                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-7-2005

Kehres v. Kline
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1037




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Recommended Citation
"Kehres v. Kline" (2005). 2005 Decisions. Paper 1056.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1056


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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                ________________

                                       No. 05-1037
                                    ________________

                                    DEBRA KEHRES,

                                                  Appellant

                                             v.

                     JEFFREY KLINE; TRI-VALLEY PHARMACY
                                ________________

                     On Appeal From the United States District Court
                         For the Eastern District of Pennsylvania
                                (D.C. Civ. No. 03-cv-06108)
                     District Judge: Honorable Mary A. McLaughlin
                                    ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 26, 2005

              Before: RENDELL, AMBRO and FUENTES, Circuit Judges

                                    (Filed June 7, 2005)

                                    ________________

                                        OPINION
                                    ________________

PER CURIAM

       Debra Kehres, a pro se litigant, appeals a judgment entered against her after a

bench trial in the United States District Court for the Eastern District of Pennsylvania on

her claims of employment discrimination. Finding no error, we will affirm.
                                              I.

         Because the parties are familiar with the relevant facts, we need only discuss them

summarily. At all relevant times, Jeffrey Kline owned Tri-Valley Pharmacy (“Tri-

Valley”), which consisted of three pharmacy stores in Pennsylvania. On or about July 2,

2001, Tri-Valley hired Kehres, a 56-year old female, as a pharmacist. Kehres worked

primarily at the Tremont store, but spent time at all three stores. Kehres testified that

about one week after she was hired, she witnessed two other employees engaging in

inappropriate physical contact while working at the same pharmacy as Kehres. On

February 22, 2002, Kline terminated Kehres’ employment, providing two reasons for her

discharge: (1) she failed to follow Tri-Valley’s “give and owe” policy for partially filling

prescriptions when there was an insufficient amount of medication in stock; and (2) she

failed to follow proper procedures related to Pennsylvania’s PACE prescription benefits

program by giving discounted medication to a client who was ineligible for benefits.

After Kehres was fired, Forrest Jewel, a sixty-six or sixty-seven-year old male, replaced

Kehres as the full-time pharmacist at the Tremont Store, and Gene Fisher, a fifty-four or

fifty-five-year old male, replaced Jewel as the full-time pharmacist at another Tri-Valley

store.

         After properly exhausting administrative remedies, Kehres brought this action

alleging sex and age discrimination, in violation of Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. § 2000e et seq, the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621 et seq, and the Pennsylvania Human Relations Act

                                              -2-
(“PHRA”), 43 Pa. Con. Stat. Ann. § 951 et seq.

       The case proceeded to trial on the merits, which was conducted as a Federal Rule

of Civil Procedure 52(a) bench trial on a stipulated documentary record. After the trial,

the District Court found that Kehres’ Title VII claim failed as she did not introduce

sufficient evidence to establish that male employees were treated more favorably than she

was. The court next found that because Kehres failed to introduce evidence of a causal

link between her alleged complaint to Kline about her co-workers behavior at the

pharmacy and her termination, her retaliation claim lacks merit. The District Court found

that Kehres’ ADEA claim lacks merit as her replacement was not sufficiently younger to

create an inference of age discrimination. In addition, the District Court rejected Kehres’

testimony about the “give and owe” policy, and credited Klines’ testimony about this

policy as well as Klines’ testimony about the impact of failing to follow proper

procedures for the PACE prescription benefits program. Thus, the court found that Tri-

Valley articulated two legitimate, nondiscriminatory reasons for terminating Kehres.

Finally, the District Court found that even if Kehres met her initial burden of establishing

a prima facie case of discrimination, she did not persuade the trier of fact that Tri-Valley

intentionally discriminated against her. Accordingly, the District Court entered judgment

in favor of the defendants on all claims. This appeal followed.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. In an appeal from a Rule 52(a)

bench trial, we exercise plenary review over the District Court’s conclusions of law, and

                                             -3-
we review its factual conclusions for clear error. Koshiba v. Merck & Co., 384 F.3d 58,

64 (3d Cir. 2004).

       After a careful review of the record, we discern no error in the District Court’s

judgment. Kehres contends that the District Court erred in finding that she was replaced

by an older pharmacist. See Br. at 2, 6. The record reflects, however, that Jewel, who

was sixty-six or sixty-seven-years old, replaced Kehres as the full-time pharmacist at the

Tremont Store, and Fisher, who was fifty-four or fifty-five years old, replaced Jewel as

the full-time pharmacist at another Tri-Valley store. Even crediting Kehres’ argument

that Fisher, and not Jewel, actually replaced Kehres at the Tremont Store, a one to two-

year age difference is insufficient to create an inference of age discrimination. See Gray

v. York Newspapers, Inc., 957 F.2d 1070, 1087-88 (3d Cir. 1992).

       Kehres also contends that she acted competently and professionally in providing

Tri-Valley’s client with discounted PACE medication, despite the fact that the client was

not eligible for PACE benefits. See Br. at 3-5. This contention, however, militates

against a finding of sex and age discrimination. In fact, it supports Tri-Valley’s argument

that it terminated Kehres for a legitimate, nondiscriminatory reason.

       Kehres further contends that the administrative and state-court proceedings for her

unemployment claim violated due process. See Br. at 7-10. This claim, however, was

not raised in her complaint. Thus, it is not properly before this Court. See Lloyd v.

Hovensa, LLC., 369 F.3d 263, 272-73 (3d Cir. 2004). In any event, we note that after

Kehres filed an unemployment benefits claim, she was given a hearing. At the hearing,

                                            -4-
she was represented by counsel, testified before a referee, and had the opportunity to

present evidence. Kehres’ disagreement with the facts found by the referee does not

render the process inadequate. In addition, the Unemployment Compensation Board of

Review reviewed the referee’s decision. Finally, Kehres’ claims were subsequently

reviewed in state court. Under the circumstances, Kehres was not denied due process.

See Mathews v. Eldridge, 424 U.S. 319 (1976).


                                             III.

       We have fully considered all of the arguments raised by Kehres on appeal, and

find that they lack merit and warrant no further discussion. For the foregoing reasons, we

will affirm the District Court’s judgment.




                                             -5-
