                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-7-2001

Duffy v. Paper Magic Grp Inc
Precedential or Non-Precedential:

Docket 00-2818




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Recommended Citation
"Duffy v. Paper Magic Grp Inc" (2001). 2001 Decisions. Paper 205.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/205


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Filed September 7, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2818

BERNADINE DUFFY

       Appellant,

v.

PAPER MAGIC GROUP, INC.

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

(D.C. Civil No. 98-cv-01518)
District Judge: The Honorable A. Richard Caputo

Argued: June 28, 2001

BEFORE: BECKER, Chief Judge, and NYGAARD,
and REAVLEY* Circuit Judges.

(Filed: September 7, 2001)

       Peter G. Loftus, Esq. (Argued)
       Loftus Law Firm
       Main Street
       P.O. Box V
       Waverly, PA 18471

        Attorney for Appellant
Bernadine Duffy



_________________________________________________________________
* Honorable Thomas M. Reavley, Circuit Judge for the United States
Court of Appeals for the Fifth Circuit, sitting by designation.
       Daniel T. Brier, Esq.
       Donna A. Walsh, Esq. (Argued)
       Myers, Brier & Kelly
       425 Spruce Street
       Suite 200
       Scranton, PA 18503

        Attorney for Appellee
       Paper Magic Group, Inc.

OPINION OF THE COURT

NYGAARD, Circuit Judge:

Bernadine Duffy brought an Age Discrimination in
Employment Act claim, 29 U.S.C. S 621 et seq., against her
former employer, Paper Magic, Inc. Duffy argues that she
was constructively discharged as a result of a continuing
pattern of discrimination by Paper Magic. She appeals from
the District Court's summary judgment in favor of the
defendant. We will affirm.

I.

Duffy began working for Paper Magic in 1986 as a
Customer Service Representative. She was promoted to
Senior Customer Service Representative in January 1987,
and to Assistant Customer Service Manager in July 1989.
As Assistant Customer Service Manager, her
responsibilities included overseeing the order processing
division.

Duffy alleges that in August 1993, she was "passed over"
for a promotion to Manager of the Order Processing
Customer Service Department, for someone younger than
she. A short time thereafter, however, Paper Magic
promoted Duffy to Supervisor of Order Processing in the
Order Processing/Customer Service Department. She
contends that following this promotion, Paper Magic
changed her title back to Assistant Customer Service
Representative, even though her duties remained the same.

                                 2
In September 1994, Paper Magic transferred Deborah
Pica into the Order Processing/Customer Service
Department as Supervisor of Customer Service. Pica was
approximately thirty years old at the time. Duffy alleges
that after Pica arrived, one of her supervisors refused to
cooperate with her, continually harassed her, and refuted
any of her suggestions to improve or correct matters in the
department. In contrast, her supervisor "bent over
backwards" to make Pica's life easier.

In December of 1995, Duffy's title was changed to
Supervisor of Order Processing. At this time, one of her
supervisors explained that she and Pica were getting 3%
raises to take on the added responsibility of new
acquisitions. Duffy contends, however, that her co-workers
informed her that Pica really got a 25% raise. She states
that, the company, to justify this differential, made Pica the
new Customer Service/Order Processing Manager. Duffy
contends that she expressed interest in this position but
her supervisor discouraged her because of her age, and of
the long hours the position would ostensibly require.

In addition, Duffy alleges that she was prevented from
participating in the hiring process for the Order Processing
Department, despite her supervisory position. She claims
that Pica handled all interviews, and rebuffed her input.
She further contends that, unlike the Customer Service
side of the department, Order Processing had to wait
months before getting approval to hire new staff. As a
result, Duffy worked overtime hours, but unlike other
salaried employees, did not receive overtime pay.

