NITZA I. QUIÑONES ALEJANDRO, District Judge.
Plaintiff Brarailty Dowdell ("Plaintiff") filed an employment discrimination action based on race and gender against Defendant Community College of Philadelphia ("Defendant"), his current employer, pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII") and 42 U.S.C. § 1981 ("§ 1981"). Presently before this Court is Defendant's motion for summary judgment to which Plaintiff filed an opposition, Defendant filed a reply, and Plaintiff filed a sur-reply. [ECF 21, 22, 23, 26, respectively]. The issues presented in the motion for summary judgment have been fully briefed by the parties and are ripe for disposition. For the reasons stated herein, the motion for summary judgment is granted.
In his complaint, which was filed on December 24, 2015, Plaintiff alleges that Defendant discriminated against him on the basis of his race and gender when Defendant failed to hire him for a full-time faculty position in Defendant's English Department. [ECF 1].
As is required at the summary judgment stage, this Court will consider all relevant facts in this matter in the light most favorable to the non-moving party, i.e., Plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The facts relevant to Plaintiff's tenure with Defendant are summarized as follows:
Federal Rule of Civil Procedure ("Rule") 56 governs the summary judgment motion practice. Fed. R. Civ. P. 56. Specifically, this rule provides that summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Under Rule 56, the court must view the evidence in the light most favorable to the non-moving party. Galena v. Leone, 638 F.3d 186, 196 (3d Cir. 2011).
Rule 56(c) provides that the movant bears the initial burden of informing the court of the basis for the motion and identifying those portions of the record which the movant "believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden can be met by showing that the nonmoving party has "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case." Id. at 322.
After the moving party has met its initial burden, summary judgment is appropriate if the nonmoving party fails to rebut the moving party's claim by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials" that show a genuine issue of material fact or by "showing that the materials cited do not establish the absence or presence of a genuine dispute." See Rule 56(c)(1)(A-B). The nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party may not rely on "bare assertions, conclusory allegations or suspicions," Fireman's Ins. Co. of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982), nor rest on the allegations in the pleadings. Celotex, 477 U.S. at 324. Rather, the nonmoving party must "go beyond the pleadings" and either by affidavits, depositions, answers to interrogatories, or admissions on file, "designate `specific facts showing that there is a genuine issue for trial.'" Id.
As stated, Plaintiff contends that Defendant unlawfully discriminated against him in violation of Title VII and § 1981 when Defendant denied Plaintiff the English Generalist position because of his race, gender, or the combination of the two.
The elements of a Title VII employment discrimination claim are generally identical to those for a § 1981
Once a plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for the adverse employment action. McDonnell Douglas, 411 U.S. at 802. If the defendant satisfies this phase, the burden shifts back to the plaintiff to prove that the legitimate reason(s) offered by the defendant are merely a pretext for discrimination. Fuentes v. Perskie, 32 F.3d 759, 804-05 (3d Cir. 1994). To make a showing of pretext, the plaintiff must provide evidence "from which a fact-finder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Id. at 764. To meet this burden, the plaintiff must "present evidence contradicting the core facts put forth by the employer, as the legitimate reasons for its decision." Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005). The 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." Fuentes, 32 F.3d at 765. Fuentes further requires the plaintiff to present evidence that suggests that the unlawful discrimination alleged was more likely than not a motivating or determining factor in the defendant's adverse employment actions. That is, the plaintiff must do more than show that the defendant's proffered reasons were wrong or mistaken; the plaintiff must demonstrate that the defendant acted with discriminatory animus. Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 283 (3d Cir. 2001). The plaintiff can meet this burden by pointing to evidence "that the employer has previously discriminated against [him], that the employer has discriminated against other persons within the plaintiff's protected class or within another class, or that the employer has treated more favorably similarly situated persons not within the protected class." Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d Cir. 1998). In situations of similarly situated non-class members, a plaintiff must show with some specificity that the comparators were more favorably treated. Id. at 646.
