                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-15-2006

Langley v. Merck Co Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3205




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-3205


                                  MARY LANGLEY,

                                                Appellant

                                           v.

                                 MERCK & CO., INC.




                      On Appeal from the United States District
                     Court for the Eastern District of Pennsylvania
                                   (No. 04-cv-3796)
                            District Judge: Juan R. Sanchez


                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 13, 2006

              Before: FISHER, ALDISERT and LOURIE * Circuit Judges

                                 (Filed June 15, 2006)


                             OPINION OF THE COURT


ALDISERT, Circuit Judge.



*
  The Honorable Alan D. Lourie, Circuit Judge for the United States Court of Appeals for
the Federal Circuit, sitting by designation.
      Plaintiff Mary Langley, an African-American female, appeals from a grant of

summary judgment in favor of defendant Merck & Co., Inc. (“Merck”) on her 42 U.S.C. §

1981 employment discrimination suit. Because Langley has not presented sufficient

evidence that her reassignment was an “adverse employment action” or that Merck’s

proffered reasons for the reassignment were pretextual, we will affirm.

                                            I.

      The parties are familiar with the facts and proceedings before the District Court, so

we will only briefly revisit them here. Langley and Warren Moore, a White male, were

both Managers in Merck’s Computer Validation Quality Assurance (“CVQA”) group. In

the Fall of 2003, Merck began a company-wide reorganization called Equinox. As part of

the reorganization, the two CVQA positions occupied by Moore and Langley were to be

consolidated and one of the Managers was to be reassigned to the position of Program

Coordinator. MaryAnne Everett, Merck’s Director of Worldwide Non-Clinical Quality

Assurance, was in charge of the consolidation. She reviewed Moore’s and Langley’s

personnel files and resumes and solicited feedback from three co-workers with whom

both Langley and Moore had good working relationships. Ultimately, Everett chose to

keep Moore as the Manager of the CVQA group and to reassign Langley to the Program

Coordinator position. According to Everett’s deposition testimony, the decision was

based on three considerations: (1) Moore had prior work experience in pharmaceutical

safety assessment laboratories similar to those of CVQA’s customers and Langley did



                                            2
not; (2) all solicited feedback favored Moore over Langley; and (3) Moore’s assessment

scores were higher.

       After complaining to her supervisor about being reassigned to the Program

Coordinator position, Langley commenced the present action against Merck. On March

28, 2005, Merck moved for summary judgment. After reviewing the deposition testimony

and the parties’ submissions, the District Court granted Merck’s motion, concluding that

Langley’s reassignment was not an “adverse employment action” and that she failed to

demonstrate that Merck’s articulated reasons for the reassignment were pretextual. The

Court also denied Langley’s motion to compel discovery responses, which was pending

before it, as moot.

                                             II.

       Our review of the District Court’s grant of summary judgment is plenary. DiFelice

v. Aetna Healthcare, 346 F.3d 442, 445 (3d Cir. 2003). We apply the same test used by

the District Court, i.e., whether, viewing the evidence in the light most favorable to the

non-moving party, the moving party has met its threshold burden of showing the absence

of a genuine issue of material fact. Lawrence v. Nat’l Westminster Bank New Jersey, 98

F.3d 61 (3d Cir. 1996). Essentially, the inquiry is “whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.” Anderson v. Liberty Lobby, 477 U.S. 242,

251-252 (1986).



                                              3
       Langley’s 42 U.S.C. § 1981 racial discrimination claim is governed by the

framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See

Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989) (applying framework to

claims brought under 42 U.S.C. § 1981 ). First, she must establish a prima facie case of

discrimination by showing that: (1) she is a member of a protected class; (2) she

satisfactorily performed the duties required by her position; (3) she suffered an adverse

employment action; and (4) either similarly-situated non-members of the protected class

were treated more favorably or the adverse job action occurred under circumstances that

give rise to an inference of discrimination. Sarullo v. U.S. Postal Serv., 352 F.3d 789,

797 (3d Cir. 2003); McDonnell Douglas, 411 U.S. at 802. The burden then shifts to

Merck to articulate a legitimate, non-discriminatory reason for the challenged action. If

Merck can do this, the burden then shifts back to Langley to demonstrate that the

proffered reason is pretextual.

                                             III.

