                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-19-2004

Lepore v. Lanvision Sys Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3619




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                                            NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
               __________

                   No. 03-3619
                   __________

                 JANE LEPORE
                                   Appellant

                        v.

          LANVISION SYSTEMS, INC.

                   __________

  On Appeal from the United States District Court
     For the Eastern District of Pennsylvania
              (Civ. No. 00-cv-04144)
   District Judge: Honorable Petrese B. Tucker
                    __________

   Submitted Under Third Circuit L.A.R. 34.1(a)
              September 28, 2004
                 ___________

Before: ROTH, BARRY, and GARTH, Circuit Judges

             (Filed: October 19, 2004)
                   __________

                    OPINION
                   __________




                        1
Garth, Circuit Judge:

       Appellant Jane Lepore appeals from the District Court’s grant of summary

judgment in favor of Appellee LanVision Systems, Inc. (“LanVision”) on Lepore’s claims

of sex and/or pregnancy discrimination and retaliation. The District Court had

jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C.

§1291. W e will affirm.

                                              I.

       Because we write solely for the benefit of the parties, we recount the facts and

procedural history only as they are relevant to the following discussion.

       LanVision is a software developer with its headquarters located in Cincinnati,

Ohio. Jane Lepore began working for LanVision at its headquarters on July 8, 1996, as a

Project Manager. In February 1997, LanVision reorganized and Lepore was transferred

to Indirect Sales as an Application Specialist. Several months later, Lepore assisted her

supervisor, Paul Burke, in the search for two additional application specialists to join the

Indirect Sales team . That search resulted in the hiring of Nick Jovings and Mark Zajicek.

       As a result of a second reorganization, in April 1998, the Indirect Sales team was

dissolved and Lepore, Jovings and Zajicek were transferred to Direct Sales. Lepore

retained her position as Application Specialist and began reporting to Larry Smeage, the

National Director of Sales. One month later, Jovings left Direct Sales and was assigned

to Professional Services.



                                              2
       Lepore was pregnant and nearing her due date when she was transferred. Smeage

assigned Lepore to work under Terry Costello, a Direct Sales team leader, for the interim

period before her maternity leave was to commence. Prior to Lepore’s leave, Smeage and

Lepore had a discussion about Lepore’s upcoming childbirth and issues related to

childcare. Smeage conveyed his wife’s difficulty with leaving her child and returning to

work, and in particular their difficulties in finding childcare. According to Smeage,

“basically [he] let her [Lepore] know that as far as childcare, and so on, that she may want

to look into that . . . proactively, since she – you know, part of her job is to be on the road

traveling.” Smeage Dep. at 18. After Lepore told Smeage that she had already arranged

for childcare, Smeage responded “I don’t know, you might change your mind after having

your first baby, you might not want to come back to work.” Id. at 204-205. Lepore

testified that she did not believe Smeage’s raising the childcare issue was discriminatory,

but that she “was dumbfounded that he would discourage [her] . . . .” Id. at 205-206.

       Lepore went on medical leave on May 11, 1998. She gave birth on May 21, 1998,

at which time her maternity leave officially began. During her leave, Lepore moved to

Philadelphia, Pennsylvania with her husband and child. Lepore’s statutorily-mandated

12-week maternity leave expired on July 21, 1998. Lepore informed Terry Costello that

she did not intend to return to work until August 12, 1998, taking a combination of paid

and unpaid leave for the remaining period.

       Adopting a program of company-wide downsizing, between February 1, 1998 and



                                               3
January 31, 1999, LanVision reduced its workforce from 123 to 75 employees through

terminations and resignations. In particular, management decided to keep only one

Application Specialist in the Direct Sales group. Smeage chose to keep Terry Costello,

the team leader. Lepore testified that Costello was the right person to retain because of

her seniority and experience. See Lepore Dep. at 294. On August 6, 1998, Smeage

informed Lepore that she had been terminated. LanVision laid off 12 percent of its

workforce during that time. Zajicek transferred to Professional Services on the West

Coast for one month until he too was laid off in September 1998.

                                             II.

       The District Court granted summary judgment in favor of LanVision. First, it

found that Lepore failed to make out a prima facie case of gender and pregnancy

discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §

2000e et seq., the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.,

and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa.C.S. § 951 et seq., in

connection with her termination by LanVision. The District Court determined that

Lepore was terminated as part of a corporate reorganization that included a reduction in

force, and that no similarly situated individuals outside the protected class were retained.

       Second, the District Court rejected Lepore’s FMLA claim for LanVision’s failure

to reinstate her upon her return from maternity leave, finding that Lepore failed to satisfy

her evidentiary burden of demonstrating either discriminatory intent or retaliation.



                                              4
        We exercise plenary review over the District Court’s grant of summary judgment

and apply the same standard as the District Court, i.e., whether there are any genuine

issues of material fact such that a reasonable jury could return a verdict for the plaintiff.

Fed. R. Civ. P. 56(c); Debiec v. Cabot Corp., 352 F.3d 117, 128 n. 3 (3d Cir. 2003)

(citation omitted). “One of the principal purposes of the summary judgment rule is to

isolate and dispose of factually unsupportable claims or defenses . . . .” Celotex Corp. v.

Catrett, 477 U.S. 317, 323-24 (1986). Applying that standard here, we conclude that the

District Court properly granted summary judgment in favor of LanVision.