Plaintiff Fails to Make Prima Facie Case
Defendant argues that Plaintiff has failed to make a prima facie case of either race, gender, or combined race/gender discrimination because he cannot establish that he met the minimum qualifications for the English Generalist position. This Court agrees.
It is undisputed that the educational qualifications requirement for the English Generalist position included a Master's (or possibly Master's of Fine Arts) degree or Ph.D., in either: (1) English; (2) Composition; or (3) a closely-related field. [ECF 21-2 at 2]. It is also undisputed that Plaintiff does not have a Master's or Ph.D. degree in English or Composition. Thus, the central dispute over Plaintiff's qualifications is whether, when viewing the evidence in the light most favorable to him, Plaintiff's Master's of Science in Film degree with a concentration in screenwriting is a degree in a "closely-related field."
The definition of closely-related degrees does not provide a definition or context for the phrase "significant attention." However, since 2005, Defendant has required part-time professors to possess at least eighteen graduate level credits in their discipline. [Tr. of Dr. Gay August 12, 2016 Deposition, [ECF 21-4], at 31-33]. With this criteria in mind, Drs. Gay and Thompson reviewed Plaintiff's academic transcript to determine his qualifications and whether he had, at a minimum, more than eighteen credits of graduate level work in English, literature, developmental English, or reading. (Id. at 54); [Tr. of Dr. Thompson August 26, 2016 Deposition, [ECF 21-5], at 15:3-16]. Ultimately Drs. Gay and Thompson concluded that Plaintiff was not qualified for the position since he did not have more than eighteen credits of graduate level work in English, literature, developmental English, or reading, nor did he have a degree in a closely-related field. [Tr. of Dr. Gay August 12, 2016 Deposition, [ECF 21-4], at 5-6, 39], [Tr. of Dr. Thompson August 26, 2016 Deposition, [ECF 21-5], at 8].
Plaintiff does not appear to take issue with Drs. Gay and Thompson's use of a "more than eighteen credits" threshold to determine whether he had a closely-related degree.
While this Court need not address the remaining McDonnell Douglas factors, in the interest of judicial economy, it will address the additional showing Plaintiff must establish. For clarity of analysis and for this purpose only, this Court will assume that Plaintiff has established, which he has not, that he is qualified for the English Generalist position.
As to the fourth prong to establish a prima facie case under the McDonnell Douglas framework, Plaintiff asserts that the adverse employment action occurred under circumstances that could give rise to an inference of discrimination, and/or that similarly situated persons who are not members of Plaintiff's protected class were treated more favorably. To establish an inference of discrimination, a plaintiff must produce "evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion." Kier v. F. Lackland & Sons, LLC, 72 F.Supp.3d 597, 608 (E.D. Pa. 2014) (quoting Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 355 (3d Cir. 1999)). "An inference of race-based discrimination cannot arise simply from an employee's subjective belief that his or her race somehow influenced the challenged employment action." Id. at 609. One method by which a plaintiff can establish an inference of discrimination is by demonstrating that he was treated less favorably than a similarly situated employee outside of the protected class. Yan Yan v. Fox Chase Cancer Ctr., 2014 WL 4639400, at *8 (E.D. Pa. Sept. 18, 2014).
To support the existence of an inference of discrimination, Plaintiff relies on the fact that Drs. Gay and Thompson are outside his protected group, to wit: Dr. Gay is an African American woman, and, thus, outside Plaintiff's gender, and Dr. Thompson is a Caucasian woman, outside of Plaintiff's gender and race. [Pl.s' Br. at 16]. However, the mere fact that Drs. Gay and Thompson are outside of Plaintiff's race and/or gender class, does not, in itself, establish an inference of discriminatory intent. See Iadimarco, 190 F.3d at 163 ("[T]he race of the selecting officials is not a sufficient circumstance to establish a prima facie case of discrimination by itself. Although the race and/or gender of the individual(s) responsible for a hiring decision is certainly relevant, it is insufficient to establish a prima facie case of discrimination without more.").
