764:

“[Blecause the factfinder may infer

from the combination of the plaintiffs

prima facie case and its own rejection

of the employer’s proffered non-

discriminatory reasons that the

employer unlawfully discriminated

against the plaintiff and was merely

trying to conceal its illegal act with the

articulated reasons (citing Hicks), a

plaintiff who has made out a prima

facie case may defeat a motion for

summary judgment by either (I)

discrediting the proffered reasons,

either circumstantially or directly, or

(ii) adducing evidence, whether

circumstantial or direct, that

discrimination was more likely than

not a motivating or determinative

cause of the adverse employment

action. Thus, if the plaintiff has

pointed to evidence sufficiently to

discredit the defendant’s proffered

reasons, to survive summary judgment

the plaintiff need not also come

8.

forward with additional evidence of

discrimination beyond his or her prima

facie case... .”

Fuentes cited and properly relied upon this Court’s

decision in Texas Department of Community Affairs

v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 1095,

67 L.Ed. 2d 207 (1981) wherein it is stated that a

former female employee complaining of her

employer’s discrimination successfully carries the

burden of demonstrating that the proferred reason

was not the true reason for the em ioyment decision

“by persuading the court that a discriminatory

reason more likely motif- ate theemployer or

indirectly by showing that the employer’s proffered

explanation is unworthy of credence, ” [citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792,

804-805, 93 S.Ct. 1817, 1825-1826, 36 L.Ed. 2d 668

(1973)] [Emphasis added.]

Fuentes, in determining the quantum of

evidence required, rejected out of hand what it said

were the two extremes, namely, that plaintiff can

avoid summary judgment simply by arguing that the

factfinder need not believe the defendant’s

articulated explanations, on the one hand, or that

the plaintiff must adduce evidence directly

contradicting the defendant’s proffered legitimate

explanations, on the other. 32 F. 3d at 758. It ruled

that to avoid summary judgment the plaintiffs

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 either a

post hoc fabrication or otherwise did not actually

motivate the employment action, i.e., was a pretext.

It held: (32 F. 3d, at 759)

ros

[TJhe non-moving plaintiff must

demonstrate 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,’

[citing authority] and hence infer ‘that the

employer did not act for [the asserted] non-

discriminatory reasons.” [Citing authority]

[Emphasis in original]

It is against the preceding backdrop that this Court

should determine whether, as we submit, the court

below sanctioned so far a departure from the course

of proceedings as to call for the exercise of its

supervisory power.

B. UNACCEPTABLE AND UNUSUAL

COURSE OF PROCEEDINGS BELOW. The

district court’s tendency to resolve doubt about

material facts in favor of respondent, the moving

party, is seen by the manner in which it addressed

petitioner’s challenge to respondent’s claim that it

did not permanently hire -petitioner because of

allegedly poor evaluations of her performance in

sanitation work. Petitioner had pointed to evidence

that respondent permanently hired a non-Asian-

Muslim male, notwithstanding his allegedly poor

performance in sanitation. The district court

regarded this disparate treatment as “not helpful to

plaintiffs case as defendant points out in its reply

brief, Mr. Bobeck, as a member of the union, is

subject to different standards than a temporary

employee attempting to become a permanent

employee.” In an accompanying footnote, the

district court added:

“We note that in his deposition

testimony, Mr. Maloney testified that

he was uncertain about Mr Bobeck’s

union status at the time he received

complaints concerning Bobeck’s

sanitation work. (See Doc. 24, Ex. A

at 16. ‘I don’t remember the exact time,

but he may have already been in the

union, he may have already had his 60

days in.’) However, the nature of Mr.

Bobeck’s union status was “ confirmed

in defendant’s reply brief. (Doc. 25 at

13).”. [Appendix B]

It is, indeed, a marked departure from the accepted

and usual course of judicial proceedings to accept as

confirmation of a witness’ doubtful testimony about

the possible status of an employee as a union

member mere assertions appearing in a party brief,

let alone a reply brief to which there can be no

answer. “A statement in a brief or in oral

argument does not constitute evidence, for purposes

of summary judgment.” Trap Rock Industries v.

Local 825, 982 F.2d 884, 892 (3d Cir. 1992), citing,

quoting and following Thornton v. United States,

493 F.2d 164, 167 (3d.Cir. 1974). Moreover, the |

district court cited no authority, nor do we know of

any, that recognizes the claimed right of an

employer to discriminate in favor of a male employee

by holding a female non-union member to an

altogether different standard.

Petitioner, who could withstand summary

judgment by demonstrating such weaknesses,

implausibilities, inconsistencies “or contradictions”

in the defendant’s reasons for not keeping her on as

a permanent employee as to make it possible for a

reasonable factfinder rationally to find them

unworthy of credence, pointed to a pre-litigation

Sa.

letter from her supervisor while with respondent

that stated that her work was “ok” and to the

author’s deposition testimony that characterized it

as below average. The district court, instead of

determining whether this constituted such a

weakness, inconsistency or contradiction, said:

“We find that the letter in question

does not offer a clear evaluation of

plaintiffs performance as a production

worker. The fact that defendant’s

letter describes plaintiffs work as “ok”

does not mandate the cenclusion that

the defendant was completely satisfied

with plaintiffs production work.

Moreover, the letter points out

plaintiffs deficiencies as a sanitation

worker and therefore supports

defendant’s articulated reason for not

rehiring plaintiff as a _ sanitation

worker.” [Emphasis in original]

[Appendix B}-

The question which confronted the district court was

not whether the letter mandated the conclusion that

respondent was completely satisfied with petitioner’s

. work, something petitioner was not obligated to

show. The question was whether the supervisor’s

prelitigation letter and his postlitigation deposition

testimony constituted such an inconsistency or

contradiction as might prompt a reasonable

factfinder rationally to find the testimony unworthy

of credence or to infer that the employer did not act

for the asserted non-discriminatory reasons. The

Circuit Court, sanctioning this departure from the

accepted and usual course of judicial proceedings,

held that “the ‘mandates’ statement addressed

petitioner’s contention that the supervisor’s

testimony blatantly contradicted his pre-litigation

letter, that the district court’s response that the

12.

letter saying her work was ‘ok’ did not blatantly

contradict that later testimony, that it wasa proper

response and did not reveal an incorrect reading of

the evidence.” [Appendix A] Although we submit

that his pre-and post-litigation stances were indeed

contradictory, such “weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in

the employer’s proffered legitimate reasons for its

action” that might prompt a reasonable factfinder

rationally to find them unworthy of credence suffice

to withstand summary judgment and were

demonstrated.

Petitioner pointed to contradictions in the

testimony of her supervisor while with respondent

regarding whether the performance of a male

employee, who was later permanently hired, was

above or below average during his 60-day

temporary hire. He was asked how Fred Bezick’s

performance during his initial hire was. He stated,

“Above average.” He testified that “the problem

with Fred is his absenteeism.” He added that, in

determining whether an employee’s performance is

above or below average his actual job performance is

combined with his absenteeism. He was then asked

whether he considered Fred an above average

employee during his first time as an employee and

he answered “No.” The district court, though

charged to read the evidence in the light most

favorable to the non-movant for summary judgment,

said it did “not find this testimony to be clearly

contradictory or helpful to plaintiffs pretext

argument. We submit that it was both, and note that

respondent’s witnesses, two of its employees and

hardly disinterested, had testified that petitioner

sought as permanent employees only “above

average” workers. If, as the supervisor testified,

respondent permanently hired a male whom his

supervisor deemed to be not above average, that

certainly calls into question whether respondent

13.

was guided by the “above average” standard which

its own witnesses conceded to be subjective -- only

when evaluating non-Asian-Muslim females. The

Circuit Court did not address this contradiction or

inconsistency or the district court’s refusal to

recognize it as such.

