Gender discrimination v. objective qualifications

United States 3rd Circuit Court of Appeals Reports

SCHEIDEMANTLE v. SLIPPERY ROCK UNIV., 05-3850 (3rd Cir.
12-19-2006) JUDY SCHEIDEMANTLE, Appellant v. SLIPPERY ROCK
UNIVERSITY STATE SYSTEM OF HIGHER EDUCATION. No. 05-3850.
United States Court of Appeals, Third Circuit. Argued
October 4, 2006. filed December 19, 2006.

Appeal from the United States District Court for the
Western District of Pennsylvania, (D.C. Civil Action No.
04-CV-00331), District Judge: Honorable Donetta W. Ambrose.

Neal A. Sanders, Esquire (Argued), Butler, PA 16001,
Counsel for Appellant.

Thomas W. Corbett, Jr., Attorney General Craig E. Maravich
(Argued) Deputy Attorney General Calvin R. Koons, Senior
Attorney General John Knorr, III Chief Deputy Attorney
General Appellate Division Office of Attorney General of
Pennsylvania, Pittsburgh, PA 15219, Counsel for Appellee.

Before: McKEE, AMBRO, and NYGAARD, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Judy Scheidemantle alleges that Slippery Rock University
discriminated against her by refusing twice to promote her
for an advertised locksmith position and hiring unqualified
male employees instead. Slippery Rock countered, in a
motion for summary judgment, that it did not promote
Scheidemantle because she was unqualified for the position.
The United States District Court for the Western District
of Pennsylvania agreed with Slippery Rock in granting its
motion, determining that Scheidemantle failed to establish
a prima facie case of gender discrimination because she did
not meet the “objective qualifications” for the position.

Scheidemantle appeals to us. We must decide whether an
employer that hires someone who lacks a job posting’s
objective qualifications can point to the absence of those
same qualifications in another applicant as a basis for
declining to hire that second applicant. We hold that it
cannot, and in so doing conclude that Scheidemantle
established a prima facie case of discrimination. We thus
reverse the summary judgment and remand.

I. Factual Background

In March 2003, Slippery Rock posted a locksmith position
vacancy, requiring two years of locksmithing experience.
Scheidemantle, who worked for Slippery Rock as a labor
foreman, applied along with three male applicants. She had
completed a home study course in locksmithing and
subsequently received a professional locksmithing
license,[fn1] but neither she nor the other applicants
possessed the requisite two years of locksmithing
experience.

Scheidemantle was not hired. Instead, Calvin Rippey, a
younger employee from the University’s “carpenter
department,” who had no prior coursework and less than two
years’ locksmithing experience, was selected for the
position.

Scheidemantle filed a discrimination claim with the federal
Equal Employment Opportunity Commission (EEOC),[fn2]
alleging age and gender discrimination in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq.,[fn3] and the Pennsylvania
Human Relations Act, 43 P.S. §§ 951 et seq.
(“PHRA”).[fn4] The EEOC dismissed her claim, noting that
her home study course was the equivalent of 241 hours of
actual locksmithing experience, whereas Rippey’s actual
experience included at least 941 hours. It concluded that
Scheidemantle’s “allegations that [she was] discriminated
against because of [her] age and/or sex[] [could] not be
substantiated. The evidence revealed that [Slippery Rock]
selected the candidate with the most experience and/or
training for the locksmithing position.” App. at 88.
Scheidemantle then filed suit in the District Court.

In April 2004, Rippey was promoted out of the locksmith
position and the now-vacant position was again posted in
June 2004, this time requiring three years of locksmithing
experience. Between April and June, Rippey informally had
assigned Bradley Winrader, an employee from the carpenter
department, to perform locksmithing duties on an ongoing
basis. Winrader also had little experience in locksmithing
and had completed no locksmithing coursework until November
2004, when he enrolled in a correspondence course after
beginning his locksmithing assignment. Based on the record
before us, Slippery Rock did not conduct interviews for or
fill the 2004 position on a permanent basis.

In October 2004, Scheidemantle filed another complaint with
the EEOC, which again rejected her case. She then amended
her complaint before the District Court, wherein she
alleged age and gender discrimination for both the 2003 and
2004 rejections. She also alleged, in the alternative, that
the University’s failure to promote her in 2004 was in
retaliation for her 2003 EEOC filing.