Duffy alleges other inequities. She was one of two
supervisors excluded from a company meeting during May
of 1996. She was also excluded from a training seminar for
supervisors. She further maintains that she was the only
supervisor in the company who was given a weekly"report
card" on her job performance by the School Marketing
Department. She was also removed from all committees,
including the computer committee and the total quality
management committee. Additionally, she contends that
she was reprimanded by the Human Relations Director for
failing to participate in company events. According to Duffy,
her nonparticipation resulted in a lack of cooperation from

                               3
others for work-related projects. She states that she
complained about such conduct but nothing changed. As a
result of these working conditions, Duffy's health
deteriorated, requiring that she consult with a physician.

Finally, Duffy maintains that her superiors made
derogatory remarks about her age. Specifically, she alleges
that her supervisor told her that "she was getting older and
wasn't remembering things as she got older." Another
supervisor reminded her that she was getting older and
advised her to look for another job requiring fewer hours.

Generally, Duffy was rated as an average to above
average individual worker. However, her annual
performance evaluations consistently reflected weakness in
the areas of supervisory, managerial, and organizational
skills. For example, in 1996, she was rated "high average"
for her work but "low average, at best" for her supervisory
skills. However, Duffy's salary was not reduced as a result
of her evaluation nor were her responsibilities modified. She
received an increase in salary for each year between 1986
and 1996 and her salary doubled in the ten years that she
was employed by Paper Magic.

On July 24, 1996, Duffy resigned from her position at
Paper Magic. On February 3, 1997, she filed an
administrative charge of discrimination with the Equal
Employment Opportunity Commission. She also filed an
administrative complaint with the Pennsylvania Human
Relations Commission on February 19, 1997. On May 7,
1997, the PHRC formally dismissed Duffy's charge of
discrimination as untimely, and for lacking any basis for
equitable tolling of the time limitations.

Later, Duffy filed this action against Paper Magic, alleging
claims under the Age Discrimination in Employment Act,
29 U.S.C. S 621 et seq., the Americans with Disabilities Act,
42 U.S.C. S 12101 et seq., the Worker Adjustment and
Retraining Notification Act ("WARN"), 29 U.S.C. S 2101 et
seq., the Pennsylvania Human Relations Act, 43 P.S. S 951
et seq., and Pennsylvania common law.

Paper Magic filed a 12(b)(6) motion to dismiss each count
of Duffy's complaint. Duffy voluntarily withdrew her PHRA
and wrongful discharge claims. The District Court then

                                4
partially granted Paper Magic's motion, and dismissed
Duffy's ADA and WARN claims. The District Court
concluded that Duffy failed to state a claim under the ADA
since merely being overweight is not a disabling impairment
under the ADA. The court dismissed Duffy's WARN claim
because she failed to allege a "plant closing" or "mass
layoff " triggering the statute's notice obligation.

Discovery closed and Paper Magic moved for summary
judgment on Duffy's ADEA claim, her only remaining claim.
The District Court concluded that Duffy failed to
demonstrate that she was constructively discharged or
otherwise suffered an adverse employment action within the
purview of the ADEA and entered summary judgment in
favor of Paper Magic.

Duffy filed a notice of appeal, challenging only the entry
of summary judgment in favor of Paper Magic on her claim
of age discrimination. We exercise plenary review the
District Court's decision to grant summary judgment. See
Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d
Cir. 1992).

II.

The ADEA prohibits employers from discriminating
against individuals in hiring, discharge, compensation,
term, conditions, or privileges of employment on the basis
of their age. See 29 U.S.C. S 623(a)(1). Age discrimination
may be established by direct or indirect evidence. See
Connors v. Chrysler Fin. Corp., 160 F.3d 971, 972 (3d Cir.
1998). When evaluating ADEA discrimination claims based
on indirect evidence, a plaintiff may establish a prima facie
case of age discrimination under the ADEA by
demonstrating that she: (1) was a member of a protected
class, i.e., that she was over forty, (2) is qualified for the
position, (3) suffered an adverse employment decision, (4)
and was ultimately replaced by a person sufficiently
younger to permit an inference of age discrimination. See
id. at 973.1 To survive a motion for summary judgment, the
_________________________________________________________________

1. A prima facie case creates an inference of unlawful discrimination. The
burden of production then shifts to the employer who can dispel the

                               5
evidence must be " `sufficient to convince a reasonable
factfinder to find all of the elements of [the] prima facie
case.' " Id. (quoting Keller v. Orix Credit Alliance, Inc., 130
F.3d 1101, 1108 (3d Cir. 1997) (en banc)). Here, the
District Court found that Duffy had failed to show a prima
facie case because she did not produce evidence sufficient
to convince a reasonable fact finder that she had
established any adverse employment action. We agree.