The Memorandum of the District Court states

that the evidence indicates that petitioner’s below

average performance during her second period of

employment, in conjunction with her poor

performance as a sanitation worker for a company it

retained to do sanitation work, resulted in

petitioner’s not being rehired as a sanitation worker

by respondent. Such evidence as there was to that

general effect was evidence favorable to the moving

party that a factfinder would not be required to

believe, especially under the circumstances here.

This Court in Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147

L.Ed.2d 105 (2000) held that, while in entering a

judgment as a matter of law, a court should consider

all of the evidence in the record, it must draw all

reasonable inferences in favor of the nenmoving

party, it may not make credibility determinations or

weigh the evidence, it must disregard all evidence

favorable to the moving party that the jury is not

required to believe, and should give credence to the

evidence favoring the nonmovant as well as that

evidence supporting the movant that is

uncontradicted a1 ' unimpeached, at least to the

extent that that evidence comes from disinterested

witnesses.” 530 U.S., at 150-151, 120 S.Ct. at 2109-

2110. Here, the evidence favorable to the movant

came from its own employees, not from

disinterested witnesses, was oral, was unsupported

by any documentary evidence and was belied by

movant’s own production records which, as the

courts below noted, referred to petitioner’s

performance on several occasions as “good work.”

Instead of rejecting same,the district court in

14.

finding that “the evidence indicates that

[petitioner’s] below average performance during her

second period of employment . . . resulted in [her]

not being rehired as a sanitation worker by the

[respondent]” weighed the evidence and made

credibility determinations. Moreover, petitioner had

never asked to be hired as a sanitation worker and,

in her two periods of temporary employment, had

not been hired as such, but rather as a production

worker. Respondent’s production records, a part of

the record below, reveal that she, like most

production workers, was very rarely detailed to

sanitation work and, although on those daily records

opposite each worker’s name there appear columns

headed “clean,” referencing sanitation work, and

“problems”, on none of those records on which do

appear problems with other workers is any

dissatisfaction with any of petitioner’s work noted.

The improper determination of the ultimate fact, i.e.,

that plaintiff was not rehired because of her earlier

performance, is as unsupported by evidence that

must be believed as it is improper.

Reeves, supra, after noting that review of Rule

50 [judgment as a matter of law and Rule 56

[summary judgment] motions is governed by the

same standards, stated:

“Whether judgment as a matter of law

is appropriate in any particular case

will depend on a number of factors.

Those include the strength of the

plaintiffs prima facie case, the

probative value of the proof that the

employer’s explanation is false, and

any other evidence that supports the

15.

i

employer’s’ case and that properly may

be considered on a motion for judgment

as a matter of law. . .It suffices to say

that, because a prima facie case and

sufficient evidence to reject the

employer’s explanation may permit a

finding of liability, the Court of appeals

erred in proceeding from the premise

that a plaintiff must always introduce

additional, independent evidence of

discrimination.”

530 U.S., at 148-149, 120 S. Ct. at 2108-2109.

Respondent advanced as a reason why it did

not permanently hire petitioner that, when she, a

production “Class 4" employee, was assigned during

her initial temporary period to only a few hours of _—-

sanitation, Class 5", work, the Class 5 supervisor

asked her Class 4 supervisor not to send her back.

Petitioner’s lower court counsel asked her supervisor

during his deposition whether there were others he

was asked by the Class 5 supervisor not to send

back. He could not remember, but then did identify

one such as the above named Bob Bobeck, whom he

had sent to the sanitation department only to have

its supervisor tell him “He cannot clean, don’t send

him to me anymore.” He was hired; petitioner,

though twice temporarily hired by respondent as a

production, not sanitation, worker, was not. Such

disparate treatment is such an inconsistency, if not

contradiction, as could lead a reasonable factfinder

rationally to find respondent’s articulated reason for

not hiring petitioner unworthy of credence or to infer

that respondent did not act for the asserted non-

1In Reeves, the movant for judgment as a matter of law

under F.R.C.P. 50 was the employer, its motion was denied by

the district court whose ruling thereon was reversed by the Court

of Appeals which entered judgment for the employer.

discriminatory reasons it advanced. That is all a

plaintiff complaining of intentional discrimination

by her employer needs to show to withstand

summary judgment, yet the summary judgment

entered by a United States District Court against

petitioner, a female Asian Muslim, and affirmed

below.

The words Justice O’Connor used in Reeves,

supra, when she discussed the factors that are taken

into account in determining the appropriateness of

the entry of judgment as a matter of law in

employment discrimination cases fairly suggest the

mandatory need that they be considered. She spoke

of how that determination “will depend upon a

number of factors [including] the strength of the

plaintiffs prima facie case, the probative value of

the proof that the employer's explanation is false,

and any other evidence that supports the employer’s

case and that properly may be considered on 2

motion for judgment as a matter of law. The district

court below concluded that petitioner had

established a prima facie case of discrimination, one

of the elements of which is that she was qualified for

the job she sought and was denied, and the circuit

court assumed from respondent's failure to contest

that point on appeal that she had. But neither court

found that her prima facie case was strong or weak.

Although the district court’s memorandum reveals

that its author did not believe the employer’s

explanation to be false, its conclusion that certain of

the alleged contradictions were not ‘helpful to

petitioner’s case is clearly wrong and, in any event,

he did not rule that all of them were lacking in

probative value. As noted, the district court

improperly accepted as true evidence favoring the

summary judgment movant which he was not

required to believe. Farida Rahman’s hopes that

this august Court will grant her petition are

bolstered not only by the merits of her position as

17.

supported by Justice O’Connor’s opinion for the

Majority in Reeves but also by her perception that

hers may be the “appropriate case” envisioned by

Justice Ginsburg in her concurring opinion in

Reeves, when she wrote: [530 U.S., at 1543-155, 120

S.Ct. 2111-2112:

a be i t on the

which plaintiffs will be required to

submit eviden tw

categories . . .[evidence establishing a

prima facie case and evidence from

which a rational factfinder could

conclude that the employer’s proffered

explanation is false] in order to survive

a motion for judgment as a matter of

law. I anticipate that such

circumstances will be uncommon. As

the Court notes, it is a principle of

evidence law that the jury is entitled to

treat a party’s dishonesty about a

material fact as evidence of culpability.

(Citing McDonnell Douglas, supra)

Under this commonsense principle,

evidence suggesting that a defendant

accused of illegal discrimination has

chosen to give a false explanation for

its actions gives rise to a rational

inference that the defendant could be

masking its actual, illegal motivation.

Ibid. Whether the defendant was in

fact motivated by discrimination is of

course for the finder of fact to decide.