The District Court determined that Scheidemantle was not
qualified for the locksmith position according to the
objective criteria listed in the position announcements,
and consequently she could not establish a prima facie case
of discrimination. She appeals to us, asserting only her
gender discrimination claims.

II. Jurisdiction

The District Court had subject matter jurisdiction over the
initial case pursuant to Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-5(f)(3), and 28 U.S.C.
§ 1331. We have appellate jurisdiction pursuant to
28 U.S.C. § 1291.

III. Standard of Review

We exercise plenary review over the District Court’s grant
of summary judgment and apply the same standard the
District Court should apply. See, e.g., Slagle v. County of
Clarion, 435 F.3d at 263 (3d Cir. 2006); Hugh v. Butler
County Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005).
Namely, a grant of summary judgment is proper where the
moving party has established that there is no genuine
dispute of material fact and “the moving party is entitled
to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact
is material if it might affect the outcome of the suit
under the governing substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). To demonstrate that
no material facts are in dispute, the moving party must
show that the non-moving party has failed to establish one
or more essential elements of his or her case. Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986); Hugh, 418
F.3d at 267. In addition, a court should view the facts in
the light most favorable to the non-moving party and make
all reasonable inferences in that party’s favor. Hugh, 418
F.3d at 267.

To prevail on a motion for summary judgment, the non-moving
party needs to show specific facts such that a reasonable
jury could find in that party’s favor, thereby establishing
a genuine issue of fact for trial. See Fed.R.Civ.P. 56(e).
“While the evidence that the non-moving party presents may
be either direct or circumstantial, and need not be as
great as a preponderance, the evidence must be more than a
scintilla.” Hugh, 418 F.3d at 267 (quoting Anderson, 477
U.S. at 251).

IV. Discussion

A. Legal Standards for Establishing Employment
Discrimination

1. Guiding Principles

Two principles guide our analysis. First, Title VII is a
remedial statute, so it must be interpreted broadly. See 42
U .S.C. § 1604.34 (“These rules and regulations
shall be liberally construed to effectuate the purpose and
provisions of Title VII. . . .”); see also Slagle, 435 F.3d
at 267 (citing Bowers v. NCAA, 346 F.3d 402, 431 n. 24 (3d
Cir. 2003) (“We recognize that []Title VII is clearly
remedial civil rights legislation. . . .”)); Idahoan Fresh
v. Advantage Produce, Inc., 157 F.3d 197, 202 (3d Cir.
1998) (noting that we must construe remedial statutes
liberally).

Second, there is a low bar for establishing a prima facie
case of employment discrimination. See, e.g., Ezold v.
Wolf, 983 F.2d 509, 523 (3d Cir. 1993) (“In Title VII cases
involving a dispute over subjective qualifications, we have
recognized that the qualification issue should often be
resolved in the second and third stages of the McDonnell
Douglas . . . analysis [discussed below], to avoid putting
too onerous a burden on the plaintiff in establishing a
prima facie case. . . . Because the prima facie case is
easily made out, it is rarely the focus of the ultimate
disagreement.”) (internal citations and quotation marks
omitted); Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir.
1990) (“The framework set forth in McDonnell Douglas . . .
was never intended to be rigid, mechanized or ritualistic.
Rather, it is merely a sensible, orderly way to evaluate
the evidence in light of common experience as it bears on
the critical question of discrimination.”) (internal
citations omitted).

2. McDonnell Douglas Burden-Shifting Inquiry

To prevail on a claim for gender discrimination under Title
VII and its analogous provision under the PHRA,[fn5]
Scheidemantle must satisfy the three-step burden-shifting
inquiry laid out in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-03 (1973). First, she must establish a prima
facie case of gender discrimination. To do that, she must
demonstrate that (a) she was a member of a protected class,
(b) she was qualified for the locksmith job to which she
applied, and (c) another, not in the protected class, was
treated more favorably. See id. at 802-03.

If she succeeds in making out a prima facie case, the
burden shifts to the University to establish a legitimate
non-discriminatory reason for its failure to promote her.
Id. at 804-05. If the University is able to provide such a
reason, Scheidemantle must then show that the proffered
reason is merely a pretext for actual discrimination. Id.;
see also Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 143 (2000).