A.     Title VII and PHRA

       In order to make out a prima facie case of discrimination in a reduction in force

case arising under Title VII, a plaintiff must show that (1) she is a member of a protected

class, (2) she was qualified for the position in question, (3) she was terminated, and (4)

individuals not within the protected class were retained. In re Carnegie Center Assocs.,

129 F.3d 290, 294-95 (3d Cir. 1997) (citation omitted). Once the prima facie case is

successfully made, the burden of production shifts to the defendant to articulate a

legitimate, non-discriminatory reason for the plaintiff’s termination. See Texas Dep’t of

Community Affairs v. Burdine, 450 U.S. 248, 254 (1981); McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). If the defendant meets this burden, the plaintiff must then

prove that the defendant’s reason was a pretext for a discriminatory motive. Burdine, 450

U.S. at 254. Claims arising under the PHRA are governed by the same legal standard as



                                               5
that applied to Title VII. See Gomez v. Allegheny Health Servs., 71 F.3d 1079, 1083-84

(3d Cir. 1995) (citations omitted).

       The central issue here is whether Lepore satisfied the fourth prong of the prima

facie case, that is, whether she demonstrated that individuals not within the protected

class were retained. In a reduction in force case, the persons outside the protected class

are those employees who are “similarly situated,” that is, they work in the same area in

approximately the same position. See Anderson v. Consolidated Rail Corp., 297 F.3d

242, 249-50 (3d Cir. 2002).

       Lepore points to Jovings and Zajicek as the retained individuals outside the

protected class. She claims that these “[t]wo male peers with less seniority and

experience . . . were retained” while she was terminated. Lepore Br. at 7. We agree with

Lepore that the comparison to Jovings and Zajicek was proper. We conclude, however,

that neither of those individuals was retained and therefore Lepore fails to make a

successful prima facie case.

       As to Jovings, it is undisputed that he transferred out of Direct Sales before Lepore

left for maternity leave and before the August 1998 reduction in force. With respect to

Zajicek, while it is true that he transferred to Professional Services for one month, it is

undisputed that he was laid off in September 1998 as part of the same reduction in force

that resulted in Lepore’s termination. Because Lepore cannot point to any similarly

situated employees outside of the protected class who were retained, the District Court



                                               6
correctly concluded that Lepore failed to establish a prima facie discrimination case.

       In the alternative, Lepore argues that she has produced direct evidence of

discrimination and that therefore we should also analyze her claim under the mixed

motives analysis set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 276 (1989). A

plaintiff attempting to prove discrimination by direct evidence faces a “high hurdle.”

Connors v. Chrysler Financial Corp., 160 F.3d 971, 976 (3d Cir. 1998). Specifically, the

evidence must demonstrate that the “decision makers placed substantial negative reliance

on an illegitimate criterion in reaching their decision.” Id. In putting forth her mixed

motives claim, Lepore relies mainly on her childcare conversation with Smeage, a

conversation she admitted was not discriminatory. Furthermore, Lepore offers no

evidence that “addresses directly the reasons for implementing the [reduction in force].”

Anderson, 297 F.3d at 249. Based on the foregoing, we find Lepore has not cleared the

high evidentiary hurdle of Price Waterhouse. Her mixed motives claim was therefore

properly rejected.

B.     FMLA

       To establish a prima facie case of retaliation under the FMLA, a plaintiff must

show that (1) she took an FMLA leave, (2) she suffered an adverse employment decision,

and (3) the adverse decision was causally related to her leave. Conoshenti v. Public Svce.

Electric & Gas Co., 364 F.3d 135 (3d Cir. 2004). Once a plaintiff makes out a prima

facie case, the usual McDonnell Douglas, see supra, burden shifting framework is



                                             7
implicated. See Weston v. Pennsylvania, 251 F.3d 420, 432 (3d Cir. 2001).

       The District Court found that Lepore successfully made out a prima facie case

under the FMLA. However, in its analysis, it appears to have confused the requirements

for a prima facie retaliation case with those for a prima facie discrimination case.

Consequently, on appeal, the parties argue at length about whether the temporal proximity

of Lepore’s termination to the end of her maternity leave satisfies the causal connection

prong of a prima facie retaliation case. We need not decide that here, however, because

even assuming arguendo that Lepore made out a prima facie retaliation case, summary

judgment was still proper.

       In response to Lepore’s claim of retaliation, LanVision proffers the reduction in

force as its legitimate, non-discriminatory business reason for terminating her. Lepore

offers no evidence that the reduction in force was pretextual. Indeed she offers no

evidence that directly addresses the decision to implement the reduction in force in any

way. Lepore’s only evidence is her conversation with Smeage which, as we noted above,

Lepore herself admitted was not discriminatory. Consequently, Lepore fails to carry her

burden of proof on her FMLA retaliation claim and summary judgment was properly

awarded.1



       1
         Like the District Court below, we need not address LanVision’s contention that the
FMLA is inapplicable under 29 U.S.C. § 2611(2)(B)(ii) (FMLA does not cover an employee who
is employed at a worksite at which the employer employs less than 50 employees if the total
number of employees working within 75 miles of that worksite is less than 50) because Lepore’s
FMLA claim fails on the merits.

                                              8
                                          III.

      LanVision moved to impose costs and sanctions on Lepore, or, in the alternative,

to dismiss Lepore’s appeal, claiming that Lepore engaged in an undue pattern of delay.

We will deny both motions.

                                           IV.

      Accordingly, we will AFFIRM the judgment of the District Court.




                                            9
