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


10-15-2004

Hazen v. Modern Food Ser Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4014




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                        No: 03-4014

                                     DONNA HAZEN,
                                                        Appellant

                                             v.

                MODERN FOOD SERVICES, INC., t/a Smuggler’s Cove,
     RONALD SARAJIAN, Individually and as President of Modern Food Services,
   Inc., t/a Smuggler’s Cove, and MISTY GERRITY, Individually and as a supervisor
                   of Modern Food Services, Inc., t/a Smuggler’s Cove




                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. Civil No. 02-cv-00090)
                        District Judge: Hon. James M. Munley

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 23, 2004

                         Before: McKEE, Circuit Judges,
                 ALDISERT and GREENBERG, Senior Circuit Judges.

                                  (Filed: October 15, 2004)

                                         OPINION

McKEE, Circuit Judge

       Donna Hazen appeals the district court’s grant of summary judgment in favor of

defendants, denying relief on her claim of retaliation for complaints regarding sexual

discrimination. We will affirm.
                                               I.

          Inasmuch as we are writing only for the parties, we need not repeat the factual or

procedural background of this litigation except insofar as may be helpful to our brief

discussion.1

          To establish a prima facie case of retaliation, Hazen must show: (1) protected

employee activity; (2) adverse action by the employer either after or contemporaneous

with the employee’s protected activity; and (3) a causal connection between the protected

activity and her employer’s adverse action. Abramson v. William Patterson College of

New Jersey, 260 F.3d 265, 284 (3d Cir. 2001); Krouse v. American Sterilizer Co., 126

F.3d 494, 499 (3d Cir. 1997); Woodson v. Scott Paper Co., 109 F.3d 913 (3d Cir. 1997).

          Once an employee establishes a prima facie case of retaliation, the employer must

present a legitimate, non-retaliatory reason for its adverse employment action. Woodson,

109 F.3d at 920 n.2. This burden is “relatively light,” and is satisfied if the employer

articulates any legitimate reason for the adverse employment action. The employer need

not prove that the articulated reason actually motivated the adverse employment action.

Id.

          If the employer tenders a legitimate reason for the employment action the




      1
    Our review of the district court’s grant of summary judgment is plenary. Watson v.
Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000). Accordingly, we are required to
apply the same test that the district court should have utilized. Boyle v. County of
Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998).

                                                2
employee must then convince the factfinder both that the employer’s proffered

explanation is false, and that the employer’s action was actually motivated by a retaliatory

animus. Woodson, 109 F.3d at 920 n.2.

       In order to prevail on summary judgment, the employer must show that the trier of

fact could not conclude, as a matter of law, that retaliatory animus had a determinative

effect on the outcome. This may be accomplished by establishing the plaintiff’s inability

to raise a genuine issue of material fact as to any element of the plaintiff’s prima facie

case, or the credibility of any proffered explanation for the employment action. Krouse,

126 F.3d at 501.

                                             II.

       We agree with the district court’s conclusion that Hazen’s conversation with

Torley regarding Sarajian’s alleged statement about the circumstances of Hazen’s transfer

could be construed as a complaint under Title VII. We have previously held that informal

complaints of discrimination that were directed at co-workers rather than management

constitute protected activity for purposes of establishing a prima facie case of retaliation.

Neiderlander v. American Video Glass Co, 80 Fed. Appx. 256, 259 (3d Cir. 2003). Title

VII protects employees from retaliation for the employee’s opposition to any unlawful

employment practice. Id.

       Here, however, the district court concluded that Hazen failed to satisfy the second

requirement of her prima facie case because the record did not establish that her transfer



                                              3
from the bar to the dining area constituted a demotion. We agree. It is undisputed that

the rate of pay for both areas was $2.83 per hour plus tips, and the job responsibilities

were the same. Accordingly, Hazen’s claim of retaliation fails as a matter of law.

                                             III.

       Hazen’s claim that summary judgment is foreclosed by the law of the case doctrine

is frivolous. Under that doctrine, “once an issue has been decided, parties may not

relitigate that issue in the same case.” Ogbudimkpa v. Ashcroft, 342 F.3d 207 n.7 (3d

Cir. 2003)(citing Waldorf v. Shuta, 142 F.3d 601, 616 n.4 (3d Cir. 1998). The

defendants’ motion for judgment on the pleadings and their motion for summary

judgment obviously raised very different issues and required distinct inquiries. In

deciding the motion for judgment on the pleadings, the district court determines from the

pleadings “if it appears to a certainty that no relief could be granted under any set of facts

which could be proved.” Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d

Cir. 1997). However, when deciding a motion for summary judgment, the district court

reviews all discovery and determines whether a genuine issue of material fact exists.

Farrell, 205 F.3d at 278. The standard used to decide these two very different motions is

obviously not the same. In deciding a motion to dismiss on the pleadings, the court

presumes that the plaintiff will be able to prove the allegations set forth in the pleadings,

and then determines if those allegations establish a cause of action. Summary judgment

involves no such presumption.



                                              4
       Hazen failed to establish a prima facie case even though her pleading does state a

cause of action on its face. Therefore, the law of the case doctrine simply did not apply to

the district court’s summary judgment analysis.

                                            IV.

       Based on the foregoing analysis, we will affirm the decision of the district court.




                                             5