B. District Court Decision

The District Court decided this case on the basis of
McDonnell Douglas’s first step alone: that Scheidemantle
could not establish a prima facie case of discrimination
because she failed to meet the qualification prong. (The
Court proceeded on the assumption that the other two prongs
are satisfied, and we agree. Scheidemantle meets the first
prong because, as a woman, she is a member of a protected
class — “sex” under Title VII. She meets the third
prong because the person who filled the position, thereby
receiving more favorable treatment, was a who does not fall
within Title VII’s gender protections.)[fn6]

Slippery Rock argues before us that the District Court’s
decision on Scheidemantle’s lack of objective
qualifications (two or three years’ experience for the 2003
and 2004 positions, respectively) is correct, and this
disqualifies her at the outset as lacking a prima facie
case. Scheidemantle counters that she did not need to meet
the objective qualifications of the job postings because
she was at least as qualified as the male employees hired
for and assigned to the job. Under Hugh v. Butler County
Family YMCA, 418 F.3d 265, 268 (3d Cir. 2005), she argues,
an employer that hires a male who also fails to meet the
objective qualifications for the posted job waives its
ability to rely on objective criteria as the only way to
meet the qualifications prong. We begin, therefore, with
Hugh.

C. Prima Facie Case: Qualifications Prong in Light of Hugh

Our Court in Hugh addressed whether an employer that
promotes an employee who fails to meet a job posting’s
objective criteria can then point to the employee’s failure
to meet those criteria as a valid justification for
employment termination. 418 F.3d at 268. Specifically, Hugh
was promoted despite lacking the associated job posting’s
objective qualifications. When she later was fired and
filed a discrimination claim, did her failure to meet the
job posting’s objective qualifications mean that she also
failed to meet the qualification prong for purposes of
establishing a prima facie case of employment
discrimination? We answered “no” because “it is a fair
inference that the decision to promote Hugh was based on
her satisfactory performance in her two previous positions
[at the organization].” Id. In other words, the promotion
“does establish [] plaintiff’s qualification for [the]
job.” Id. (internal citations omitted). Cf. Jalil v. Avdel
Corp., 873 F.2d 701, 707 (3d Cir. 1989) (holding that where
an employer promoted an eight-year employee “to the `lead
man’ position in his department . . ., satisfactory
performance of duties . . . leading to a promotion clearly
established his qualifications for the job.”).

We have not decided yet whether the qualifications prong
may be met implicitly through the promotion of an
unqualified third party, as in this case, but Hugh provides
guidance. There the employer was precluded from using a
lack of objective qualifications defense, as previously it
had ignored those posted qualifications in promoting the
employee-plaintiff. Applying those principles to this case,
Hugh stands for the proposition that, by departing from a
job posting’s objective criteria in making an employment
decision, an employer establishes different qualifications
against which an employee or applicant should be measured
for the position.

This reading of Hugh is consistent with our review of past
District Court decisions. See, e.g., Pinckney v. County of
Northampton, 512 F. Supp. 989, 998 (E.D. Pa. 1981), aff’d,
681 F.2d 808 (3d Cir. 1982) (concluding that, in order to
establish a prima facie discrimination case, courts should
look to the hiring decision to determine if the plaintiff
was at least as qualified — not necessarily better
qualified — as the person selected for the
position.).[fn7] Moreover, any narrow reading of Hugh runs
contrary to the generously construed, remedial civil rights
regime. If an employer could, with impunity, appeal to
objective qualifications to defeat any female job
applicant’s challenge to its hire of an objectively
unqualified male in her place, discrimination law would be
reduced to bark with no bite. Title VII demands that
employers apply the same standards for hiring women and
other protected minorities that they apply to all other
applicants.

Like Hugh, we look here to the hiree’s qualifications to
determine whether Slippery Rock created the inference that
something other than the posted objective qualifications
was sufficient. Rippey (the 2003 hiree), Windrader (the
2004 assignee), and Scheidemantle all lacked the objective
qualifications listed in the job posting. If we compare the
subsequent hiring decision to the objective criteria in this
case, we can only conclude that something other than the
job postings’ two or three years of locksmithing experience
was sufficient. The record shows that when Slippery Rock
hired Rippey in 2003, it did so with the understanding that
he had only three months of locksmithing experience on
“light duty” while he was a carpenter and was recovering
from surgery to both hands, App. 242-44, and Scheidemantle
asserts that her training made her at least as qualified as
Rippey. App. Br. at 13-14.[fn8] Similarly, when Slippery
Rock assigned Winrader to the position in 2004, he had no
locksmithing experience according to his resume. Nor had he
completed a course in locksmithing as had
Scheidemantle.[fn9] Applying Hugh, we conclude that, by
departing from the objective requirements in its hiring
decision, Slippery Rock thereby established different
qualifications by which Scheidemantle — as a
protected applicant who suffered an adverse employment
decision — met the qualifications prong and
completed her prima facie case of discrimination. The
District Court thus erred by entering summary judgment in
favor of Slippery Rock.

