                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2009

Howard Motley v. Alphonso Jackson
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1712




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                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 08-1712
                                  ___________

                            HOWARD G. MOTLEY,
                                           Appellant

                                        v.

                      SHAUN DONOVAN,* Secretary of
               the Department of Housing and Urban Development

                  *Amended pursuant to Fed. R. App. P. 43(c)(2)
                   ____________________________________

                 On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                      (D.C. Civil Action No. 05-CV-06164)
                  District Judge: Honorable Legrome D. Davis
                  ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                March 26, 2009

              Before: BARRY, SMITH and GARTH, Circuit Judges

                          (Opinion filed: April 6, 2009 )

                                  ___________

                                   OPINION
                                  ___________

PER CURIAM

    Howard Motley appeals from the order of the United States District Court for the
Eastern District of Pennsylvania granting the defendant’s motion for summary judgment

in his civil action. We will affirm.

       Because the parties are familiar with the history and facts of the case, and because

the District Court’s memorandum contains a detailed account, we will recount the

background in summary fashion. Motley, an African American male, had been employed

by the Department of Housing and Urban Development (HUD) since September 1980. In

December 1999, HUD advertised Community Builder positions under two vacancy

announcements: 00-MSH-2000-0002z, which was open to all qualified career and career

conditional federal employees; and 00-DEU-2000-0002z, which was open to all qualified

applicants regardless of federal work experience. Motley applied for Community Builder

vacancies at the GS-14 level1 in Camden, New Jersey; Philadelphia, Pennsylvania; and

Wilmington, Delaware under both announcements. Motley was not selected for any of

the openings. HUD instead selected three white males and one white female to fill the

positions.

       Motley filed a formal complaint with the Equal Employment Opportunity

Commission, alleging discrimination. Motley prevailed after a hearing, and the

Administrative Law Judge’s decision was affirmed on appeal in September 2004.

However, HUD then sought reconsideration, which the Commission granted on August

26, 2005, finding that HUD had articulated a legitimate, non-discriminatory reason for

  1
   The announcements also sought applicants for Community Builders at the GS-13 and
GS-15 level.

                                             2
finding that those who were selected for the positions were superior to Motley. Motley

then filed a complaint in the District Court. HUD filed a motion for summary judgment,

which the District Court granted.2 This timely appeal followed.

       We have jurisdiction over the appeal under 28 U.S.C. § 1291 and exercise plenary

review over the District Court’s decision to grant summary judgment. McGreevey v.

Stoup, 413 F.3d 359, 363 (3d Cir. 2005). Summary judgment is appropriate when the

“pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). A court reviewing a summary

judgment motion must evaluate the evidence in the light most favorable to the nonmoving

party and draw all reasonable inferences in that party’s favor. Brewer v. Quaker State Oil

Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995). However, a party opposing summary

judgment “must present more than just ‘bare assertions, conclusory allegations or

suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv., 409

F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986)).



  2
    Motley was represented by counsel when he filed his complaint. A few months later,
that attorney withdrew an appearance and a second attorney entered an appearance on
behalf of Motley. After HUD filed its motion for summary judgment, the parties
apparently reached a settlement agreement, see dkt. #16, but following a status
conference, the Court ordered that the matter be restored to the active docket, and granted
Motley’s counsel’s motion to withdraw, see dkt. #21. Motley thereafter proceeded pro se
and replied to the summary judgment motion. Motley proceeds pro se on appeal.

                                              3
       As Motley did not submit direct evidence of discriminatory behavior, the District

Court appropriately analyzed his discrimination claims under the familiar burden-shifting

framework established by McDonnell Douglas v. Green, 411 U.S. 792 (1973). Under that

framework, a plaintiff challenging an adverse employment decision has the initial burden

of establishing a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at

802. To set forth a prima facie case of disparate treatment a plaintiff must show that he or

she: 1) belongs to a protected class; 2) was qualified for the employment benefit he

sought, and that 3) nonmembers of the protected class were treated more favorably. See

Id.; see also Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 318-19 (3d Cir.

2000). The burden then shifts to the employer to proffer a legitimate, nondiscriminatory

reason for the decision. McDonnell Douglas, 411 U.S. at 802. Once that burden is met,

the plaintiff must establish by a preponderance of the evidence that the nondiscriminatory

reasons articulated by the employer are pretextual. See Jones v. School Dist. of

Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999). To defeat summary judgment, “the

plaintiff must point to some evidence, direct or circumstantial, from which a factfinder

could reasonably 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.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d

Cir. 1994). More particularly, the plaintiff must demonstrate “such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s



                                             4
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] non-discriminatory reasons.’” Id. at 765 citing Ezold v. Wolf, Block, Schorr &

Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992).