(Citing Hicks, supra) But the inference

remains — unless it is conclusively

demonstrated, by evidence that the

district court is required to credit on a

18.

motion for judgment as a matter of

law, ... that discrimination could

not have been the defendant’s true

motivation. If such conclusive

demonstrations are (as I suspect)

atypical, it follows that the ultimate

question of liability ordinarily should

not be taken from the jury once the

plaintiff has introduced the two

categories of evidence described above.

e th urt’ ini eav

room bh er elaboration in

appropriate case, I join it in full.”

[Emphasis added]

CONCLUSION

For the above reasons, this Court is respectfully

asked to issue the requested writ of certiorari and to

review the judgment sought to be appealed.

tfully submitted,

Counsel of Record for

Farida Rahman,

Petitioner

Of O'Malley, Harris,

Durkin & Perry, P.C.

345 Wyoming Avenue

Scranton, PA. 18503

(570)348-3711

-

Dated: September 11, 2003

19.

APPENDIX A

NOT PRECENDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-1894

FARIDA B. RAHMAN,

Appellant

V.

CITTERIO U.S.A. CORPORATION

Appeal from the United States District Court

For the Middle District of Pennsylvania

(D.C. Civil No. 00-cv-01811)

District Court Judge: Honorable Edwin M. Kosik

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 28, 2003

Before: SLOVITER and RENDELL, Circuit Judges,

and DEBEVOISE, District Judge*

(Filed January 29, 2003)

OPINION OF THE COURT

RENDELL, Circuit Judge.

*The Honorable Dickinson R. Debevoise, Senior

Judge, United States District Court for the District of

New Jersey, sitting by designation.

—— I ESI TTT

Farida Rahman appeals the order of the

District Court for the Middle District of Pennsylvania

granting summary judgment for Citterio ISA

Corporation (“Citterio”) on her employment

discrimination claims. Rahman is a Bangladeshi,

Muslim female. She was hired by Citterio to work at

its meat processing plant on a temporary basis from

March 18, 1994 through May 20, 1994, and again from

October 5, 1995 through December 21, 1994. Rahman

worked at Proklean, an independent contractor with

Citterio that provides sanitation services at Citterio’s

plant, from December 1996 through March 3, 1997. In

2000, Rahman commenced and action under Title VII

of the Civil Rights Act of 1964 and 1991, and the

Pennsylvania Human Relations Act, 43 Pa. C.S. § 951

et.seq., claiming Citterio discriminated against her on

the basis of race, national origin, religion, and gender

by not rehiring her between 1994 and 1999. The

District Court granted Citterio’s motion for summary

judgment and we will affirm.

I. Jurisdiction and Standard of Review.

The District Court had jurisdiction over

Rahman’s federal claims under 28 U.S.C. § 1331

(2000) and 28 U.S. C. § 1343 (2000) and supplemental

jurisdiction over her state claims under 28 U.S.C. §

1367(aX2000). We exercise jurisdiction over the

District Court’s final order pursuant to 28 U.S.C. §

U.S.C. § 1291 (2002). We exercise plenary review over

the Court’s grant of summary judgment, applying the

same standard as the District Court. Abramson v.

William Patterson College of N.J._, 260 F.3d 265, 276

(3 Cir. 2001).

II. Discussion

Citterio concedes for this appeal that Rahman

has made out a prima facie case, but contends that she

has not rebutted it proffered reasons for not hiring

her: her poor performance during her two temporary

jobs at the plant and her poor performance at

Proklean. Rahman has offered no direct evidence of

discrimination and relies entirely on circumstantial

evidence. Under the McDonnell-Douglas _burden-

shifting framework, Rahman bears the burden of

rebutting Citterio’s proffered legitimate reasons. To

meet this burden, she must “demonstrate such

weaknesses, implausibilities, inconsistencies, or

contradictions in ([Citterio’s] proffered legitimate

reasons for its action that a reasonable factfinder

could rationally find them ‘unworthy of credence.”

Fuentes v. Perskie, 32 F.3d 759, 765 (3™ Cir. 1994).

Rahman argues that the District Court

incorrectly viewed the evidence in the light most

favorable to Citterio, and that she has shown enough

inconsistencies in Citterio’s position to allow a jury to

find intentional discrimination. We disagree.

First, the District Court carefully evaluated

each piece of evidence Rahman offered and found it

wholly lacking. Rahman latches onto language in the

Court’s opinion stating that the fact that a letter from

Rahman’s manager describing her “work as ‘ok’ does

not mandate the conclusion that ([Citterio] was

completely satisfied with [Rahman’s] work,” A17

(emphasis added), to argue that the Court was viewing

the evidence in a light favorable to Citterio. Rahman

cites to Abramson, 260 F.3d at 277, in which we

reversed summary judgment because the district court

had incorrectly framed its analysis in terms of

whether “a reasonable person would ‘necessarily

construe’ the conduct in question as being improperly

motivated.” However, a complete reading of the

context of the District Court’s statement reveals that

the Court was not improperly framing the issue. The

“mandates” statement was made in response to

Rahman’s assertion that the letter from her manager

revealed a “blatant contradiction” between his pre-

and post-litigation positions. The Court’s response

was that the letter saying her work was “ok” does not

blatantly contradict his later testimony that her work

was “below average”. This was a proper response anc

does not reveal an incorrect reading of the evidence.

Second, having independently reviewed the

record and taking the evidence in the light most

favorable to Rahman, we agree with the District Court

that she has not shown such inconsistencies that a

reasonable factfinder could find in Citterio’s reasons

“unworthy of credence”. Correspondence between her

and her manager at Citterio prior to the initiation of

her suit, A136, and her manager’s testimony, A119,

show that the manager did not think she performed

well enough in her sanitation jobs at the plant and

with Proklean, and that she had to be reshown how to

do jobs. Al22. Although it is true that other people

who were non-Muslim were retained or hired during

the time period that Rahman sought a job, those

employees performed better overall than Rahman or

were union members. Rahman relies on her own

belief that she was a good worker, and comments from

Citterio that she was “average” during her first

temporary job, but that is not enough to rebut

evidence that Citterio clearly thought she was not

performing well the second time she was hired at

Proklean. There is simply nothing here from which to

infer intentional discrimination.

Because we agree with the District Court that

Rahman has not raised any genuine issues as to any

material fact, we affirm the Court’s grant of summary

judgment to Citterio.

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-1894

FARIDA B. RAHMAN,

Appellant

vs

CITTERIO U.S.A. CORPORATION

Appeal from the United States District Court

For the Middle District of Pennsylvania

(D.C. Civil No. 00-cv-01811)

District Court Judge: Honorable Edwin M. Kosik

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 28, 2003

Before: SLOVITER and RENDELL, Circuit Judges,

and DEBEVOISE, District Judge*

JUDGMENT

This cause came on to be heard on the record

from the United States District Court for the Middle

District of Pennsylvania and was submitted pursuant

to Third Circuit LAR 34.1(a) on January 28, 2003. On

consideration whereof, it is now here

*The Honorable Dickinson R. Debevoise, Senior

District Judge for the District of New Jersey, sitting

by designation.

ORDERED and ADJUDGED by this Court that

the Order of the District Court entered on March 26,

2002, be and the same is hereby AFFIRMED. All of

the above in accordance with the opinion of this Court.