Plaintiff further relies on alleged remarks made and actions taken by Drs. Gay and Thompson that Plaintiff contends suggest discriminatory intent. [Pl.s' Br. at 16-17]. Specifically, Plaintiff presents evidence that, in 2007, Dr. Gay, when asked by another African American professor why she did not protect African American faculty, replied that she did not feel the African American faculty backed her. [Pl.s' Br. at 6] (citing Tr. of Ardencie Hall-Karambe April 20, 2016 Deposition [ECF 22-11 at Ex. P] at 92). Plaintiff also presents evidence that, in 2001, Dr. Thompson allegedly smiled at a "racially insensitive joke"
While this Court does not condone racially charged jokes, Plaintiff's argument that these two incidents are sufficient to establish an inference of discrimination is misplaced. Even assuming that these events occurred as Plaintiff describes them,
Plaintiff further cites to statistical evidence of the hiring practices of the English Department in support of the alleged inference of discriminatory intent. Specifically, Plaintiff asserts that as of 2015, the English Department had 124 members, five of which are African American men. [Pl.s' Br. at 8] (citing [ECF 22-13 at Ex. V]). Plaintiff further asserts that from 2006 to 2015, the English Department hired, under Drs. Gay and Thompson, fifty Caucasian individuals (twenty-one men and twenty-nine women), eleven African American individuals (one man and ten women), and two Hispanic individuals (one man and one woman). (Id.). Plaintiff concludes that these statistics show a dearth of hiring of African American men and establishes an inference of discriminatory intent.
Undisputedly, "[s]tatistical evidence of an employer's pattern and practice with respect to minority employment may be relevant" to showing discrimination. See Ezold, 983 F.2d at 542. However, "raw numerical comparisons . . . not accompanied by any analysis of either the qualified applicant pool or the flow of qualified candidates over a relevant time period," is not probative of discrimination. Id. Defendant rebuts Plaintiff's discrimination inference and provides context regarding Plaintiff's statistical arguments, which Plaintiff does not refute in any response. Specifically, Defendant contends that between 2006 and 2015, the English Department received 3,138 applications for English Generalist positions, of which 58 or 1.82% were from African American men.
Plaintiff likewise fails to establish that similarly situated persons who are not members of his protected class were treated more favorably. Yan Yan, 2014 WL 4639400, at *8; Walker, 558 F. App'x at 218. As previously stated, of the thirteen applicants interviewed by Drs. Gay and Thompson for the English Generalist position, only two were not recommended for hire: Plaintiff and Alexandra Fields, neither of whom had a Master's degree in English or a closely-related field. The remaining eleven applicants had either a Master's and/or Ph.D degrees in English or a closely-related field. Thus, the only similarly situated candidate who was not in Plaintiff's protected class, Ms. Fields, was not treated more favorably than he was.
Plaintiff does not dispute that Ms. Fields was not treated more favorably. Instead, he argues that in 2010, Drs. Gay and Thompson hired J.B.,
Defendant contests the mischaracterization of J.B.'s graduate degree and argues that J.B.'s degree is a Master's of Science in Education, with a major in Reading, Writing, and Literacy.
Defendant's argument is supported by the factual record. A review of the supporting documents establishes that J.B. completed more than eighteen graduate credits in English, literature, developmental English, or reading and, thus, his Master's degree is one in a closely related field. Plaintiff's conclusory assertion that because J.B.'s Master's degree is in Education it cannot be considered to be a closely-related degree is entirely unsupported. That J.B.'s Master's degree is in Education does not, in and of itself, determine whether J.B. has a degree in a closely-related field. Instead, it was Drs. Gay and Thompson's review of this transcript and the course description which revealed that the courses paid "significant attention to the English language, its structure, history or the works of art produced in English," the same standard that was applied to Plaintiff and Ms. Fields that contributed to the closely-related field determination. Because the undisputed facts support that J.B. had a Master's degree in a closely-related field, Plaintiff has failed to establish that J.B. was similarly situated to Plaintiff. As a result, no discriminatory intent can be assumed based upon Defendant's hiring of J.B. as an English Generalist, and Plaintiff has failed to establish that any similarly situated individuals who are not part of Plaintiff's protected classes were treated more favorably.
