                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-5-2003

Neiderlander v. Amer Video Glass Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1288




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                                                                 NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                      No. 03-1288
                                     ____________

                    CAROLYN NEIDERLANDER,

                                                     Appellant

                                            v.

                    *AMERICAN VIDEO GLASS COMPANY

                          *(Amended in accordance with Clerk's Order dated 02/19/03)
                                     ____________
                     Appeal from the United States District Court
                       For the Western District of Pennsylvania
                                 D.C. No.: 01-cv-02347
                    District Judge: Honorable Donetta W. Ambrose
                                     ____________

                                Argued: October 21, 2003

                Before: ALITO, FUENTES, and ROSENN, Circuit Judges.

                               (Filed: November 5, 2003)

Samuel J. Cordes (Argued)
Ogg, Cordes, Murphy & Ignelzi
245 Fort Pitt Boulevard
Pittsburgh, PA 15222

       Counsel for Appellant

David J. McAllister (Argued)
Reed Smith
435 Sixth Avenue
Pittsburgh, PA 15219

       Counsel for Appellee
                                      ____________

                               OPINION OF THE COURT
                                    ____________

ROSENN, Circuit Judge.

       This appeal arises from a suit brought by Carolyn Neiderlander (“Neiderlander”)

against her former employer, American Video Glass Co. (“AVG”), alleging gender

discrimination and retaliatory discharge in violation of Title VII of the Civil Rights Act of

1964. 42 U.S.C. § 2000e, et seq. The District Court granted AVG’s motion for summary

judgment. We affirm.

                                             I.

       In a careful and exhaustive opinion, Chief Judge Ambrose relied on the following

undisputed facts. Neiderlander was employed by AVG as a glass laboratory technician

from November of 1996 until her termination on June 25, 2001. The events eventually

leading to her termination began in June of 2000, when AVG laid off seven male

employees from its plant. Neiderlander was upset that AVG laid off two of her friends,

but retained co-worker Jean Mayer, whom Neiderlander believed to be less productive. A

month later, Neiderlander allegedly sabotaged one of Mayer’s experiments and confessed

the sabotage to co-worker Melissa Bowlin. Bowlin then told another co-worker, Linda

Richter, of her conversation with Neiderlander. Richter brought the matter to the

attention of the glass laboratory supervisor, Heather Cywinski. Bowlin chose not to tell

Cywinski of the information she allegedly received from Neiderlander, and Neiderlander



                                             2
denied the sabotage. Cywinski handled the situation by conducting meetings with the

involved employees and warning workers in the glass laboratory that sabotage and pranks

would not be tolerated.

       The District Court further noted that in May 2001, AVG reorganized its glass

laboratory and named Bryan Boso, a former manager, as supervisor. This appointment

upset Neiderlander because she had not been considered for the supervisory position. She

claimed that in 1999, Cywinski told her that she was a “chosen replacement” when a

supervisory position became available. However, during the same conversation,

Cywinski also allegedly told Neiderlander that further promotion would be limited

because she suspected that the company did not want women in positions involving

customer contact.

       Neiderlander told Richter and other co-workers about her displeasure with Boso’s

promotion, alleging gender discrimination at AVG. On Friday, June 15, 2001, Boso

noticed an open valve on a mass spectrometer that he had used that morning to run an

experiment. He claimed to be 99 percent certain that he had closed the valve before

leaving for lunch. He also believed that Neiderlander was the only other person in the

laboratory who knew how to operate the spectrometer and the negative effect that

opening the valve would have on the experiment. However, he did not confront

Neiderlander at that time. Three days later, on June 18, Richter complained to Boso that

Neiderlander had been disruptive, and had damaged some of her personal property.

Richter asked Boso to speak with Bowlin about Neiderlander’s past behavior and the



                                            3
allegation of sabotage.

       At this time, Bowlin came forward and informed Boso about Neiderlander’s

confession of sabotage that allegedly occurred back in June 2000. Thereupon, several of

AVG’s managers (two of whom were female), including Cywinski, Boso, the head of

Human Resources, Sally Mueller, and the Glass Operations manager, James Yeager, met

on three occasions to consider Neiderlander’s continued employment status. They

concluded that Neiderlander should be discharged. Neiderlander was given a

memorandum citing two reasons for her discharge: deliberate sabotage of a co-workers

experiment and engagement in “actions that have had a disruptive and negative effect on

other company members and to the efficient operation of [the] plant.