Costs taxed against the Appellant.

ATTEST:

s/ Kathleen Brown

Chief Deputy Clerk

Dated: January 29, 2003

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FARIDA B. RAHMAN,

Plaintiff,

‘CIVIL ACTION NO.

Vv. : 3:00-1811

: (JUDGE KOSIK)

CITTERIO U.S.A.

CORPORATION,

Defendant.

MEMORANDUM

On October 13, 2000, plaintiff, Farida B.

Rahman, filed the above employment discrimination

action against defendant Citterio U.S.A. Corporation,

pursuant to Title VII of the Civil Rights Act of 1964,

1991; the Pennsylvania Human Relations Act (“PHRA”),

43 Pa. C. S. §951 et. seq; and 42 U.S.C. § 1981. In her

complaint, plaintiff alleges defendant discriminated

against her because of her race, national origin, religion,

and gender. Presently before the Court is defendant’s

Motion for Summary Judgment. For the reasons that

follow, we will grant defendant’s motion and close this

case.

I. Background

Plaintiff, Farida Rahman, is an Asian-Muslim

female who currently resides in White Haven,

Pennsylvania. Defendant, Citterio U.S.A. Corporation

(“Citterio”), is a meat processing plant located in

Freeland, Pennsylvania.

On March 18, 1994, defendant hired the plaintiff

as a temporary Class Four production worker. A

temporary employee could become a permanent

employee after sixty working days, at which time he or

she would be eligible for union membership. According

to defendant’s production reports, Ms. Rahman’s

responsibilities included packaging, slicing, washing,

shipping, cleaning and peeling; the reports indicated on

a few occasions that plaintiffs work was “good.”

Plaintiffs direct supervisor was Hugh Maloney,

who oversaw second shift production. On at least one

occasion, plaintiff was assigned to sanitation work, and

was supervised by Nick Evancho. Plaintiff continued in

her position at Citterio until May 20, 1994, when she

was laid off. Subsequently, plaintiff asserts she called

and stopped by the plant to express her interest in

returning to work, and was informed by Citterio that

she need not submit a formal application for re-

employment.

On October 5, 1994, defendant again hired the

plaintiff for production work. On December 21, 1994,

plaintiff was once again laid off. Plaintiff contends that

she consistently reapplied for positions at defendant’s

business in 1994, 1995, 1996, 1997, 1998, and 1999, but

was never again rehired by defendant. In mid-

December 1996, however, plaintiff obtained a position

with Prokleen, a subcontractor hired by defendant to do

some of its sanitation work. Plaintiff did sanitation

work for Prokleen at defendant’s plant until March 3,

1997, when she was once more laid off. :

The evidence submitted by the parties

demonstrates that plaintiff made the following

employment inquiries with the defendant. On April 2,

1997, Ms. Rahman sent a letter addressed to Greg

Yackanicz’, general foreman at Citterio, expressing her

interest in a position with the company, and stating that

she attempted to contact him several times. Plaintiff

stated “I try to contact with you several times to let you

know that I am interested to work again, I was told we

‘Mr. Yackanicz’s responsibilities at Citterio

include personnel matters.

are not hiring but we will keep you in mind. I fell [sic]

very sad to know that since then you hire 19 workers

permanently but I am not one of them although I am a

very good worker and I show my interest time & time

again.” Plaintiff closed by stating “I understand my job

at Citterio in [sic] your hand. I am desperately seeking

your help. Please consider my matter with your gracious

kindness....” (Doc. 20, Ex. B of Ex. A).

On May 15, 1997, plaintiff sent another letter to

Mr. Yackanicz, asking him to look over her pay stubs

from Prokleen. Additionally, plaintiff asked Mr.

Yackanicz to review a “notice of determination” from the

Job Center, and a reference letter. She declared that

“Notice of determination sign [sic] by Robert J. Sturak

proofs [sic] my separation with Prokleen USA is not my

fault and Mr. James Curto’s reference letter proofs [sic]

I am a good worker.” In closing, she stated “...I hope

you will be kind enough to consider me as a candidate in

the future.” (Doc. 20, Ex. A of Ex. A).

On April 22, 1998, plaintiff wrote a third letter to

Mr. Yackanicz. Ms. Rahman began by claiming “Since

I heard from you Hugh & Nick have something against

me working at Citterio I requested several times to find

out what they might have but unfortunately my

requests were unanswered/ignored. I don’t understand

why they can’t tell me if there is anything I did

wrong....” In her deposition, plaintiff indicated that her

letter referenced a previous telephone conversation she

had with Mr. Yackanicz. During their conversation,

plaintiff claims Mr. Yackanicz communicated that he

hesitated to hire her because of something Mr. Maloney

and Mr. Evancho said about her. Plaintiffs letter

continued by pointing out that “19 workers were hired

permanently in class four & five. Everytime [sic] I show

my interest I was told we are not hiring but we will

? During her deposition, Ms. Rahman testified

that Robert Sturak was a representative at the job

center through which plaintiff obtained

employment at Prokleen, that the “notice of

determination” was a reference to an

Unemployment Compensation claim plaintiff filed,

and that James Curto was plaintiffs former

employer.

keep you in mind. Last temporary worker was hired but

you didn’t give me a chance. After Prokleen USA left

you hire more workers but again you didn’t give me a

chance.” Once more, Ms. Rahman asked Yackanicz to

consider her as a candidate for employment. (Doc. 20,

Ex. C of Ex. A).

The record also includes correspondence from

defendant to plaintiff, dated May 30, 1998. The letter,

purportedly authored by Nick Evancho and Hugh

Maloney, * states that defendant did not have a problem

with plaintiffs job as a production worker, and that she

“did a ok job.” The letter claims that at the time

plaintiff was looking for work, Citterio was hiring only

sanitation workers, and that while working for Prokleen

as a sanitation worker, plaintiff “was not able to get the

job done in a reasonable time.” According to defendant,

because of the imposition of new inspection procedures

by the United States Department of Agriculture,

defendant “could not take any chance with anyone,” and

hired only the “very best Pro-kleen [sic] employees.”

Defendant closed by informing plaintiff “If you were

good at your job with Prokleen you would be working for

us now. Sorry you took that job with Lee. We are not

hiring production workers in Freeland at this time. If

that was the case we would consider you.” (Doc. 20, Ex.

E).

On June 24, 1998, Ms. Rahman wrote to Hugh

Maloney and Nick Evancho at Citterio. She confirmed

receipt of the May 30, 1998 letter, which she claimed

“put an innocent victim on trail [sic].” Ms. Rahman

indicated that she felt the information in the May 30 *

correspondence “does not add up to a good reason.” “I

know you hire some of Lee’s workers and I also know

you hire some of your workers from the street but again

I did not get a chance although I have several years of

previous experience with food service prior to work at

Citterio.” Plaintiff closed by stating “I believe in myself

and I believe I should get a chance to work at Citterio.”

*During his deposition, Hugh Maloney testified

that it was he, and not Nick Evancho, who wrote

the letter to plaintiff. Mr. Maloney testified that

Mr. Evancho had no involvement in writing the

letter. (Doc. 24, Ex. A at 28).

(Doc. 20, Ex. D of Ex. A).

