Straining v. AT&T Wireless Ser , 144 F. App'x 229 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-18-2005
Straining v. AT&T Wireless Ser
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2688
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2688
LINDA A. STRAINING,
Appellant
v.
AT&T WIRELESS SERVICES, INC.
_______
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1:CV-02-0002)
District Judge: The Honorable Yvette Kane
Submitted Under Third Circuit LAR 34.1(a)
Date: July 14, 2005
Before: ALITO, VAN ANTWERPEN and ALDISERT, Circuit Judges
(Filed July 18, 2005)
OPINION OF THE COURT
ALDISERT, Circuit Judge.
1
The question for decision is whether the United States District Court for the
Middle District of Pennsylvania improperly granted summary judgment in favor of AT&T
Wireless Services (“AWS”) in an employment discrimination action brought by Linda A.
Straining. She sued under the Age Discrimination in Employment Act (“ADEA”), 27
U.S.C. §§ 621-634 (2000), the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§
12101-12117, and the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §§ 951-963
(1991).
The District Court concluded that Straining failed to establish a prima facie case of
age or disability discrimination in her failure to obtain a Customer Service Representative
(“CSR”) or Statistical Administrator (“SA”) position; and alternatively, even if she had
established a prima facie case, she failed to establish pretext. In addition, the Court
granted summary judgment on a retaliation claim because there was no evidence that a
complaint filed by Straining with the Pennsylvania Human Relations Commission
motivated AWS’s decision to cancel her health benefits.
Straining argues that there are genuine issues of material fact that prohibit the
entry of summary judgment. We disagree and will affirm.
I.
Because we write only for the parties who are familiar with the facts and the
proceedings in the District Court, our discussion will be limited.
II.
2
Straining worked as a data entry clerk for Vanguard Cellular One before the
company merged with AWS in May 1999. In June 1999, Mary Lou Colarossi, her
immediate supervisor, informed her that the operations department would be closed as a
result of a merger and explained that current employees should apply for positions with
AWS, the surviving company. Straining was told that the operations department would be
closed by the end of March 2000.
In January 2000, Straining applied with AWS for both CSR and SA positions. She
argues that AWS’s refusal to hire her for each position constituted legal age and disability
discrimination. The company’s response was twofold: (1) Straining did not qualify for
either position; and (2) hiring decisions were made by individuals who were unaware of
her age or her rheumatoid arthritis condition, the alleged disability.
III.
All three of the discrimination statutes under which Straining brings her claim are
analyzed under the McDonnell Douglas framework when there is no direct evidence of
discrimination, as is the situation in this case. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Under this framework, a plaintiff must establish a prima facie case
by showing that: (1) she is a member of a protected class; (2) she was qualified for the
job; (3) the employer refused to hire her despite those qualifications; and (4) the job
remained open and the employer sought applicants with her qualifications. Id. at 802.
Once the plaintiff presents a prima facie case, the burden of production shifts to the
3
employer to come forward with legitimate nondiscriminatory reasons for its actions. Id. If
the employer meets this burden, the burden of production then shifts back to the plaintiff
to show that the employer’s proffered nondiscriminatory reasons are pretextual. Id.IV.
The CSR position of AWS was not the same as its counterpart in Cellular One. To
qualify, an applicant was required to earn passing scores on both the Hogan Personality
Test and the “following directions” test, consisting of 30 multiple choice questions. A raw
score of at least 17 or 21 out of 30 was required, depending on the applicant’s personality
test rating. Based on Straining’s personality test score—and apparently this was
satisfactory—she needed to answer only 17 questions correctly. She accurately answered
only 16.
To support her contention that she in fact scored well, Straining relied on an expert
report from Terry Leslie to argue that there are genuine issues of material fact.
Unfortunately, Leslie examined only a black and white photocopy of her actual test.
Because the copy that was examined was not in color, the expert was unaware that
Straining’s wrong answers were filled in red by the test rater showing the questions she
missed.
Accordingly, Straining did not establish a prima facie case under the McDonnell
Douglas framework because she failed to show that she was qualified for the CSR
position. Even if she could establish a prima facie case, AWS articulates a legitimate,
4
non-discriminatory reason for its decision: It reasonably believed she was not qualified
for the CSR position.
Straining produced no evidence that AWS’s decision not to hire her was based on
age or disability. Although Colarossi was aware of her disability and sympathetic to her
condition, nothing on the record indicates that Richard Fino, the individual who scored
the “following directions” test, acted with animus or even that he was aware of the
disability.
There is no evidence from which a reasonable fact finder could believe that an
invidious discriminatory reason was more likely than not a motivating or determinative
cause of the employer’s action. See Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101,
1108 (3d Cir. 1997).
V.
To prove employment discrimination based on disability, the plaintiff must
demonstrate that she has a disability. Buskirk v. Apollo Metals, 307 F.3d 160, 166 (3d
Cir. 2002); Olson v. GE Astrospace, 101 F.3d 947, 951 (3d Cir. 1996). This Circuit has
held that this requirement necessarily implies that the plaintiff also must demonstrate that
the employer knew of the disability. Jones v. UPS, 214 F.3d 402, 406 (3d Cir. 2000) (“It
is, of course, an axiom of any ADA claim that the plaintiff be disabled and that the
employer be aware of the disability.”); see also Rinehimer v. Cemcolift, Inc., 292 F.3d
375, 380 (3d Cir. 2002).
5
In Olson, 101 F.3d at 954, we explained that knowledge of one party cannot be
imputed to another who is making the hiring decision. Because Straining’s sole allegation
is that Colarossi knew of her disability, and Colarossi was not involved in the hiring
process for the SA position, Straining failed to establish that those involved in the hiring
decision knew of her disability. Thus, Straining failed to make out a necessary element of
her prima facie case.
VI.
To establish retaliation a plaintiff must demonstrate that: (1) she engaged in a
protected activity; (2) the employer took an adverse employment action against her; and
(3) there was a causal connection between her participation in the protected activity and
the adverse employment action. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1299 (3d
Cir. 1999). AWS emphasizes that it notified Straining on April 14, 2000 that her benefits
would be terminated on June 14, 2000 unless she took a severance package. She elected
not to.
Straining did not file a PHRC complaint until June 20, 2000, a week after her
benefits had been terminated. AWS was not served with the complaint until July 27,
2000. It was not possible for the employer’s termination of benefits to have been caused
in any way by Straining’s PHRC complaint because it is undisputed that she had not yet
filed her complaint when the termination of benefits occurred. See Glanzman v. Metro.
Mgmt. Corp., 391 F.3d 506, 516 (3d Cir. 2004) (noting that it is not possible to meet the
6
retaliation standard when the adverse employment action precedes the protected activity).
That she continued to receive insurance benefits after the date she was notified that
they would be terminated, unless she applied for a severance package before that date, is
not material. AWS had decided in April 2000 that her benefits would be terminated on
June 14 and the PHRC complaint was not filed until June 20.
*****
The judgment of the District Court will be affirmed.