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


11-3-2003

Hoechstetter v. Pittsburgh
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1854




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Recommended Citation
"Hoechstetter v. Pittsburgh" (2003). 2003 Decisions. Paper 147.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/147


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                                                        NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      ___________

                           No. 03-1854
                           ___________

     DAVID HOECHSTETTER AND MICHAEL PAPARIELLA,

                                          Appellants,

                                 v.

                     CITY OF PITTSBURGH


                   ________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
           WESTERN DISTRICT OF PENNSYLVANIA

          District Court Judge: The Hon. Donald E. Ziegler
                    (D.C. Civil No. 01-cv-01337)
                            ___________

           Submitted Under Third Circuit L.A.R. 34.1(a)
                       October 21, 2003

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

                (Opinion Filed: November 3, 2003)
                  ________________________

                    OPINION OF THE COURT
                   ________________________
FUENTES, Circuit Judge:

       Appellants Hoechstetter and Papariella are two white males who were rejected for

admission into the Pittsburgh police force in 2001. Appellants filed suit for Title VII

violations, alleging that Pittsburgh hired less qualified women and minorities. The District

Court granted summary judgment in favor of Pittsburgh, holding that even if Appellants had

made out a prima facie case of discrimination (an issue that the District Court did not rule

on), Appellants had failed to provide evidence rebutting Pittsburgh’s numerous proffered

non-discriminatory reasons for passing over Appellants. Appellants argue on appeal that

Pittsburgh never offered any definite reason why it refused to hire Appellants, but instead

only offered “likely considerations” for failing to hire them. Similarly, Appellants argue that

even if the “likely considerations” are accepted as proffered reasons, the fact that Pittsburgh

has given different reasons for the failures to hire at different times undercuts the credibility

of all of the proffered reasons. Because we find that Pittsburgh gave credible and coherent

non-discriminatory reasons for its refusal to hire Appellants, we affirm the District Court’s

decision.

       Pittsburgh tests applicants for its police force and then ranks the applicants by their

test results, after a background check, on a certification for appointment list. At that point,

the police department’s selection committee, headed by Police Chief Robert McNeilly, picks

one of the top three candidates to extend a conditional offer of employment. Once the

decision is made, the committee chooses their next offer from among the fourth name on the



                                               -2-
certification list and the two bypassed candidates from the first offer decision. Once that

decision is made, the fifth name is added to the two most recent bypassed candidates, and so

on until the class is filled. If a candidate has been bypassed three times, however, his or her

name is removed completely from the certification list and replaced with the next-highest

name on the list. Appellants were both highly ranked (Hoechstetter was 48 th and Papariella

was 215 th on a list of 406) on certification lists for 1999 and 2000, but were bypassed three

times and removed from the list, after which lower-ranked women and minorities were hired

for some of the remaining spots. Appellants sued Pittsburgh under Title VII and 42 U.S.C.

§ 1983, asserting gender and race discrimination.

       The District Court correctly recognized that both Appellants’ Title VII and § 1983

claims are evaluated under the familiar burden-shifting test set forth by McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), and its progeny. Accord Jones v. School Dist. of

Philadelphia, 198 F.3d 403, 410 (3 rd Cir. 1999) (Title VII claims); Stewart v. Rutgers, 120

F.3d 426, 432 (3 rd Cir. 1997) (§ 1983 claims). Basically, the plaintiff must first come

forward with a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802;

accord Jones, 198 F.3d at 410 (3 rd Cir. 1999) (discrimination claims); Woodson v. Scott

Paper Co., 109 F.3d 913, 920, n. 2 (3 rd Cir. 1997) (retaliation claims). If she can successfully

do so, the burden shifts to the employer “to articulate some legitimate, nondiscriminatory

reason” for the termination. Id. Finally, if such a reason has been presented, the plaintiff

must show that the employer’s proffered reasons were mere pretext, and that the termination



                                               -3-
was truly motivated by discriminatory animus. Id. The District Court did not reach the issue

of whether Appellants had presented a prima facie case; rather, the District Court held that

even if such a case had been presented, Appellants had not provided any evidence to

undercut Pittsburgh’s legitimate nondiscriminatory reasons for passing over Appellants.