The last correspondence submitted to the Court

between plaintiff and defendant is dated November 19,

1998, in which plaintiff informed Mr. Yackanicz that

she had not received a response from Hugh and Nick,

and again requested consideration for employment.

(Doc. 20, Ex. E. of Ex. A).

On May 24, 1999, plaintiff filed a charge of

discrimination against Citterio with the Equal

Employment Opportunity Commission (“EEOC”). At

that time, plaintiff also indicated that she wished to file

a charge of discrimination concurrently with the

Pennsylvania Human Relations Commission (“PHRC’”).

On October 13, 2000, plaintiff instituted the

instant action. Defendant filed a motion for summary

judgment on August 1, 2001. In its motion, defendant

raises the following arguments in support of dismissal

of plaintiffs case: (1) plaintiff has failed to establish a

prima facie case of discrimination; (2) plaintiff has not

shown that defendant’s articulated legitimate reason for

not hiring plaintiff was pretextual and (3) plaintiff did

not make the requisite timely filing with the EEOC with

respect to some of her claims. (Doc. 19). Appropriate

briefs have been filed by the parties and the matter is

ripe for disposition.

II Discussion

A. Standard of Review

Summary judgment is appropriate when “there

is no genuine issue as to any material fact, and the

moving party is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56 (c). When ruling on a motion for

summary judgment, the court must view the record in

a light most favorable to the non-moving party. Skerski

v. Time Warner Cable Co. , 257 F.3d 273, 278 (3d Cir.

2001). Moreover, the court must draw all reasonable

inferences in favor of the non-movant. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202,

106 S. Ct. 2505 (1986).

The burden rests with the moving party to

demonstrate that there is no genuine issue of material

fact; thereafter, the non-moving party must counter

with evidence that supports each essential element of

his or her claim. Skeceki at 278, citing Pittston Co.

ram ., 124 F.3d 508, 515

(3d Cir. 1997). The non-moving party must do “more

than simply show that there is some metaphysical doubt

as to the material facts,” and where the record taken as

a whole could not allow a rational fact-finder to find in

favor of the non-moving party, summary judgment is

appropriate. Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 587, 89 L. Ed. 538, 106 S. Ct. 1348

(1986).

B. McDonnell-Douglas framework

In McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the

Supreme Court set forth the following framework to

allocate the burdens and order of proof in cases in which

a plaintiff seeks to prove discrimination through

circumstantial evidence. First, a plaintiff must

establish a prima facie case of discrimination, which

gives rise to a legal presumption that the employer

unlawfully discriminated against the plaintiff. Id. at

802. Once an employee establishes prima facie case of

discrimination, the burden shifts to the employer to

articulate a legitimate, non-discriminatory reason for its

decision. Id. T he employer's burden is one of

production; the employer must simply provide evidence

which, taken as true, would allow the finder of fact to

conclude there was a nondiscriminatory reason for not

hiring the plaintiff. See Fuentes v. Perskie, 32 F.3d 759,

763 (3d Cir. 1994).

After the employer articulates a legitimate

reason for its decision, the presumpiion of

discrimination no longer applies. The burden shifts

back to the plaintiff, who then must prove

discrimination by a preponderance of the evidence.

248, 256, 101 S.Ct. 1089, 1095, 67 L. Ed. 2d 207, 217

(1981). This may be done by showing either that the

employer's proffered reason is a_ pretext for

discrimination, or that discrimination was more likely

than not a motivating factor in the employer’s decision.

Id. The analytic framework developed in McDonnell

Douglas applies equally to the failure to hire,

retaliation, and §1981 claims asserted by the plaintiff.

See McDonnell Douglas, 411 U.S. 792, Bazargani v.

Haverford State Hosp., 90 F. Supp.2d 643, 653 (E.D. Pa.

2000), Stewart v. Rutgers, the State University , 120

F.3d 426, 432 (3d. Cir. 1997). Additionally, the

McDonnell Douglas approach applies to plaintiffs state

law claims under ni PHRA. See Allegheny Housing

Rehabilitation Co lv H a

Comm’n, 516 Pa. 124, 128, 532 A.2d 315, 317 (Pa. 1987).

C. Analysis

Defendant’s initial argument in favor of

summary judgment is that plaintiff has failed to

establish a prima facie case of discrimination. In a

failure to hire case, a plaintiff may make a prima facie

showing by demonstrating that (1) she belongs to a

protected class; (2) she applied for and was qualified for

a job for which the employer sought applicants; (3)

plaintiff was rejected despite her

qualifications; and (4) after plaintiffs rejection, the

employer continued to seek applicants with plaintiffs

qualifications. Fuentes, 32 F.3d at 763.

Plaintiff and defendant agree that plaintiffis an

Asian female from Bangladesh, and that she is Muslim.

(Doc. 1; Doc. 4). In addition, the parties agree that

defendant hired plaintiff as a production worker twice

in 1994 (Doc. 19; Doc. 22). Similarly, it has been

conceded that plaintiff sought to be rehired several

times between 1994 and 1999, and that other non-

Muslim individuals were, at minimum, hired between

1994 through 1995, a time when plaintiff made

employment inquiries with defendant. (Doc. 1; Doc. 4).

Defendant’s primary disagreement concerning

plaintiffs prima facie case relates to her ability to show

that she was qualified for the position. In response to

defendant’s motion, plaintiff has provided her deposition

testimony that she is a “good worker,” (Doc. 20, Ex. A.

at 74), and points to a letter written by Hugh Maloney,

which indicates he felt she did “a ok job” as a production

worker. (Doc. 20, Ex. E). The production reports from

plaintiffs second period of employment do not address

her performance, although those from her initial hire

indicate on a few occasions that pleintiffs work was

“good”. (Doc. 26, Ex. A-1; Doc. 24, Ex. D). Establishing

a prima facie case of discrimination under Title VII is

not an onerous burden, see Ezold v. Wolf, Block, Schorr

& Solis-Cohen, 983 F.2d 509, 523 (3d. Cir. 1992). This

light burden, in addition to the requirement that we

construe the record before us in a light most favorable

to plaintiff, leads us to conclude that an issue exists as

to whether or not plaintiff has established a

prima facie case of discrimination. Therefore, we will

assume that plaintiff has met her burden and has

established a prima facie case.

As explained above, the establishment of a prima

facie case shifts the burden of production to the

defendant, who must then articulate a legitimate, non-

discriminatory reason for its hiring decision. McDonnell

Douglas Corp., 411 U.S. at 802. In its Memorandum of

Law In Support of Summary Judgment, defendant

claims that plaintiff was not rehired because she

received less favorable evaluations from her supervisor,

Hugh Maloney, during her second period of employment

as a production worker. (Doc. 19). Additionally,

defendant argues that plaintiff performed poorly during

her employment as a sanitation worker with Prokleen,

and that defendant took this information into account in

its decision not to rehire plaintiff for such work.

(Doc.19).

Defendant supports its assertion through the

deposition testimony of Hugh Maloney, who testified

that he assessed plaintiffs production work during her

second employment period as “below average” (Doc. 20,

Ex. C at 31), and that he informed plaintiff in 1995 and

1996 that Citterio was not hiring or that she “wasn’t

what [Citterio] wanted,” or “she didn’t do the job

[Citterio] needed.” (Doc. 20, Ex. C at 32-33).

