Harrison v. Housing Auth Pgh , 111 F. App'x 95 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
9-30-2004
Harrison v. Housing Auth Pgh
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4531
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 03-4531
GEORGE HARRISON, III,
Appellant
v.
HOUSING AUTHORITY OF THE CITY OF
PITTSBURGH
On appeal from the United States District Court
for the Western District of Pennsylvania
(Case No. 01-cv-00748)
District Judge: Hon. Donetta W. Ambrose
Submitted Pursuant to Third Circuit LAR 34.1
September 30, 2004
Before: RENDELL, FUENTES and SMITH, Circuit Judges
(Filed: September 30, 2004)
OPINION OF THE COURT
SMITH, Circuit Judge.
George Harrison appeals from the District Court’s grant of summary judgment in
his racial discrimination claim in favor of the Housing Authority of the City of Pittsburgh
(“Housing Authority”). For the reasons set forth below, we affirm.
I.
Because we write only for the parties, we set forth just a brief recitation of the
facts. Harrison began his career with the Housing Authority in 1978 as a van driver,
receiving promotions to positions such as janitor and laborer until he was promoted to
Field Maintenance Supervisor in September 1996.
In the fall of 1997, Harrison authorized the use of a building coating meant to
protect against graffiti which was more expensive than the coating normally used by the
Housing Authority. On October 20, 1997, Harrison was suspended for five days for
“Failure to obtain authorization to change Contractor’s scope of work resulting in
substantial cost to [the Housing Authority], and Failure to perform job duties.” An
Employee Contact Report memorializing this incident was filed by his supervisor on
October 27, 1997. After a grievance hearing, Guy Pollice, the Housing Authority’s
Director of Maintenance, reduced Harrison’s suspension to three days.
On September 15, 1998, Harrison filed an Employee Contact Report about his
subordinate, David Battles, citing Battles’ failure to clean the area assigned to him.
Harrison knew, however, that Battles had not been at work for a substantial portion of the
previous weeks due to vacation, holiday, suspension and sick leave. Harrison’s “unfair
treatment” of Battles prompted Harrison’s supervisor to file another Employee Contact
report on October 20, 1998. Initially, Harrison was suspended for five days for his
treatment of Battles. After a grievance hearing, the suspension was reduced to a letter
placed in Harrison’s file which indicated that it was placed there “as a warning letter and
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as evidence of [his] difficulty in properly performing the responsibilities of a supervisor.”
Harrison began an extended period of sick leave coincident with these events. On
February 26, 1999, while on sick leave, Harrison filed a charge of racial discrimination
with the Pennsylvania Human Relations Commission (“PHRC”) and the Equal
Employment Opportunity Commission (“EEOC”).
In a General Intake Questionnaire completed on March 1, 1999, Harrison stated
that he “had been verbally informed that [he was] to be demoted.” Thereafter, on March
15, 1999, Harrison informed Darlene Lindner in the Housing Authority’s personnel office
that he had filed the racial discrimination charges. A week later, on March 22, Harrison
returned to work after his prolonged sick leave.
In January 2000, Linder informed Harrison that a layoff was impending and that
because his demotion had resulted in a loss of seniority he should look for other work.
Rather than wait for the layoff, Harrison resigned from his position at the Housing
Authority effective March 10, 2000.
Harrison filed a complaint in the District Court on April 27, 2001, alleging
discrimination on the basis of race in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e-2(a)(1) and the Pennsylvania Human Rights Act
(“PHRA”), 43 Pa. Cons. Stat. § 955 et seq. The District Court construed Harrison’s
claims as alleging racial discrimination, hostile work environment, constructive discharge
and retaliation. The District Court granted the Housing Authority’s motion for summary
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judgment on October 24, 2003.
II.
On appeal, Harrison argues that, although the District Court appropriately
examined his claims of racial discrimination under the burden shifting analysis of
McDonell Douglas Corp. v. Green, 411 U.S. 792 (1973), it failed to consider all of the
evidence in his favor with respect to his burden to establish that the Housing Authority’s
legitimate nondiscriminatory reasons for demoting him were pretextual. We agree with
the District Court that Harrison failed to “1) cast[] sufficient doubt upon each of the
legitimate reasons proffered by the defendant so that a factfinder could reasonably
conclude that each reason was a fabrication; or 2) allow[] the factfinder to infer that
discrimination was more likely than not a motivating or determinative cause of the
adverse employment action,” as required to show that the proffered non-discriminatory
reason offered by the Housing Authority was simply pretext. Fuentes v. Perskie, 32 F.3d
759, 762 (3d Cir. 1994). At best, the evidence proffered by Harrison demonstrates that
the Housing Authority’s decision was a mistake. As we explained in Keller v. Orix
Credit Alliance, “[t]he question is not whether the employer made the best, or even a
sound, business decision; it is whether the real reason is discrimination.” 130 F.3d 1101,
1109 (3d Cir. 1997) (brackets omitted) (citing Carson v. Bethlehem Steel Corp., 82 F.3d
157, 159 (7th Cir. 1996)). We agree with the District Court that Harrison failed to make a
sufficient showing.
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We also agree with the District Court that Harrison failed to meet his burden to
show that he was subjected to a hostile work environment. The incidents identified by
Harrison are the sort of non-serious isolated incidents that the Supreme Court has
cautioned do not amount to “discriminatory changes in the terms and conditions of
employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal
quotations omitted).
In the same way, nothing Harrison alleged could be considered the “intolerable
conditions” necessary to show constructive discharge. Duffy v. Paper Magic Group, Inc.,
265 F.3d 163, 169 (3d Cir. 2001); see also Konstantopolos v. Westvaco Corp., 112 F.3d
710, 718 (3d Cir. 1997) (where a hostile work environment was not shown plaintiff failed
to show a necessary predicate for a constructive discharge claim).
Finally, Harrison challenges the District Court’s determination that his retaliation
claim failed because he did not establish the requisite temporal nexus between filing a
discrimination charge and his demotion. Specifically, Harrison claims that the decision
about his demotion was not final until April 20, 1999, when he sent a letter to Linder
regarding the reduction in his pay which confirmed that he had been demoted. On March
1, 1999, however, Harrison filled out an EEOC General Intake Questionnaire in which he
stated: “I have been verbally informed that I am to be demoted . . . .” The statement
reflects no lack of finality, but instead states that he had already been informed that the
demotion would occur. In his deposition, Harrison explained that he did not inform
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Linder of his discrimination charge until March 15, 1999, more than two weeks after he
knew of the demotion. We agree with the District Court that he has failed to establish a
connection between his protected activity and the employer’s adverse action.
Accordingly, we will affirm the District Court.
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