Spence v. Philadelphia , 147 F. App'x 289 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
9-13-2005
Spence v. Philadelphia
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3334
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3334
THERMON E. SPENCE, JR.
Appellant
v.
CITY OF PHILADELPHIA
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 03-cv-03051)
District Judge: Hon. Thomas N. O’Neill, Jr.
Submitted Under Third Circuit LAR 34.1(a)
September 12, 2005
Before: SLOVITER, BARRY and SMITH, Circuit Judges
(Filed September 13, 2005)
OPINION
SLOVITER, Circuit Judge.
Plaintiff Thermon Spence, Jr. appeals from the District Court’s order granting
summary judgment to Defendant City of Philadelphia (“City”) and denying Spence’s
motion for summary judgment. We affirm the District Court’s grant of summary
judgment, although we do so on grounds that differ from the grounds upon which the
District Court relied.
I.
Because the parties are familiar with the case, we will cite only the pertinent facts.
Spence, an African American male, began working for the City of Philadelphia as a semi-
skilled laborer in April 1996. In 2001, Spence began the process to become eligible for a
promotion to the position of Painter 1. That process, administered by the City’s Personnel
Department, consisted of three parts: meeting the minimum training and experience
requirements, passing a written examination, and satisfying a performance evaluation.
Candidates who met the minimum training and experience requirements were given the
written examination on March 14, 2001. Those who passed were then eligible to proceed
to the performance evaluation phase, which consisted of a task simulation evaluation.
Candidates who satisfied the performance evaluation were then ranked on an eligibility
list for promotion to Painter 1. Rank was based 90% on test scores and 10% on seniority.
Spence was one of twenty-seven applicants who took the written examination. Of
these applicants, fourteen were African American, twelve were Caucasian, and one was
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Hispanic. Fifteen of these applicants, including Spence, passed the written examination
and then attempted the performance evaluation. Of these fifteen applicants, three were
African American, eleven were Caucasian, and one was Hispanic. Four of the fifteen
applicants, Spence, another African American applicant, and two Caucasian applicants,
failed the performance evaluation. The eleven applicants who passed the performance
evaluation were ranked on the eligibility list. Based on this ranking, two Caucasian
candidates were promoted to the position of Painter 1 before the list expired.
In November 2003, the City conducted another promotional examination process.
Spence testified that he was unaware of the 2003 process and did not participate in it. Six
applicants participated in this process: two African Americans, three Caucasians, and one
Hispanic. One African American applicant failed the written examination, and the other
African American applicant failed the performance evaluation. Because two of the three
Caucasians who passed the written examination declined to take the performance test,
only one Caucasian candidate and one Hispanic candidate were eligible for promotion at
the conclusion of the 2003 promotional process.
On May 12, 2003, Spence filed suit in the District Court against the City of
Philadelphia, alleging denial of a promotion on the basis of race in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Pennsylvania Human
Relations Act, 43 P.S. 951, et seq. (PHRA). App. at 3-4, 22. The next month, he
amended his complaint to add a claim alleging unfair retaliation for reporting an incident
3
of same-sex sexual harassment. After discovery, Spence moved for partial summary
judgment, alleging, for the first time, that “defendant’s promotional examination process
for Painter 1 had a disparate impact on African Americans under the four-fifths rule of 29
C.F.R. § 1607.4(D) (EEOC Uniform Guidelines).” App. at 14.1 Spence presented
statistical evidence showing that the rate at which African Americans were promoted was
less than four-fifths of the rate at which Caucasians were promoted. The City moved for
summary judgment on all counts. Spence did not oppose the City’s motion with respect
to his retaliation claim, but opposed the City’s motion on both his disparate treatment and
disparate impact claims. On July 1, the District Court entered summary judgment in favor
of the City on all claims.
The District Court held that Spence’s claim for disparate treatment failed because
Spence could not establish a prima facie case of race discrimination, stating “there is
simply no evidence that similarly situated nonmembers of his protected class were treated
more favorably during the 2001 performance examination.” App. at 8-9. The District
1
1 The Guideline provides, inter alia,
2
3 A selection rate for any race, sex, or ethnic group
4 which is less than four-fifths (4/5) (or eighty percent)
5 of the rate for the group with the highest rate will
6 generally be regarded by the Federal enforcement
7 agencies as evidence of adverse impact, while a
8 greater than four-fifths rate will generally not be
9 regarded by Federal enforcement agencies as
10 evidence of adverse impact.