Additionally defendant submitted a deposition from

Greg Yackanicz, who testified that after his receipt of

letters from the plaintiff, Mr. Yackanicz discussed

plaintiffs situation with Mr. Maloney. (Doc. 20, Ex. D).

According to Mr. Yackanicz, Mr. Maloney confirmed

that he informed plaintiff that “we weren’t going to

consider hiring her again because we felt that she

wasn’t above average or a top performer. And also, that

she had a chance with Proklean [sic], and that we had

direct knowledge that she wasn’t a good performer there

also....” (Doc. 20, Ex. D at 79).

A nondiscriminatory reason having been

provided, under the framework set forth in McDonnell

Douglas, the burden shifts back to the plaintiff. To

survive a motion for summary judgment, the plaintiff

must point to some evidence, direct or circumstantial,

that would allow a reasonable trier of fact to conclude

that either defendant’s articulated reason is not true

and thus, is a mere pretext for discrimination, or that

discrimination was more likely than not a motivating

factor in defendant’s hiring decision. See Fuentes, 32

F.2d at 764. To demonstrate pretext, a plaintiff must do

more than show that the employer’s decision was wrong

or mistaken; she must point out “such weaknesses,

implausibilities, inconsistencies, or contradictions in the

employer's proffered legitimate reasons for its action

that a reasonable factfinder could rationally find them

s unworthy of credence....” Id. at 765. “It is not enough, in

other words, to disbelieve the employer; the factfinder

must believe the plaintiffs explanation of intentional

discrimination.” See St. Mary’s Honor Center v. Hicks,

509 U.S. 502, 519, 113 S.Ct 2742, 2754, 125 L. Ed. 407,

424 (1993).

Plaintiff in this case seeks to survive defendant’s

motion for summary judgment by rebutting defendant’s

assertion that plaintiff's performance during her second

period of employment in conjunction with her work for

Prokleen, were the reasons why she was not rehired by

Citterio. (Doc. 22). To prove pretext, plaintiff points to

a number of alleged contradictions in defendant’s

testimony, and to production reports commenting on

plaintiffs work. (Doc. 22). However, for the reasons

explained below, we find that the evidence offered by

plaintiff could not allow a rational factfinder to conclude

that defendant’s proffered explanation is a pretext for

discrimination, or that discrimination was more likely

than not a motivating factor in defendant’s decision not

to rehire plaintiff.

At the outset, plaintiff draws attention to a

“blatant contradiction” made by Hugh Maloney, who

stated in a letter that plaintiff was an “ok” production

worker pre-litigation, (Doc. 20, Ex. E) but then testified

that her work was “below average” during his

deposition. (Doc. 20, Ex. C at 31). (Doc. 22). We find

that the letter in question does not offer a clear

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evaluation of plaintiffs performance as a production

worker. The fact that defendant’s letter describes

plaintiffs work as “ok” does not mandate the conclusion -

that defendant was completely satisfied with plaintiffs

production work. Moreover, the letter points out

plaintiffs deficiencies as a sanitation worker and

therefore supports defendant’s articulated reason for not

rehiring plaintiff as a sanitation worker.

Additionally, plaintiff argues that production

reports from her periods of employment with Citterio

assist in proving that defendant’s reasons for not hiring

plaintiff are pretextual. As defendant points out,

however, only the production reports from her first

period of employment, from March 18, 1994 to May 20,

1994, indicate that her production work was “good.”

(Doc. 24, Ex. D). In contrast, the production reports

from her second period of employment, from October 5,

1994 through December 21, 1994 do not indicate the

quality of plaintiffs work. (Doc. 26, Ex. A-1). Therefore,

the production reports do not support plaintiffs

assertion that her performance was above average for

that time period.

Plaintiff attempts to further show pretext by

contrasting the deposition testimony of Mr. Yackanicz

and Mr. Maloney. (Doc. 22). Specifically, plaintiff

argues that Mr. Yackanicz testified that plaintiff

performed below average during her first employment

period, while Mr. Maloney testified that plaintiffs work

was below average duringher second employment

period at Citterio. (Doc. 22). According to plaintiff,

such contradictions “make it implausible to believe

Defendant’s proffered reason that Plaintiff was not

hired because she performed ‘below average’ during her

second period of employment with Citterio.” (Doc. 22 at

13). Because plaintiff does not cite to the area of the

record to which she refers, we read plaintiffs brief to

refer to Mr. Yackanicz’s deposition testimony that he

was later informed by Mr. Maloney that plaintiff had

not performed well in sanitation work during her first

period of employment. (Doc. 20, Ex. D. at 54).

Nonetheless, both Mr. Maloney’s testimony and

production reports indicate that plaintiff performed

cleaning duties during her initial work period with

Citterio. (Doc. 24, Ex. D; Doc. 20, Ex. C. at 14).

Additionally, both Mr. Yackanicz’s and Mr. Maloney’s

testimony consistently state that plaintiffs work in

sanitation was poor. (Doc. 20, Ex. D at 54; Ex. C at 14).

Therefore, plaintiffs argument on this point is not

supported by the record.

Another alleged contradiction to which plaintiff

refers in Mr. Maloneys testimony concerns his

evaluation of the work performance of Fred Bezick, an

employee at defendant’s plant. (Doc. 22). Mr. Maloney

testified that the criteria used to evaluate an individual

included (1) the ability to learn and perform a job, and

(2) absenteeism. (Doc. 20, Ex. C at 9). Plaintiff, in her

opposition brief, highlights the fact that Mr. Maloney

testified that Bezick’s performance was above average

at Bezick’s initial hire, but then Mr. Maloney testified

that Fred had a problem with absenteeism and that Mr.

Maloney did not consider him an above average

employee at his initial hire. (Doc. 22). Again, we do not

find this testimony to be clearly contradictory or helpful

to plaintiffs pretext argument. Mr. Maloney’s

testimony indicates that he felt Bezick’s performance

was above average, but he did not think Bezick was

above average in absenteeism. (Doc. 20, Ex. C at 9).

When asked if he considered Bezick “an above average

employee the first time,” Mr. Maloney responded “No.”

(Doc. 20, Ex. C at 9). Thus, this testimony fails to assist

plaintiff in meeting her burden of proving pretext.

Plaintiff also bases her pretext argument on

testimony from Hugh Maloney that plaintiffs

performance was “below average.” (Doc. 22). Plaintiff

states that “[iJn explaining how Plaintiff was allegedly -

‘below average,’ Defendant points to the fact that

Plaintiff ‘showed an inability to learn jobs and had to

have jobs reshown.” (Doc. 22 at 14). Plaintiff argues

that because Mr. Maloney testified that he could not

remember what jobs he had to reshow plaintiff, that

other workers sometimes had to be reshown jobs, and

that he hired others in 1994 who had to be shown jobs

more than once, this demonstrates that plaintiff was

held to a different standard than other employees. (Doc.

22).

We find that plaintiffs argument on this matter

is not supported by the record. Because we cannot

locate the text directly quoted and cited by plaintiff, we

read plaintiffs quotation of the record to refer to the

pages of Mr. Maloney’s deposition in which he testifies

regarding plaintiffs performance during her second

period at Citterio.‘ Mr. Maloney testified as follows:

Q. And your assessment of the Plaintiff at the time

of her second time with you, how did you assess

her?