V. Conclusion

We hold that the District Court erred in determining that
Scheidemantle failed to establish a prima facie case of
employment discrimination against Slippery Rock on the
basis that she failed to meet the job posting’s objective
qualifications. Because Slippery Rock placed similarly
“unqualified” males in the locksmith position, it could no
longer point to the job posting’s objective qualifications
as a valid reason for refusing to promote Scheidemantle. We
thus reverse and remand for further proceedings.[fn10]

[fn1] Slippery Rock argues that Scheidemantle’s invocation
of her license as a measure of her greater qualifications
is a red herring, because Pennsylvania does not require
licenses for locksmithing. Indeed, legislative attempts to
regulate locksmithing by requiring locksmith licenses have
failed four times in Pennsylvania. See Locksmith License
Act, S.R. 286, Sess. of 1997 (Pa. 1997); S.R. 1170, Sess. of
1995 (Pa. 1995); H.R. 1540, Sess. of 1975 (Pa. 1975); H.R.
2127, Sess. of 1974 (Pa. 1974). Nevertheless, a reasonable
juror could view Scheidemantle’s license as relevant to her
qualifications to function competently as a locksmith.

[fn2] Scheidemantle also filed a claim with the Pennsylvania
Human Relations Commission (“PHRC”), which decides
discrimination claims under the Pennsylvania Human
Relations Act. 43 P.S. §§ 951 et seq.
However, pursuant to a “Worksharing Agreement” between the
PHRC and the EEOC under which each entity agrees to yield
investigatory authority to the Commission with which an
action is first filed, and because Scheidemantle already
had submitted the case to the District Court by the time
the PHRC reviewed her petition, the Pennsylvania Commission
declined to consider Scheidemantle’s case.

[fn3] Title VII provides, in pertinent part, that

[i]t shall be an unlawful employment practice for an
employer . . . to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national
origin.

. . .

42 U.S.C. § 2000e-2(a)(1).

[fn4] The relevant provisions state as follows:

The opportunity for an individual to obtain employment
for which he is qualified . . . without discrimination
because of [, inter alia,] race, color, familial status,
religious creed, ancestry, handicap or disability, age,
[or] sex . . . is hereby recognized as and declared to be
a civil right which shall be enforceable as set forth in
this act.

43 P.S. § 953.

It shall be an unlawful discriminatory practice, unless
based upon a bona fide occupational qualification . . .[,]

for any employer because of [, inter alia,] the race,
color, religious creed, ancestry, age, sex, [or] national
origin . . . to refuse to hire or employ or contract with
. . . or to otherwise discriminate against such individual
or independent contractor with respect to compensation,
hire, tenure, terms, conditions or privileges of
employment or contract, if the individual or independent
contractor is the best able and most competent to perform
the services required.

43 P.S. § 955(a).

[fn5] We construe Title VII and the PHRA consistently. See
Atkinson v. LaFayette College, 460 F.3d 447, 454 n. 6 (3d
Cir. 2006); Slagle, 435 F.3d at 262; Kelly v. Drexel Univ.,
94 F.3d 102, 105 (3d Cir. 1996); Gomez v. Allegheny Health
Serv., Inc., 71 F.3d 1079, 1084 (3d Cir. 1995).

[fn6] Because it decided on the basis of the qualification
prong, the Court did not address whether, for her 2004
claim, Scheidemantle met the third prong that an
unprotected employee received more favorable treatment. The
U niversity w ould likely argue that she did not, since it
did not formally fill the position but rather “assigned” it
to another employee. However, we have held that an employee
alleging gender discrimination need not demonstrate that
the employer hired someone from a non-protected class in
her place in order to make out a discrimination claim. See
Pivirotto v. Innovative Sys., 191 F.3d 344, 354 & n. 6 (3d
Cir. 1999) (collecting cases to the same effect from the
Courts of Appeals for the First, Second, Fifth, Sixth,
Seventh, Eighth, and Eleventh Circuits). This prong
therefore cannot be in serious dispute because the
assignment — though short of hiring —
constitutes more favorable treatment, as it is an effective
filling of the position.