Based on the totality of the evidence considered, Plaintiff has not established the fourth prong to establish a prima facie case under the McDonnell Douglas framework, namely that there is a genuine dispute of material fact such that a reasonable factfinder could conclude that the adverse employment action occurred under circumstances that could give rise to an inference of discrimination
Plaintiff Failed to Show Pretext
Plaintiff has also failed to demonstrate that there is a genuine dispute of material fact as to whether Defendant's proffered legitimate, non-discriminatory reasons for not hiring him as a full-time English Generalist were pretext for discrimination. As noted above, once a plaintiff sets forth a prima facie case of discrimination, the burden shifts to the employer to set forth a legitimate non-discriminatory reason for the challenged adverse employment actions. The burden of an employer to articulate a legitimate non-discriminatory reason for its employment action is "relatively light." Fuentes, 32 F.3d at 763. Indeed, "[t]he employer satisfies its burden of production by introducing evidence which, taken as true, would permit the conclusion that there was a non-discriminatory reason for the unfavorable employment decision." Id. at 763.
Here, Defendant set forth the following legitimate, non-discriminatory reasons for its decision to not hire Plaintiff as a full-time English Generalist; to wit: Plaintiff was not qualified because he lacked the requisite graduate degree or a degree in a closely related field and did not interview well, as he was unable to explain, inter alia, how he would meet the basic standards of a full-time English Generalist. [Def.'s Br. at 24]. Defendant argues that Plaintiff cannot show that the articulated reasons for its decision were pretextual. (Id. at 25-32).
To overcome Defendant's stated reasons for its adverse employment action, Plaintiff must present evidence that could either lead a reasonable factfinder to: (1) disbelieve Defendant's articulated legitimate reasons for not hiring Plaintiff; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of Defendant's actions. Fuentes, 32 F.3d at 764. Plaintiff must point to evidence which would "allow a factfinder reasonably to infer that each of the employer's proffered nondiscriminatory reasons . . . was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext)." Id. (emphasis in original). "While this standard places a difficult burden on the plaintiff, `[i]t arises from an inherent tension between the goal of all discrimination law and our society's commitment to free decision making by the private sector in economic affairs.'" Id. (citations omitted). It is not enough that the employer's decision was wrong or mistaken; rather, a plaintiff must demonstrate that "the employer's articulated reason was . . . so plainly wrong that it cannot have been the employer's real reason." Jones v. Sch. Dist. of Phila., 198 F.3d 403, 413 (3d Cir. 1999) (internal quotations omitted). Thus, the inquiry is not "whether the employer is wise, shrewd, prudent or competent;" but rather, "whether discriminatory animus motivated the employer." Fuentes, 32 F.3d at 765. "[M]ore than a denial of promotion as a result of a dispute over qualifications must be shown to prove pretext." Steele v. Pelmor Labs. Inc., 642 F. App'x 129, 135 (3d Cir. 2016) (quoting Bennun v. Rutgers State Univ., 941 F.2d 154, 170 (3d Cir. 1991)). Instead, a plaintiff must show "that the qualifications of the person actually promoted were so much lower than those of h[is] competitors that a reasonable factfinder could disbelieve the claim that the employer was honestly seeking the best qualified candidate." Id. (quoting Bray v. Marriott Hotels, 110 F.3d 986, 999 (3d Cir. 1997) (Alito, J., dissenting). "In the absence of such a significant degree of difference in qualifications that may arouse a suspicion of discrimination, we defer to the employer's hiring decisions, as Title VII `was not intended to diminish traditional management prerogatives.'" Id. (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981)). Because "the prima facie case and pretext inquiries often overlap," a court may consider the same evidence at both stages of the McDonnell Douglas analysis. Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 370 (3d Cir. 2008).