Below average, not as good as the first time.

What happened during the second period that

make [sic] her go below average?

I don’t remember right now.

But you remember that it was below average?

Otherwise I would have recommended her.

But you cannot recall why she was_ below

average?

Ican’t remember specific dates, times number of-

ME NS MRE ES NHANES SEAM AMAT DART SRT IN Ge

I just want to know why she was below average?

You don’t have to give me dates and times.

Her inability to learn lots of jobs, having to re-

show her jobs again.

So the second time you had to show her jobs a

second time?

I am sure I did because that’s one of the things I

consider, yeah. I don’t remember which jobs

now.

Q: And don’t have any notes about this?

A: No.

(Doc. 20, Ex. C at 30-31).

Plaintiff then compares this testimony to

defendant’s earlier deposition testimony regarding

plaintiffs initial hire, which is as follows.

Q: How was Plaintiffs performance at her initial

hire?

ERNE AS CRUR IRENA LON RIE AR IPOD

r oO F&F O&O PF OPoP OP

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‘In her brief, plaintiff quotes the defendant

as stating plaintiff was below average

because she “showed an inability to learn

jobs and had to have jobs reshown.” The

citation plaintiffs counsel provides for this

testimony is “Exhibit A pg. 7.” There is no

such testimony in plaintiffs Exhibit A, page

7. The testimony most closely resembling the

cited testimony is found in Mr. Maloney’s

deposition on page 31, quoted above.

Average.

What do you consider average?

Able to do most of the jobs, but several jobs I

showed her, I’d have to show her again a second

time, third time possibly...

POP

*

*

What jobs did you have to show her to do more

than once?

I don’t remember.

But you recall that you did require —

Yes.

But you don’t actually remember which ones?

No.

Did you ever have to show someone a job twice?

Sometimes.

During 1994, did you ever hire someone that you

had to show them a job more than once?

Yes.

(Doc. 20, Ex. C at 10-12).

As we indicated earlier, plaintiff was hired by

defendant on two separate occasions. Although laid off,

she was rehired. At no time was her race, national

origin, religion, or gender in any way implicated.

Defendant’s proffered non-discriminatory reason for not

hiring plaintiff relates to her performance during her

second period of employment at Citterio, from October

5, 1994 through December 12, 1994, as well as her

performance while working for Prokleen in December of

1996 through March 3, 1997. Mr. Maloney’s testimony

clearly states that he considered her an “average”

employee during her initial work period, but that he did

have to reshow her some jobs. (Doc. 20, Ex. C at 10-12).

The fact that he had to redemonstrate jobs for others

and hired others in 1994 who had to be reshown jobs,

does not indicate that plaintiff was held to a different

standard than others. In fact, the record clearly shows

that plaintiff herself was rehired in 1994. Therefore,

plaintiffs argument in this regard fails to show that

defendant’s articulated reason is a pretext for

discrimination.

Finally, plaintiff Sion defendant’s proffered

non-discriminatory reason for not rehiring her by

reference to the hiring or retention of two other

employees. (Doc. 22). First, plaintiff argues that

QOPrOroOroe 6*

>

discrimination is evident from the fact that defendant

hired a male employee, Bob Bobeck, after he received

poor evaluations regarding his performance in

sanitation, “which allegedly was Plaintiffs problem.”

(Doc. 22 at 15). Nonetheless, this is not helpful to

plaintiffs case because as defendant points out in its

reply brief, Mr. Bobeck, as a member of the union, is

subject to different standards than a temporary

employee attempting to become a permanent employee.

(Doc. 25 at 13).°

Plaintiff also raises the fact that defendant hired

a white, male employee, Fred Bezick, “even though the

temporary employee had an attendance problem and

was ‘okay.”™ (Doc. 22 at 15). However, it is clear from

the record cited by the plaintiff that Mr. Maloney

testified that he felt Mr. Bezick’s “[wJork performance

was above average,” (Doc. 20, Ex. C at 30), but that

when asked by Mr. Yackanicz about hiring additional

people, Mr. Maloney recommended Bezick by telling Mr.

Yackanicz that “Bezick was okay but missed some time.”

Therefore, plaintiffs contention on this point has no

merit.

Having carefully reviewed all of plaintiffs

arguments, in light of the instant record, we find that ~

she has not rebutted defendant’s articulated non-

discriminatory reason for not hiring her after her second

period of employment at Citterio. Plaintiffs assertion

that she is a “good worker” (Doc. 20, Ex. A at 74), and

that she believes she was discriminated against because

of her gender, race, nationality, and religion (Doc. 24,

Ex. F), is not borne out by the record and there is

insufficient evidence by which a reasonable factfinder

5 We note that in his deposition testimony,

Mr. Maloney testified that he was uncertain

about Mr. Bobeck’s union status at the time

he received complaints concerning Bobeck’s

sanitation work. (See Doc. 24, Ex. A at 16, “I

don’t remember the exact time, but he may

have already been in the union, he may have

already had his 60 days in.”) However, the

nature of Mr. Bobeck’s union status was

confirmed in defendant’s reply brief. (Doc. 25

~ at 13).

could conclude that Citterio’s proffered reason is a

pretext for discrimination. As reflected above,

defendant hired the plaintiff on two occasions. The

evidence indicates that plaintiffs below average

performance during her second period of employment, in

conjunction with her poor performance as a sanitation

worker for Prokleen, resulted in plaintiffs not being

rehired as a sanitation worker by the defendant.

To discredit. defendant’s explanation, plaintiff

had to do more tian “simply show the employer's

decision was wrong or mistaken, since the factual

dispute at issue is whether discriminatory animus

motivated the employer, not whether the employer is

wise, shrewd, or competent.” Fuentes, 32 F.3d at 765

(emphasis added). Because plaintiff has not shown that

genuine issues of material fact exist concerning

defendant’s proffered non-discriminatory explanation,

we find that she has not produced the requisite evidence

to survive defendant’s motion for summary judgment,

and we will grant defendant’s motion as to all counts of

plaintiffs complaint. Further, because we find that

plaintiffs action cannot withstand defendant’s motion

for summary judgment on the merits, we will not

address defendant’s final argument, namely, that some

of plaintiff's claims are time-barred for failure to timely -

file her claims with the EEOC.

Ill Conclusion

For the reasons stated above, we will grant

defendant’s motion for summary judgment. An

appropriate Order is attached.

6 As we indicated earlier, while plaintiff

brings counts under the Pennsylvania

Human Relations Act and 42 U.S.C. §1981,

the same analysis applies to all of plaintiffs

claims. Accordingly, we do not need to

address these claims individually.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FARIDA B. RAHMAN,

Plaintiff,

_ CIVIL ACTION NO.

Vv. : 3:00-1811

: (JUDGE KOSIK)

CITTERIO U.S.A. ;

CORPORATION,

Defendant.

ORDER

AND NOW, this day of March, 2002, IT IS

HEREBY ORDERED THAT:

[1] defendant’s motion for summary judgment

(Doc. 13) is granted;

[2] judgment is hereby entered in favor of the

defendant and against the plaintiff; and

[3] the Clerk of Court is directed to close the

case.