       Langley contends that at least seven adverse consequences resulted from her

reassignment: (1) her job title changed; (2) she no longer supervises employees; (3) she

now reports to the same position that she previously held; (4) her duties are different; (5)

her office was moved; (6) her new position is a dead-end position with no opportunity for

advancement; and (7) she has less opportunity for financial reward.

       We agree with the District Court that Langley has not demonstrated that she has



                                              4
suffered an adverse employment action. Although Langley asserts that her new title is a

dead-end position that offers less opportunity for financial reward, she not adduced any

evidence supporting this contention. She concedes that her pay and grade level, which

also determine her bonus, did not change as the result of her reassignment and that Merck

continues to pay for her executive MBA courses at the University of Pennsylvania.

Langley’s supervisors testified that her opportunities for advancement remain the same

and that the reassignment did not negatively impact her career opportunities within

Merck.1 Indeed, Everett recently promoted a Program Coordinator to an Associate

Director position, which is a higher position than Manager. Langley also concedes that

no one has indicated that her reputation is tarnished or that they hold her in less regard

because of the reassignment.

       That Langley’s title, office, reporting relationship and responsibilities may have

changed is insufficient to make her reassignment an adverse employment action. An

“adverse employment action” is one that is “‘serious and tangible enough to alter an

employee’s compensation, terms, conditions, or privileges of employment.’” Cardenas v.

Massey, 269 F.3d 251, 263 (3d Cir. 2001) (quoting Robinson v. City of Pittsburgh, 120




1
  Throughout her brief, Langley criticizes the District Court for crediting her supervisors’
testimony while discounting her own testimony. Langley, however, cannot create a
genuine issue of material fact by simply testifying as to her beliefs concerning the
relevant facts – such as that the Program Coordinator position offers less opportunity for
advancement and that Everett has a history of racial discrimination – without showing
that her beliefs are based on either personal knowledge or some other evidence.

                                              5
F.3d 1286, 1300 (3d Cir. 1997).2 Minor actions, such as lateral transfers and changes of

title and reporting relationships, are generally insufficient to constitute adverse

employment actions.3 Compare Flaherty v. Gas Research Inst., 31 F.3d 451, 456 (7th

Cir. 1994) (holding that changes to title and reporting relationship are insufficient to

constitute an adverse employment action under the ADEA where plaintiff retained same

grade level, benefits and level of responsibility) and Galabya v. New York City Bd. of

Educ., 202 F.3d 636, 640 (2d Cir. 2000) (concluding that delay in teacher’s reassignment,

transfer to purportedly inferior facilities, and change in responsibilities from teaching

special education students to teaching mainstream students, did not constitute an adverse

employment action) with de la Cruz v. New York City Human Res. Admin. Dep’t of Soc.



2
  Although Langley’s complaint is grounded in 42 U.S.C. § 1981, both parties rely upon
cases involving Title VII, the ADA and the ADEA in discussing whether Langley has
suffered an adverse employment action, and Langley does not argue that a more relaxed
standard should apply to § 1981 actions. Moreover, we have previously held that the
elements of employment discrimination under Title VII are virtually identical to the
elements of discrimination under § 1981, Schurr v. Resorts International Hotel Inc., 196
F.3d 486, 499 (3d Cir. 1999), the ADA, Lawrence, 98 F.3d at 68, and the ADEA, Miller
v. CIGNA Corp., 47 F.3d 586, 592 (3d Cir. 1995).
3
  Of course, whether an action constitutes an adverse employment action depends on the
attendant circumstances. For example, at least one court of appeals has indicated that
moving a person’s office to an undesirable location could, under certain circumstances,
constitute an adverse employment action. Compare Collins v. State of Illinois, 830 F.2d
692, 703 (7th Cir. 1987) (stating in dictum that relegating an employee to an undesirable
office location would constitute an adverse employment action) with Galabya v. N.Y. City
Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (holding that a transfer to purportedly
inferior facilities is not an adverse employment action). Here, however, the relocation
was merely incident to the reassignment and Langley has not presented any evidence that
the new facilities are demonstrably inferior.