Duffy asserts that she established a prima facie case
because she was constructively discharged, and thus
suffered an adverse employment action. We employ an
objective test to determine whether an employee can
recover on a claim of constructive discharge. See id. at 974.
Specifically, a court must determine "whether a reasonable
jury could find that the [employer] permitted conditions so
unpleasant or difficult that a reasonable person would have
felt compelled to resign." Id. (citations omitted).

Duffy claims that she was constructively discharged
because she experienced a "continuous pattern of
discriminatory treatment" at Paper Magic. As noted earlier,
she contends that: 1) she was not considered for a
promotion to Manager of the Customer Service/Order
Processing Department because of her age; 2) her
department was consistently understaffed and management
delayed in providing needed assistance; 3) her supervisors
made negative remarks about her age; 4) she was excluded
from a training seminar for managers; 5) she was removed
from work-related committees, such as the computer
committee and the total quality management control
committee; 6) she was prevented from participating in the
hiring for the Order Processing Department, even though
she was the Supervisor; 7) other employees and
_________________________________________________________________

inference by articulating a legitimate, nondiscriminatory reason for its
actions. See Connors, 160 F.3d at 974 n.2. If the employer meets this
burden, the employee must then prove by a preponderance of the
evidence that the articulated reasons are a pretext for discrimination.
See id. Where the employee is unable to establish a prima facie case,
however, no inference of discrimination is raised and the employer has
no burden to proffer a reason for any action. Spangle v. Valley Forge
Sewer Auth., 839 F.2d 171, 174 (3d Cir. 1988).

                               6
departments failed to cooperate with her; 8) she was the
only supervisor in the company who was given a weekly
"report card" by the School Marketing Department; 9)
Human Resources reprimanded her for failing to participate
in company events; and 10) other salaried employees were
paid for overtime work, while she was not.

The District Court held that, although the above
allegations indicated that Duffy experienced stress and
discomfort on the job, she did not provide sufficient
evidence that she was constructively discharged or
otherwise suffered an adverse employment action. The
Court reasoned that Duffy's testimony focused almost
entirely on her subjective view that Paper Magic
constructively discharged her. Moreover, the Court noted
that Duffy established none of the situations that we
identified in Clowes v. Allegheny Valley Hospital, 991 F.2d
1159, 1161 (3d Cir. 1993), as suggesting constructive
discharge. Specifically, Paper Magic never threatened to fire
Duffy, encouraged her to resign from her position, or
involuntarily transferred her to a less desirable position.
Moreover, she received satisfactory job evaluations
throughout her employment. And finally, there was no
evidence that Duffy utilized an internal grievance procedure
or requested a transfer within the company.

The District Court correctly recognized that Duffy had
failed to demonstrate any of the factors listed in Clowes.
However, it is important to note that we have never made
the Clowes factors an absolute requirement for recovery.
See id. (noting that the plaintiff "cannot rely on many of the
factors commonly cited by employees who claim to have
been constructively discharged") (emphasis added). The
absence of the factors in Clowes is not necessarily
dispositive. Nonetheless, we agree with the District Court
that Duffy was not constructively discharged.

We have held that constructive discharge may occur
"when the employer is aware that the employee has been
subjected to a continuous pattern of harassment and the
employer does nothing to stop it." Aman v. Cort Furniture
Rental Corp., 85 F.3d 1074, 1084-85 (3d Cir. 1996). In
Aman, the plaintiff was continuously subjected to racially-
based insults and false accusations of favoritism,

                                7
wrongdoing, and incompetence; she was repeatedly
admonished not to touch or steal anything; she was forced
to do menial tasks not assigned to white employees; her co-
workers withheld information and stole documents that she
needed to perform her job; and her employer threatened to
"get rid of her." 85 F.3d at 1077-80. When the employee
retained an attorney and submitted a formal complaint of
discrimination, she was subjected to additional false
accusations of incompetence and the abusive conduct of
her co-workers intensified. See id. at 1085. On these facts,
we held that the employer was not entitled to summary
judgment on a claim of constructive discharge. See id.