Specifically, the District Court noted that Hoechstetter’s rejection was largely based on past

marijuana use, Papariella’s on an abysmal credit rating indicating a poor sense of

responsibility.

       Appellants advance two arguments here to refute the District Court’s conclusion, but

neither is persuasive. First, Appellants argue that Pittsburgh never actually articulated

nondiscriminatory reasons for rejecting them, but only advanced vague “likely” reasons for

the rejections in their answers to interrogatories.

       The most likely considerations regarding Hoechstetter related but were not
       limited to speeding violations, accidents, drug use, and a bad job reference for
       1998 job that he left. This answer may be supplemented upon receipt of
       additional information.

       ...

       The most likely considerations regarding Papariella related but were not
       limited to credit history, debt, lawsuit, and insurance fraud incident in high
       school. This answer may be supplemented upon receipt of additional
       information.

App. at 304, 307. We agree with the District Court that these answers did in fact effectively

state reasons for refusing to hire Appellants. Although Pittsburgh’s use of the term “likely”

in response to the interrogatories is inartful, we are satisfied under the circumstances that



                                              -4-
Pittsburgh fulfilled its burden of coming forward with evidence of its real reasons for passing

over Appellants. As mentioned, the records of both Appellants contain factors that, if not

absolutely disqualifying for employment as a police officer, certainly put Appellants at a

severe competitive disadvantage. For the future, if Pittsburgh wishes to maintain its current

hiring system, it should take steps to memorialize its actual reasons for competitive hiring

decisions. Under the particular circumstances here, however, we are not persuaded to

reverse.

       Appellants’ second argument is that Pittsburgh has proffered shifting and inconsistent

nondiscriminatory reasons for the failures to hire Appellants. Specifically, Appellants

observe that McNeilly’s deposition omitted any reference to Hoechstetter’s speeding

violations or accidents, but added a reference to a poor job history for both Appellants. App.

at 216-222. It is true that in extreme enough cases, an employer’s inconsistencies in its

proffered reasons for discharge can constitute evidence of pretext. See Abramson v. William

Paterson Coll. of N.J., 260 F.3d 265, 284 (3 rd Cir. 2001) (employer offered new and unrelated

reasons for termination at latter stages of litigation); Smith v. Borough of Wilkinsburg, 147

F.3d 272, 281 (3 rd Cir. 1998) (employer gave entirely unrelated rationales for termination to

EEOC and trial court); EEOC v. L.B. Foster Co., 123 F.3d 746, 753 (3 rd Cir. 1997)

(deposition and trial rationales were unrelated). In all of these cases, pretext was evidenced

by the decision-maker’s having totally different and unrelated rationales for the employment




                                              -5-
decision at different stages of the litigation.1

       Here, however, no such dramatic shift of reasons took place. McNeilly’s deposition

makes clear that the biggest factor underlying Hoechstetter’s rejection was his marijuana use,

which is completely consistent with Pittsburgh’s interrogatory answers. App. at 217-219.

Similarly, , McNeilly referred to Papariella’s poor job history only as part of his broader

testimony about Papariella’s financial irresponsibility, the centerpiece of which was his poor

credit history. App. at 220-22. Simply put, there was no contradiction or inconsistency

between the interrogatory answers and McNeilly’s testimony.            Neither did Pittsburgh

exchange one set of reasons for a wholly unrelated set, as both the interrogatory answers and

the McNeilly testimony depict a consistent picture behind Appellants’ rejections:

Hoechstetter and Papariella were refused employment after comprehensive reviews of their

applications, based largely on the former’s marijuana use and the latter’s poor credit history

and financial irresponsibility. In short, there is simply no evidence of any inconsistencies

that would lead a reasonable factfinder to conclude that Pittsburgh’s reasons for refusing to

hire Appellants were pretextual. Accordingly, we affirm the District Court’s judgment.




       1
         Appellants cite to Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000), and
Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3rd Cir. 1987), but contrary to Appellants’
characterizations, neither case rested its holding on inconsistencies between the employer’s
purported reasons for discharge.

                                               -6-
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.




                                           /s/ Julio M. Fuentes
                                               Circuit Judge




                                     -7-