       We conclude that the District Court’s analysis and entry of summary judgment on

Motley’s discrimination claim is fully supported by the record. We agree with the District

Court that even assuming that Motley met his prima facie case of showing discrimination

against him on account of his race or gender, HUD established legitimate,

nondiscriminatory reasons for not selecting Motley. See Fuentes, 32 F.3d at 763 (noting

that the employer’s burden to articulate a legitimate, nondiscriminatory reason is

“relatively light”).

       HUD produced evidence showing that compared with selectees who submitted

recent job performance appraisals,3 Motley had the lowest rating (“fully successful,” as

compared to “highly successful” and “outstanding” for the other candidates).4 HUD also

showed that it used a “Candidate Reference Check Questions and Responses” form

(CRCQR) and that compared with the selectees, Motley was the only candidate who



  3
    Applicants for the “DEU” job listing were not required to submit performance
appraisals, but those who applied under the “MSH” listing were required to submit a
current annual performance appraisal.
  4
    Motley notes that a candidate for a GS-15 position who was ultimately selected also
had a “fully successful” rating, but we do not find this fact material, as Motley was not
applying for a GS-15 position.

                                              5
received “no” responses to the form’s question of whether the evaluator would

recommend the candidate for a Community Builder GS-14 position. We further agree

that Motley did not meet his burden of showing that these reasons were unworthy of

credence. Although Motley disagreed with HUD’s decisions, he did not demonstrate that

the reasons for the agency’s decisions were invidious.

       Motley raises three main arguments. First, he argues that there is a genuine issue

of material fact regarding whether Frank L. Davis was the only one who chose the

candidates to fill the Community Builder positions, as HUD claims. Motley argues that

the decision was supposed to be made by a selection panel, and notes that Davis

acknowledged in his deposition that the selection panels existed at the time the decisions

in question were made. In contrast, HUD’s interrogatory responses indicated that there

“was no selection panel.” Motley thus concludes that the real reasons he was rejected

must have been expressed by the selection panel, and that HUD says Davis was the only

selecting official in order to cover up the true reasons that Motley was not selected. We

agree that there is conflicting information regarding the existence of selection panels.

Compare Federal Defendant’s Response to Plaintiff’s First Request for Interrogatories,

Appellant’s App., Tab 7 (indicating “no selection panel”), with Deposition of Frank

Davis, Appellant’s App., Tab 9 at 29-31 (describing role of selection panel). However,

we do not find that the issue is “material.” Davis indicated in his deposition that he was

the sole decision-maker, and that his selections were simply presented to the selection



                                             6
panel “to make sure . . . that we were following all of the rules and procedures.”

Deposition of Davis at 30. Davis noted that the selection panel did not raise any question

regarding his selections. Id. at 31. Thus, Motley’s conclusion that the selection panel

articulated other reasons for his rejection is totally unsupported.

       Second, Motley argues that because HUD stated in interrogatory responses that

“[t]here were no recommending officials” involved in the decision, it could not have

relied on the CRCQRs, which contained a question asking whether the evaluator would

recommend the candidate for the job. We agree with the District Court that this is a

matter of semantics. In its interrogatory responses, HUD was apparently referring to

formal recommendation letters. The same interrogatory responses make clear that Davis

consulted responses to the CRCQRs in making his decisions.

       Third, Motley argues that Diane Johnson, one of the two people who was asked to

respond to the CRCQRs in his case, falsely represented herself to be his supervisor, so

that she could give him a negative reference and instead advance Christine Soucy, a

woman she supervised, who was eventually selected and about whom she gave positive

answers to the CRCQRs. However, Johnson did not make the decisions regarding the

Community Builder positions; those decisions were made by Davis. Further, persons on

Davis’ staff decided whom to ask for CRCQR responses; Davis had no input into who

would be asked. Thus, there is no inference that Johnson was asked to respond for some

invidious reason.



                                              7
      After thoroughly reviewing the record, we conclude that the District Court

properly determined that Motley did not demonstrate the existence of a genuine issue of

material fact with regard to his discrimination claim. Accordingly, we will affirm the

judgment of the District Court.




                                            8