Later, in Levandos v. Stern Entertainment, 860 F.2d 1227
(3d Cir. 1988), we held that several incidents of
discriminatory conduct were legally sufficient to raise the
issue of constructive discharge.2 Specifically, the plaintiff-
employee filed an affidavit stating, inter alia , that: she was
the only woman in a management position; she was
excluded from management meetings; the general manager
of the restaurant boasted that the plaintiff `would not be
there long'; management told other employees that the
plaintiff did not fit the mold of a maitre d'hotel because she
was a woman; the owner asked an employee to find a man
to replace the plaintiff; management falsely accused her of
stealing, drinking, and fraternizing with employees; and on
one evening, she discovered wine bottles in her locker to
make it appear as if she were stealing. See id. at 1228.
Additionally, a co-worker submitted an affidavit praising
the plaintiff 's work and reputation and stating that
management disliked women. In a complaint filed with the
EEOC, the plaintiff alleged that she was not permitted to
order supplies although a male manager was able to do so,
and that she was replaced by a male friend of the chef. The
plaintiff resigned, stating that her decision was precipitated
by the accusations of stealing.
_________________________________________________________________

2. We also emphasized that a single, non-trivial incident of
discrimination may be egregious enough to compel a reasonable person
to resign. See Levandos, 860 F.2d at 1232. In such a case, "an
employment discrimination plaintiff may simply face a more difficult
burden of proof in establishing the employer's liability . . . ." Id.

                               8
We reversed the District Court and held that the record
"contain[ed] more than a scrap of evidentiary material, . . .
from which a fact-finder could infer that conditions at the
restaurant were so intolerable that a maitre'd of reasonable
sensitivity would be forced to resign," and that the
plaintiff 's affidavit alone was sufficient to defeat summary
judgment. Id. at 1231 & n.7.

Although the present case is similar to Aman and
Levendos in that it concerns a pattern of conduct rather
than an isolated incident, the situation does not reach the
threshold of "intolerable conditions." Although certainly
stressful and frustrating, the alleged conduct would not
compel a reasonable person to resign. For example, in
contrast to the changing duties of the plaintiffs in Aman,
Duffy's tasks remained the same while she was the
Supervisor of Order Processing. She was never assigned
degrading or menial tasks and she consistently received
pay increases during her employment. Duffy does allege
that her department was understaffed and that
management deliberately delayed providing needed
assistance, thereby making her job more difficult. Duffy's
job, however, did not become impossible as a result of these
staff shortages. Rather, the shortages simply required her
to work longer hours until help arrived. This made her job
more stressful, but not unbearable. See Connors , 160 F.3d
at 975 ("[E]mployees are not guaranteed stress-free
environments and [ ] discrimination laws`cannot be
transformed into a palliative for every workplace grievance,
real or imagined, by the simple expedient of quitting.").
And, as Duffy admits, Paper Magic did eventually provide
assistance to her department.

Like the staff shortages, Duffy's exclusion from
committees, hiring decisions, a single staff meeting, and a
single supervisor seminar would not render a job so
unbearable that she was forced to resign. Although they
may have disappointed and somewhat upset her, such
exclusions did not affect Duffy's ability to do her job as
Supervisor of Office Processing. As such, although Duffy
may have subjectively believed that these circumstances
were too onerous to bear, no reasonable trier of fact could
conclude that exclusion from committee membership or

                               9
lack of hiring authority renders working conditions
objectively intolerable. See Gray, 957 F.2d at 1083 ("The
law does not permit an employee's subjective perceptions to
govern a claim of constructive discharge.").