In his response, Plaintiff does not address Defendant's reasons for not hiring him nor argue the reasons offered were pretextual. Instead, Plaintiff presents evidence that Defendant's decision was made with "discriminatory animus" similar to his argument to support the fourth prong to establish a prima facie case under the McDonnell Douglas framework. Likewise, in his sur-reply, Plaintiff, without specifically referencing pretext, identifies additional evidence he believes supports an inference of discriminatory animus. [ECF 26 at 2-3]. Thus, a fair reading of Plaintiff's response and sur-reply shows that Plaintiff has failed to argue that Defendant's reasons for not hiring him were pretextual. As such, Plaintiff has failed to meet his burden to point to evidence that would "allow a factfinder reasonably to infer that each of the employer's proffered nondiscriminatory reasons . . . was either a post hoc fabrication or otherwise did not actually motivate the employment action. . . ." See Fuentes, 32 F.3d at 764.
Even construing Plaintiff's evidence of discriminatory animus as evidence meant to address Defendant's pretextual arguments, see Doe, 527 F.3d at 370, this evidence is still insufficient to allow a reasonable factfinder to infer that Defendant's reasons were pretextual. As previously discussed, Plaintiff relies on the stray comments and actions of Drs. Gay and Thompson, the statistical evidence of Defendant's hiring practices of African American men as English Generalists, and Defendant's prior advertisement of Plaintiff's accomplishments, as evidence which supports that Defendant's decision was made with discriminatory animus. [Pl.'s Br. at 16-19]. For the same reasons Plaintiff's arguments were rejected when considering them in the context of the prima facie case analysis, these arguments are again rejected. See Ezold, 983 F.2d at 542-43, 545. In Plaintiff's sur-reply he relies on the following additional evidence: (1) Dr. Gay told Dr. Hall-Karambe that Dr. Gay does not have a problem with the "N-word" and that Dr. Gay "has a tendency to ignore when people are being racially negative towards her;"
While Plaintiff acknowledges that these comments are not direct to hiring, he argues that they can support his inference of discrimination claim. (Id.). This argument, however, lacks merit. There is simply no basis to support that Dr. Gay's alleged statements substantiate that she affirmatively sought to discriminate against Plaintiff on account of his race, gender, or both. Likewise, Dr. Thompson's alleged belief that the skin color between a mentor and mentee is insignificant has no bearing on whether Dr. Thompson sought to discriminate against Plaintiff on account of his race, gender, or both. Additionally, Dr. Hall-Karambe's belief that Dr. Thompson discriminates against African Americans is speculative at best. None of these assertions satisfy Plaintiff's "difficult burden" to put forth evidence that would allow a jury to infer that Defendant's articulated reason for not hiring Plaintiff, i.e., his lack of the necessary academic credentials, was merely pretextual. In addition, Plaintiff has not presented any evidence that any of the individuals actually hired for the English Generalist position had qualifications "so much lower than [Plaintiff's] that a reasonable factfinder could disbelieve the claim that [Defendant] was honestly seeking the best qualified candidate." See Steele, 642 F. App'x at 135.
For the foregoing reasons, this Court concludes that Plaintiff has not put forth evidence "demonstrat[ing] such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in Defendant's reasons for not hiring Plaintiff, such that "a reasonable factfinder could rationally find them unworthy of credence and, hence, infer that the [Defendant] did not act for the asserted non-discriminatory reasons." Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 277 (3d Cir. 2010) (quoting Fuentes, 32 F.3d at 764-65). Because Plaintiff has entirely failed to put forth evidence that would allow a factfinder to conclude that Defendant's reasons for not hiring him were pretextual, Defendant is entitled to summary judgment on Plaintiff's race, gender, and intersectional claims under Title VII and his race and gender discrimination claims under § 1981.
Based upon the foregoing reasons, Defendant's motion for summary judgment is granted. An Order consistent with this Memorandum Opinion follows.