       Neiderlander timely filed charges of discrimination with the Equal Employment

Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations Commission

(“PHRC”). The EEOC granted a Notice of Right to Sue, and Neiderlander timely filed a

complaint in the District Court. Her original complaint contained three claims: (1) failure

to promote due to gender discrimination, (2) termination based on gender discrimination,

and (3) retaliation for claims of gender discrimination. AVG filed a motion for summary

judgment on all claims, which the District Court granted. Neiderlander timely appealed.

                                            II.

       Neiderlander appeals from judgment on two of her original three claims:

termination based on gender discrimination and retaliation for complaints of gender

discrimination. In an appeal of an order of summary judgment, this court’s review is



                                             4
plenary, See Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3d

Cir. 1991), and all evidence must be reviewed in the light most favorable to the non-

moving party. See Weldon v. Kraft, Inc., 896 F.2d 793, 797 (3d Cir. 1990). Summary

judgment may be granted if there is “no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. V.

Catrett, 477 U.S. 317 (1986).

                                             A.

       The District Court found that Neiderlander established a prima facie case of

gender discrimination. In cases where a plaintiff is able to establish a prima facie case

through circumstantial evidence, courts undertake the burden shifting analysis established

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, once a

plaintiff has established a prima facie case, the burden of production switches to the

defendant to provide a legitimate non-discriminatory justification for the employment

decision. See Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir.), cert. denied,

515 U.S. 1159 (1995). If the defendant provides such a justification, then the burden

switches back to the plaintiff to show by a preponderance of the evidence that the

proffered justification is more likely than not a pretext for discrimination. See Fuentes v.

Perskie, 32 F.3d 759, 763 (3d Cir. 1994).

       Neiderlander argues that because there was no factual basis showing that she

sabotaged the experiment, a jury could infer that the justification was pretextual. Yet,

whether the sabotage actually occurred is not the primary consideration in this analysis.



                                             5
When attempting to discredit an employer’s proffered justification, “the plaintiff cannot

simply show that the employer’s decision was wrong or mistaken, since the factual

dispute at issue is whether discriminatory animus motivated the employer, not whether the

employer is wise, shrewd, prudent or competent.” Fuentes, 32 F.3d at 765. As the

District Court noted, even drawing all inferences in Neiderlander’s favor and assuming

the allegation of sabotage was false, there is no evidence showing that AVG knew or

should have known that Bowlin’s allegations were false, or that AVG harbored some

discriminatory animus. Without some evidence that could lead a reasonable fact finder to

conclude that AVG did not actually believe Bowlin’s allegation of sabotage, and instead

acted with discriminatory animus, Neiderlander’s claim cannot succeed.

       Neiderlander also argues that a fact-finder may disbelieve AVG’s justification

because (1) the allegation of sabotage was over a year old, (2) AVG’s investigation into

the sabotage was insufficient, and (3) AVG allegedly changed its justification for the

termination. None of these arguments provide reasonable evidence of pretext. Bowlin

did not come forward with evidence of sabotage until Boso questioned her on the matter

in 2001. AVG acted reasonably on Bowlin’s information at the time she actually came

forward, even though the conduct allegedly occurred a year prior. Similarly, if an

employer’s belief supporting its adverse personnel action is reasonable, the employer is

not required to investigate further. Waters v. Churchill, 511 U.S. 661, 680 (1994). The

District Court found that AVG reasonably believed Bowlin’s statement, given its

consistency with other information and occurrences reported over the previous year.



                                             6
       No evidence was presented to show that AVG had any reason to believe that

Bowlin was not trustworthy. Lastly, statements from AVG employees taken during

depositions do not show that individuals changed their testimony regarding the

justification for Neiderlander’s termination. Sabotage was consistently the primary

justification, and discussion of other negative behavior or disruptions in the glass

laboratory was not inconsistent with AVG’s justification.

