                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-6-2007

Lula v. Network Appliance
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4215




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"Lula v. Network Appliance" (2007). 2007 Decisions. Paper 259.
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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-4215


                                MARY LOUISE LULA,
                                         Appellant

                                           v.

                               NETWORK APPLIANCE


                      Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. Civil No. 05-cv-01145)
                      District Judge: Honorable David S. Cercone


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 2, 2007

              Before: RENDELL, WEIS and NYGAARD, Circuit Judges.

                              (Filed: November 6, 2007)


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

                                           I.

       Mary Louise Lula appeals from an order entered by the District Court granting

defendant Network Appliance, Inc.’s (“NetApp”) motion to dismiss for failure to state a
claim pursuant to Fed. R. Civ. Pro. 12(b)(6). Appellant Mary Lula alleged in her

complaint that NetApp violated Title VII of the Civil Rights Act of 1991 (“Title VII”), 42

U.S.C. § 2000e-1 et seq., the Age Discrimination in Employment Act (“ADEA”) of 1967,

29 U.S.C. § 621, et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa.

Stat. § 951 et seq. Lula argues on appeal that she properly complied with Fed. R. Civ.

Pro. 8(a) and that the District Court erred when granting NetApp’s motion to dismiss.

For the reasons that follow, we will affirm the District Court’s order of dismissal.

                                             II.

       When reviewing a motion to dismiss under Fed. R. Civ. Pro. 12(b)(6), a court must

“accept as true all allegations in the complaint and all reasonable inferences that can be

drawn therefrom, and view them in the light most favorable to the non-moving party.”

Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). Lula alleged the

following pertinent facts in her complaint. In May 2004, Lula was offered a employment

with NetApp as either a Sales Representative or Senior Sales Representative. Lula

believed that the restrictions and conditions imposed on the offer of employment were too

burdensome and declined to accept the job offer. Lula also alleged that these restrictions

were not placed on a different position within the company and were therefore

discriminatory because this other position was occupied by a young male. Lula did not

allege that these restrictions were not imposed on other candidates who applied for the

position that she was offered. In October 2004, NetApp once again requested that Lula

submit her resume for consideration of a separate opening for Sales Representative. The

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position was immediately deactivated. Lula alleged that NetApp deactivated this

additional position because, although she was qualified, she was unacceptable to NetApp

because of her age, gender, and a prior action she had filed to enforce her civil rights.

                                              III.

       Lula presents two issues on appeal. First, she asserts that a cognizable legal claim

exists under Title VII, the ADEA, or the PHRA when a potential employee rejects a job

offer because that employee believes the terms of the employment are discriminatory.

We disagree. In order to demonstrate a prima facie case of discrimination under Title

VII, the ADEA, or the PHRA, an individual must show that he or she: (1) is a member of

a protected class; (2) was qualified for the position sought; (3) was subject to an adverse

employment action despite being qualified; and, (4) under circumstances that raise an

inference of discriminatory action, the employer continued to seek out individuals with

qualifications similar to plaintiff to fill the position. Sarullo v. U.S. Postal Service, 352

F.3d 789, 797 (3d Cir. 2003). Here, Lula was not subject to an adverse employment

action. This Court declines to extend the definition of an adverse employment action to

include job offers. There is no cognizable cause of action based on a job applicant’s

rejection of a job offer she finds undesirable.

       Lula’s second argument on appeal is that a legal cognizable claim exists for failure

to hire under Title VII, the ADEA, or the PHRA when a potential employee was not hired

because the company “deactivated” that position and did not fill it. Again, we disagree.



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The Supreme Court addressed employment discrimination in a hiring situation in

McDonnell Douglas Corp. V. Green, 411 U.S. 792 (1973), and held that, in order for such

an action to be valid, a plaintiff who is qualified for the position must be rejected for the

position, and thereafter the position must remain open. Id. at 802. Here, as Lula’s

complaint specifically alleges the position did not remain open and was immediately

deactivated. Accordingly, under McDonnell, no cause of action exists.

       Because no set of facts would allow Lula to prove a prima facie case of

discrimination, the District Court correctly granted NetApp’s motion to dismiss. See

Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

                                             IV.

       For the foregoing reasons, we will affirm District Court’s order.




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