4
Court also held that Spence had failed to establish a prima facie case of disparate impact
because he had failed to offer sufficient “evidence of a significantly discriminatory hiring
pattern.” App. at 16. Because Spence’s statistical evidence was based on a small sample
size of only twenty-seven applicants, and Spence failed to offer expert testimony that
suggested that the hiring disparity was statistically significant, the District Court
concluded that the “statistical universe . . . [was] too small to be probative.” App. at 19.
The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the District Court’s
decision to grant summary judgment to the City. Bonneville Int’l Corp. v. Peters, 347
F.3d 485 (3d Cir. 2003).
II.
On appeal, Spence contests only the District Court’s dismissal of his disparate
impact claim. He argues that the District Court erroneously placed on him the burden of
proving that the evidence was statistically significant. He contends that even in the
absence of evidence proving that the sample is too small to be a statistically significant
demonstration of disparate impact, it is sufficient to establish a prima facie case. Spence
further argues that the District Court erred in finding as a matter of law that the sample
size was too small to demonstrate disparate impact.
In response, the City argues that summary judgment on the disparate impact claim
was appropriate because Spence failed to plead that claim in a timely manner, and thus
5
waived it.
III.
In ruling on the summary judgment motion, the District Court noted that Spence
raised his disparate impact claim at a late stage in the proceedings. The Court stated,
“[d]espite not having raised the [disparate impact] issue” in his EEOC Complaint or First
Amended Complaint, plaintiff “allege[d] in his motion for partial summary judgment that
defendant’s promotional examination process for Painter 1 had a disparate impact on
African American applicants under the four-fifths rule.” App. at 14. The Court
nevertheless addressed the merits of Spence’s disparate impact claim.
Under this court’s precedent, a claim that has not been timely raised is waived.
We applied that rule in Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 641-42 (3d
Cir. 1993), where we upheld the district court’s rejection of a disparate impact claim that
had been raised after the close of discovery. The district court in Josey found that “the
new allegations would prejudice [the defendant] because [the defendant] would have
different burdens and defenses from those under the disparate treatment claim.” Id. at
642. We agreed, and noted that the plaintiff “should have moved to amend his pleadings
during discovery upon his determination that he had a disparate impact claim.” Id. See
also Armbruster v. Unisys Corp., No. 91-5948, 1996 WL 55659, at *3 (E.D. Pa. Feb. 7,
1996) (dismissing plaintiff’s disparate impact claim because it was not mentioned in the
allegations stated in the complaint.); Verney v. Dodaro, 872 F.Supp. 188, 193 (M.D. Pa.
6
1995) (holding that plaintiff’s failure to assert disparate impact claim in her complaint
precluded later assertion of that claim); Rush v. Scott Paper Co., No. 93-5973, 1995 WL
46703, at *3 (E.D. Pa. Feb. 1, 1995) (holding that plaintiff could “not proceed under a
disparate impact theory of liability, as he failed to raise this theory until after discovery
and ha[d] never raised this theory in a complaint”); see also Coleman v. Quaker Oats Co.,
232 F.3d 1271, 1292 (9th Cir. 2000) (noting that “where a plaintiff sets forth only the
disparate treatment theory in his pleadings and does not move to amend his complaint
until summary judgment following the close of discovery, the plaintiff is barred from
proceeding on the disparate impact theory”).
Here, Spence failed to raise the issue of disparate impact in his complaint.
Moreover, he failed to file a motion for leave to amend his complaint before the close of
discovery. In fact, he did not assert a disparate impact claim until he moved for partial
summary judgment on April 14, 2004. Discovery had been closed as of March 16, 2004.
Because Spence never pled his disparate impact claim, the City had no notice of the issue.
As the Josey court recognized, the trial preparation needed to defend against a disparate
impact claim is distinct from that necessary to defend against a disparate treatment claim.
996 F.2d at 642. Therefore, allowing Spence to add a new theory of liability at summary
judgment would have impermissibly prejudiced the City because the City faced different
burdens and defenses under this second theory of liability. It follows that Spence was
precluded from raising the disparate impact claim for the first time at the summary
7
judgment phase. Therefore, summary judgment for the City was appropriate.
IV.
For the reasons state above, we will affirm the District Court’s grant of summary
judgment.