                                               6
Serv., 82 F.3d 16, 21 (2d Cir. 1996) (holding that proof of diminution in prestige and less

opportunity for professional growth, although “quite thin,” was sufficient to show adverse

employment action for purposes of summary judgment) and Torre v. Casio, Inc., 42 F.3d

825, 831 n.7 (3d Cir. 1994) (concluding that plaintiff “created a material fact issue

concerning whether he was transferred . . . to a dead-end job that had been effectively

eliminated before he was transferred to it” even though his pay and benefits remained the

same). Absent some evidence from which a reasonable factfinder could conclude that the

Program Coordinator position is inferior to, rather than merely different from, the

Manager position, Langley has failed to create a genuine issue of material fact as to

whether she suffered an adverse employment action.

                                            IV.

       Even assuming arguendo that Langley has made out a prima facie case of

employment discrimination, we also agree with the District Court that Langley failed to

demonstrate that Merck’s articulated reasons for the reassignment were pretextual.

Langley asserts that there are “15 reasons” that the decision was pretextual. Most of these

reasons, however, challenge the assessment process. For example, Langley contends that

Everett focused on the wrong qualifications, solicited information from the wrong people,

based her decision on highly subjective assessments, and never actually reviewed the

audit reports.

       Langley’s disagreement with the assessment criteria and her belief that she is



                                             7
better qualified for the Manager position is not sufficient to avoid summary judgment. As

we explained in Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994):

       [t]o discredit the employer’s proffered reason . . . 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. Rather, the . . .
       plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies,
       incoherencies, or contradictions in the employers’s proffered legitimate
       reasons for its action that a reasonable factfinder could rationally find them
       “unworthy of credence,” and hence infer “that the employer did not act for [the
       asserted] nondiscriminatory reasons.”

Id. at 765 (citations and emphasis omitted).

       Although an employee may be able to prove pretext by showing that the proffered

reason was so arbitrary or plainly wrong that it could not have been the employer’s real

reason, see Jones v. School Dist. of Philadelphia, 198 F.3d 403, 413 (3d Cir. 1999),

Langley has not done so here. Her criticisms of Merck’s methodology are technical, and

do not reveal “such weaknesses, implausibilities, inconsistencies, incoherencies or

contradictions” in Merck’s proffered explanation that a reasonable factfinder could

conclude that it is “unworthy of credence.” Fuentes, 32 F.3d at 765; see also Simpson v.

Kay Jewelers, 142 F.3d 639, 647 (3d Cir. 1998) (rejecting employee’s argument that the

employer should have used different criteria).

       Langley also contends that Everett has a history of favoring White employees over

African-American employees and that “Everett was not comfortable with Blacks[.]”

(Langley Br. at 28.) Yet Langley offers no evidence, aside from her own testimony, in



                                               8
support of these generalized assertions.4 Indeed, her contentions are belied by the

evidence in the record. (See Everett Dep., app. at 498-499 (discussing several African-

American applicants that she had hired and promoted).) Langley has therefore failed to

provide sufficient evidence from which a reasonable factfinder could conclude that

Merck’s proffered reasons are pretextual.

                                            V.

       We have considered all contentions presented by the parties and conclude that no

further discussion is necessary.5 We will affirm the judgment of the District Court.




4
  The only specific example of discrimination identified by Langley is her contention that
Everett selected Lisa Kruk, a White female, over Meika Pinckney, an African-American
female, for a Manager position. (Langley Br. at 28.) But Everett testified that she did not
select Kruk for the promotion, (Everett Dep., app. at 541), and there is no evidence in the
record contradicting this testimony. It is therefore unclear how Kruk’s promotion
supports Langley’s contention that Everett has a history of discriminating against African-
American employees. Moreover, even if Everett were responsible for the promotion, this
one instance would not be sufficient to create a genuine issue of material fact as to
whether Merck’s articulated reasons for reassigning Langley were pretextual. See
Anderson, 477 U.S. at 252 (“The mere existence of a scintilla of evidence in support of
the [nonmovant’s] position will be insufficient; there must be evidence on which the jury
could reasonably find for the [nonmovant].”).
5
  Langley also contends that the District Court exceeded the permissible bounds of
discretion by denying as moot her motion to compel Merck to answer certain
interrogatories and produce certain documents. We disagree. Even assuming that some
of the requested discovery could have shown that Merck’s proffered reason was
pretextual, none of the requested discovery relates to whether the reassignment was an
adverse employment action. Because we affirm the District Court on both grounds, the
motion to compel is moot.

                                             9