Moreover, Duffy's weekly "report card" and lack of
overtime pay do not warrant resignation. Although the
"report card" constituted close supervision, Duffy does not
allege that it placed greater requirements on her than
others or imposed unreasonably exacting standards of her
job performance. It merely provided her with feedback and
information. Thus, it does not amount to overzealous
supervision that supports an inference of intolerable
working conditions. With respect to the lack of overtime
pay, it is undisputed that Duffy was an exempt supervisory
employee who was not entitled to overtime pay under
federal law. See 29 U.S.C. S 213(a)(1).

Duffy's attempt to use her physician's opinion that her
job had an adverse affect upon her health to prove that her
working conditions were intolerable also fails. These health
problems support an inference that Duffy's environment
was stressful. However, as noted above, a stressful
environment does not amount to constructive discharge.

Duffy's contentions that her supervisors, because of her
age, made disparaging remarks and failed to give her a
promotion provide some support for her claim. With respect
to the alleged remarks about age, she contends that one of
her supervisors told her that "she was getting older and
wasn't remembering things as she got older." She also
contends that another supervisor reminded her that she
was getting older and suggested that she look for another
job with fewer hours. She alleges that these comments were
made several times over the course of her employment with
Paper Magic.3 Although these comments were
inappropriate, they were not sufficiently derogatory or
offensive to compel a reasonable person to resign.
Additionally, they did not happen on a constant or even
frequent basis. Thus, they did not create intolerable
working conditions.
_________________________________________________________________

3. Duffy also alleges demeaning remarks about her weight but they are
not relevant to her age discrimination claim.

                               10
Regarding her "missed" promotion, Duffy's deposition
asserts that her supervisor told her that Pica was better
suited for the position because she was younger and
therefore could manage the longer hours. She reports that
her supervisor told her that "she was getting older now"
and that she "should just do her regular job." We recognize
that being "passed over" for a promotion based on age
rather than merit would be highly frustrating and upsetting
to a reasonable employee. However, because Duffy has not
produced evidence that she was qualified for the position of
Customer Service/Order Processing Department Manager,
her missed promotion cannot support her constructive
discharge claim. See Spangle, 839 F.2d at 173-74
(dismissing constructive discharge claim where employee's
prima facie case was insufficient because he was not
qualified for supervisory position). Duffy's job appraisals
indicate weakness in the areas of supervisory, managerial,
and organizational skills. For example, Duffy was counseled
on several occasions to improve her supervisory skills. In
her 1994 appraisal, her supervisor wrote: "It is felt that
Bernie at times is part of the problem not the solution.
Bernie must become a supervisor and separate herself from
friends and the company grapevine." Duffy's 1995
performance evaluation included similar comments
concerning her supervisory and management skills:"No
problems with quality of work--only question is quality of
supervision part of job." The 1995 report concludes:
"Bernie, as an individual worker, is high average or above,
but when considering performance as m[anager] of
dep[artment], the rating is low average, at best, and below
average at times when she is upset or in disagreement with
m[anagement]." In 1996, her overall performance was rated
average, but she was again rated "low average, at best" for
her supervisory skills. Without proof of her qualification to
perform the supervisory duties of the management
promotion, the fact that Duffy may reasonably have found
it intolerable that she was "passed over" for her age is not
enough to raise an inference of age discrimination.

Finally, we note that Duffy's own explanation as to why
she left Paper Magic supports our conclusion that she was
not constructively discharged. When pressed to explain why
she elected to resign, Duffy responded that her decision

                               11
was based, in part, on her son's recent graduation from
college and her resultant financial ability to leave. She
stated:

        Well, I thought about it, and I just couldn't take it no
       more. I wasn't getting cooperation from anybody. In my
       opinion, I was just being forced out. Plus, I had my son
       in college and he was on his own, so in that situation
       I could, you know, I could afford to leave. Other years
       I couldn't afford to leave and stuff.

App. at 323. This admission undermines Duffy's claim that
she was constructively discharged.

III.

In sum, we hold that Duffy did not produce evidence
from which a reasonable jury could find an adverse
employment action, which is a prerequisite to a successful
age discrimination claim. Therefore, we will affirm the
District Court's summary judgment.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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