Edwin M: Kosik

United States District Judge

APPENDIX C

Ms. Marcia M. Waldron, Clerk

U S Court of Appeals for the Third Circuit

21400 U.S. Courthouse

610 Market Street

Philadelphia PA 19106-1790

Re: Rahman v. Citterio USA Corp.

Docket No. 02-1894

Dear Ms. Waldron:

I am requesting more time (45 days if possible) to file

papers for rehearing, because at this time I am without

an attorney. Cynthia L. Pollick, Esquire is not willing

to represent me any more in this matter. I received the

Court Order on February 5, 2003, and talk to a few

attorneys, but no one is available to help me in short

time.

Please give me more time so that I can find an attorney

who will be able to help me in this matter.

Thank you.

Sincerely,

s/ Farida B. Rahman

Hickory Hills, Box 78

White Haven, PA 18661

(570) 443-4468

February 8, 2003

Certification of Service

I hereby certify that the within pleading is being

filed and served upon all other parties to this action

within the time period allowed by the U.S. First Class

Mail, Postage prepaid.

s/ Farida B. Rahman

Hickory Hills, Box 78

White Haven, PA 18661

(570) 443-4468

Dated: February 8, 2003.

APPENDIX D

Marcia M. Waldron, Clerk

U S Court of Appeals for the Third Circuit

21400 U.S. Courthouse

610 Market Street

Philadelphia PA 19106-1790

Re: Rahman v. Citterio USA Corp.

Docket No. 02-1894

Reply Certification

Dear Ms. Waldron:

Enclosed please find a copy of the letter dated February

3, 2003, from attorney Cynthia L. Pollick in which she

is saying that , “I no longer represent you in this matter,

and if you want to take any further appeals, you need to

find other counsel.”

Also enclosed please fine a copy of the letter dated

February 11, 2003, from the other party in which they

falsify information once again, and object to my request,

which should be thrown out, and I believe lying in Court

of law should be punishable.

Please give me more time (45 days if possibie) so

that I can find an attorney who will be able to help me.

Thank you.

Sincerely,

s/ Farida B. Rahman

February 16, 2003

CERTIFICATION OF SERVIC

I hereby certify that the within pleading is being

filed and served upon all other parties to this action by

the U.S. First Class Mail, Postage prepaid.

s/ Farida B. Rahman

Hickory Hills, Box 78

White Haven, PA 18661

(570) 443-4468

Dated: February 16, 2003

APPENDIX E

UNITED STATES DISTRICT COURT FOR THE

THIRD CIRCUIT

February 12, 2003

No. 02-1894

FARIDA RAHMAN, ieee

v.

CITTERIO U.S.A., CORPORATION

(Middle Dist of PA (Scranton) Civil No. 00 cv-01811)

(EMK)

PRESENT: Rendell, Circuit Judge

Letter Motion by Appellant Pro Se for 45 day

extension of time to file Petition for Rehearing.

s/ Debra D. Wall 267-299-4934

Quality Assurance

Response due 2/24/03

ORDER

The foregoing

Motion is granted.

Petition is due to be filed on April 1, 2003.

By the Court,

s/ Marjorie O. Rendell

Circuit Judge

Dated Feb 20, 2003

dw/cc: FBR

: JMG

THE EMPLOYMENT LAW FIRM

Greater Pittston Professional Center

126 S. Main Street, Suite 201

Pittston PA 18640

(570) 654-9675

FAX: (570)654-5021

Cynthia L. Pollick, Esquire

LL.M. in Trial Advocacy

Also admitted in New Jersey

February 3, 2003

ERTIFIED L

Ms. Farida Rahman

Box 78

Hickey Hills

White Haven PA 18661

RE: Rahman v. Citterio

Dear Farida:

Enclosed please find the decision from $ Circuit,

which I spoke about during our telephone conference

today. As I stated in our telephone conference, I no

longer represent you in this matter, and if you want to

take any further appeals, you need to find other counsel.

If you have any questions, please feel free to

contact me.

Very Truly Yours,

s/ Cynthia L. Pollick, Esquire

CLP\lc

Enclosures

Law Offices of

LAPUTKA, BAYLESS, ECKER & COHN

A Professional Corporation

2 East Broad Street

Sixth Floor

Martin D. Cohn Hazleton, PA 18201-6592

Bruce S. Miller (570) 455-4731

Bart E. Ecker FAX (570) 459-0729

Robert S. Sensky

John M. Gallagher

Jeffrey C. Majikas

Timothy D. Belt

Theodore R. Laputka, Sr. (Ret.)

Kenneth R. Bayless (1920-1994)

Bartel E. Ecker (1913-1997)

February 11, 2003

Ms. Marsha M. Waldron

Clerk

United States Court of Appeals for the Third Circuit

21400 U.S. Courthouse

601 Market Street

Philadelphia PA 19106-1790

Re: Rahman vs. Citterio U.S.A. Corp.

No. 02-1894

Dear Ms. Waldron:

I am in receipt of Farida B. Rahman’s

correspondence dated February 8, 2003 (in which she

requests an extension of time to “file papers for

rehearing”). Please be advised that on behalf of

Appellee, Citterio U.S.A. Corp., we object to same as Ms.

Rahman has counsel of record and we do not believe

there is a just reason for there to be an extension of

time.

-

f

ee:

I appreciate your kind attention to this matter.

Very truly yours, -

LAPUTKA, BAYLESS, ECKER &

COHN, P.C.

s/John M. Gallagher

JMG:tld

ce: Cynthia L. Pollick, Esquire

Ms. Farida B. Rahman

Mr. Michael Zieminski

Robert S. Sensky, Esquire

APPENDIX F

SUR PETITION FOR REHEARING

WITH SUGGESTION FOR REHEARING IN BANC

The petition for rehearing filed by appellant

having been submitted to all judges who participated in

the decision of this court, and to all the other available

circuit judges in active service, and a majority of the

judges who concurred in the decision not having asked

for rehearing, and a majority of the circuit judges of the

circuit in regular active service not having voted for

rehearing by the court in banc, the petition for

rehearing is hereby DENIED.

BY THE COURT:

s/ Marjorie O. Rendell

Circuit Judge

Dated: June 24, 2003

DW/cc: FBR

JMG

APPENDIX G

42 U.S.C.A. § 2000e-2

UNITED STATES CODE ANNOTATED

TITLE 42. THE PUBLIC HEALTH AND WELFARE

CHAPTER 21--CIVIL RIGHTS

SUBCHAPTER VI--EQUAL EMPLOYMENT

OPPORTUNITIES

§ 2000e-2. Unlawful employment practices

(a) Employer practices

It shall be an 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; or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would

deprive or tend to deprive any individual of

employment opportunities or otherwise adversely

affect his status as an employee, because of such

individual's race, color, religion, sex, oF national

origin.

(b) Employment agency practices

It shall be an unlawful employment practice for an

employment agency to fail or refuse to refer for

employment, or otherwise to discriminate against, any

individual because of his race, color, religion, sex, Or

national origin, or to classify or refer for employment

any individual on the basis of his race, color, religion,

sex, or national origin.

(c) Labor organization practices

It shall be an unlawful employment practice for a

labor organization--