[fn7] Additionally, McDonnell Douglas explained that more
favorable treatment to a non-protected applicant includes
seeking someone “of complainant’s qualifications” after
rejecting the complainant. 411 U.S. at 802. That case does
not directly control this one, since the complainant’s
objective qualifications there were not in dispute.

[fn8] But see App. at 87 (Memo accompanying EEOC Dismissal,
dated Dec. 16, 200 3) (“T he successful candidate, Calvin
Rippey, met the required experience and/or training. Rippey
has been part of the carpentry crew for the last twelve
years and has worked, at various times, as a locksmith. A
computer printout for work accomplished by Rippey after
1997, when the Respondent [Slippery Rock] began maintaining
such records for employees, revealed that he had at least
941 hours working as a locksmith. The [University]
determined that Rippey’s hours should be prorated for the
time prior to the establishment of the 1997 computer
records. Thus, based on the number of hours, as compared to
[Scheidemantle’s `locksmith equivalent of 205 . . . hours’
through her coursework], Rippey has substantially more
hours in experience and/or training for the locksmith
position.”). We have no access to the documents referenced
here and they did not figure into the District Court’s
decision. At oral argument, Scheidemantle contested the
EEOC’s determination, asserting Rippey could not
demonstrate that he had the experience the Commission
attributed to him. This question is clearly an issue of
fact best left to a jury to decide.

[fn9] When deposed, Winrader revealed that he had some
experience in locksmithing both inside the University while
a carpenter and outside of the University ten years before
his assignment to fulfill locksmith duties, but had no
locksmithing coursework until November 2004 — which
he began after receiving the locksmithing assignment. But
the information on the prior experience was unknown to
Slippery Rock prior to the assignment, so it cannot be
considered at the prima facie stage or at the pretext stage
once the burden shifts to the University to provide
legitimate reasons for failing to promote Scheidemantle. At
most, Winrader’s claims of prior experience (and thus
greater qualifications than Scheidemantle) at deposition
raise a disputed material issue of fact that should be
tried before a jury.

[fn10] We surmise that Slippery Rock likely will file for
summary judgment on at least the second stage of the
McDonnell Douglas inquiry (other reasons beyond
qualifications offered for not hiring Scheidemantle). If
so, we observe that disputed issues of material fact appear
to linger — specifically, whether Scheidemantle was
more qualified than Rippey or Winrader and whether Slippery
Rock discriminates against women by affording training and
promotion opportunities in locksmithing to men that it
denies to women.

To flesh out the latter observation, the record before us
suggests that the University has a history of failing to
provide women with opportunities for locksmith training. It
appears to assign employees from only the carpenter
department to temporary locksmithing positions, such as the
short-term rotating weekly assignments that Winrader and
“most of the [other] carpenter people” held prior to
Winrader’s April 2004 longer-term assignment. See App. at
233 (deposition of former locksmith Guy Surrena). In
addition, it appears that the carpenter department has not
hired any woman since 1991 and perhaps before. If the
temporary locksmith assignments are the only way of gaining
experience through the University, whether those
assignments are available only to employees in the all male
carpenter department is a relevant issue of fact for
determining the ultimate question of whether discrimination
has occurred. See Ezold, 983 F.2d at 540, 542-43 (noting
that situations where an employer denies women “equal
opportunities to . . . training and support” that prevents
them from gaining exposure to the projects or experience
that would qualify them for promotions can support an
inference of discrimination); cf. Jackson v. University of
Pittsburgh, 826 F.2d 23 0, 235 (3d Cir. 1987), cert. denied,
484 U .S. 1020 (1988) (recognizing that when an employer’s
discrimination prevents blacks from accessing training and
support, it creates a “reasonable inference that [the black
employee] was treated less favorably than his white
colleagues in ways that could explain any `deficiency’ in
performance”). These disputed issues fall within the
province of the finder of fact and cannot be resolved on
summary judgment.