       Finally, Neiderlander argues that the statement made by Cywinski in 1999,

regarding AVG’s alleged bias against promoting women to positions with customer

contact, constitutes an atmosphere of discrimination that refutes AVG’s justification for

termination. W hile such a generalized statement may be a relevant consideration, See

Woodson v. Scott Paper Co., 109 F.3d 913, 922 (3d Cir. 1997), it does not necessarily

meet the standard of evidence required to survive summary judgment. As we stated in

Fuentes, the plaintiff must point to some direct or circumstantial evidence allowing a

reasonable factfinder to 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.” 32 F.3d at 764. Cywinski’s

statement, even if it is accepted as an admission that AVG has improperly considered

gender in other promotion decisions, does not reasonably address AVG’s actions in

terminating Neiderlander. The statement does not cast doubt on the decisionmakers’

belief in Bowlin’s statement regarding sabotage, nor does it provide grounds for a

reasonable belief that an invidious discriminatory reason actually motivated the



                                              7
decisionmakers. The District Court, therefore, appropriately entered summary judgment

for the employer on the discriminatory discharge claim.

                                             B.

        Regarding the retaliation claim, we conclude that summary judgment also is

appropriate. We write, however, to clarify the District Court’s finding that there was no

prima facie case of retaliation.

        As a preliminary matter, AVG argued that the retaliation claim should have been

barred because it was not explicitly raised in the EEOC complaint. The District Court

correctly noted that jurisdiction may be assumed over additional charges if they are

“reasonably within the scope of the claimaint’s original charges.” Howze v. Jones &

Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984). This was the case with

Neiderlander’s claim.

        To establish a prima facie case of retaliation, Neiderlander must show that she

engaged in protected activity, that AVG took adverse action against her, and that there is

a causal connection between the protected activity and the adverse action. Goosby v.

Johnson & Johnson Medical, Inc., 228 F.3d 313, 323 (3d Cir. 2000). The District Court

found that Neiderlander failed to establish the first prong of her prima facie case because

her informal complaints of gender discrimination were directed to co-workers and not

management. The Court, therefore, concluded that this did not constitute “protected

activity.” We believe that this interpretation of protected activity is too narrow.

        Title VII provides that it shall be unlawful for an employer to discriminate against



                                              8
an employee because she has “opposed any practice made unlawful employment practice

by this subchapter.” 42 U.S.C. § 2000e-3(a). Caselaw has clarified that opposition to

unlawful employment practices may take many forms, including “complaints to

management, writing critical letters to customers, protesting against discrimination by

industry or by society in general, and expressing support of co-workers who have filed

formal charges.” Sumner v. United States Postal Service, 899 F.2d 203, 209 (3d Cir.

1990). At essence, a plaintiff alleging retaliation must show some form of opposition,

which is communicated to the employer, followed by adverse action by the employer.

The District Court noted that the record was unclear as to whether Richter informed Boso

of Neiderlander’s gender discrimination complaints. Yet, even assuming that the

complaint was communicated to Boso for purposes of summary judgment analysis, the

District Court held that Neiderlander’s informal complaint to co-workers did not

constitute protected activity. As established in Sumner, however, the opposition to

discriminatory practices need not be made directly to managers in order to constitute

protected activity, and Neiderlander’s complaints to her co-workers, assuming they were

communicated to management, would be the type of opposition to discrimination that §

2000e-3(a) seeks to protect.

       The next two elements of the prima facie case are also present. Adverse action

was taken against Neiderlander when she was terminated. The causal connection may be

inferred from the close proximity in time between the protected activity and the adverse

action. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000). Therefore,



                                             9
we must conclude that Neiderlander did meet the low threshold for establishing a prima

facie case of retaliation. See Texas Dept. of Community Affairs v. Burdine, 450 U.S.

248, 253 (stating that the burden of establishing a prima facie case is not onerous).

       Notwithstanding, her case fails because she has not met the requirements of the

McDonnell Douglas burden shifting analysis, which also apply to claims of retaliation.

See Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003). AVG

claimed that the allegation of sabotage was the legitimate justification for the termination,

and Neiderlander could offer no evidence showing that this justification was likely

pretextual. The District Court, therefore, committed no error in entering summary

judgment for the employer on the retaliatory discharge claim.

                                             III.

       Accordingly, the judgment of the District Court is affirmed. Each side shall bear

its own costs.




                                             10
TO THE CLERK:

Please file the foregoing opinion.




                                          /s/ Max Rosenn
                                          Circuit Judge




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