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


12-22-2003

McGorrian v. EMSA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1132




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"McGorrian v. EMSA" (2003). 2003 Decisions. Paper 36.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/36


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ___________

                     No. 03-1132
                     ___________

               GRACE MCGORRIAN,

                                    Appellant

                            v.

                       E.M.S.A.




                     ___________

    On Appeal from the United States District Court
       for the Western District of Pennsylvania

 District Court Judge: The Honorable Robert J. Cindrich
             (D.C. Civil No. 00-CV-01314)
                      ___________

     Submitted Under Third Circuit L.A.R. 34.1(a)
                 October 22, 2003

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

          (Opinion Filed: December 18, 2003)
             ________________________

              OPINION OF THE COURT
             ________________________
FUENTES, Circuit Judge:

       Grace McGorrian appeals the dismissal of her Title VII sex discrimination and

retaliation claims.    McGorrian is a board-certified psychiatrist who worked as an

independent contractor for Appellee EMSA Correctional Care (“EMSA”), a contracted

healthcare service provider at various correctional institutions. She claimed that she was

terminated and not rehired by EMSA in its SCI-Greensburg facility because of her sex as

well as in retaliation for threatening to pursue EEOC remedies, a protected activity under

Title VII. Because we agree with the District Court that McGorrian failed to raise a genuine

issue of material fact with respect to her discrimination claims, we affirm.

                                             I.

       McGorrian was hired in 1997 by EM SA to cover weekend hours and vacation days

of other psychiatrists employed by EMSA at SCI-Pittsburgh. Her hours at that facility

were gradually eliminated starting in June 1998. McGorrian complained to the Health

Services Administrator (“HSA”) at SCI-Pittsburgh that the decision to cut her hours was

based on gender and that she intended to sue EMSA for discrimination. These threats

were relayed to Regis Dorsch, Regional Manager and administrator of the EMSA

contracts from January 1997 to January 1999.

       In August of 1998, McGorrian requested an EMSA employment application

pursuant to an advertisement in the Psychiatric News. She returned the application to

Michelle Sechen, a recruiter in EMSA’s Florida office, indicating her interest in a part-

time psychiatric position at SCI-Pittsburgh or SCI-Greensburg,. McGorrian was not,



                                             2
however, hired by EM SA. Rather, when a position became available at SCI-Greensburg

in September, Tracey Freeman, HSA at that facility, hired Dr. Amr Khalafallah, an

independent contractor at SCI-Somerset.

       McGorrian filed a claim in the United States District Court for the Western District

of Pennsylvania, alleging two causes of action arising out of Title VII of the Civil Rights

Act. At issue in this appeal is McGorrian’s second charge that EMSA failed to hire her at

SCI-Greensburg both because of her gender and in retaliation for her accusations of

discrimination.1 Specifically, she alleged that Dorsch harbored discriminatory and/or

retaliatory animus toward her and failed to forward her application to SCI-Greensburg

when he received it from the Florida recruiting facility.

       EMSA requested summary judgment in the District Court, arguing that McGorrian

cannot state a prima facie case of discrimination or retaliation. EMSA further argued that

McGorrian cannot meet her ultimate burden of persuasion because she presents no

evidence which refutes EMSA’s proffered legitimate, non-discriminatory reasons for its

failure to rehire her.

                                             II.

       A motion for summary judgment should be granted “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,


   1
     McGorrian’s first cause of action alleged that “Dr. McGorrian was terminated from
her employment with EMSA on June 4, 1998 because of her sex, female, in violation of
Title VII of the Civil Rights Act of 1964, 42 USC §2002(e).” On M ay 9, 2001, the court
dismissed this cause of action, based on a finding that McGorrian was not an employee
but an independent contractor and therefore not covered by the statute. No appeal was
taken from that decision.

                                              3
show that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. In making this

determination, the court must draw all reasonable inferences in favor of the non-movant.

See Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994). We have jurisdiction to

review the final order of the District Court pursuant to 28 USC §1291. Our review of a

grant of summary judgment is plenary. See Curley v. Klem, 298 F.3d 271, 276 (3d Cir.

2002).

                                                III.

         The District Court correctly recognized that McGorrian’s Title VII claims follow

the familiar burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411

US 792 (1973). To survive summary judgment, a plaintiff must present a prima facie

case of discrimination or retaliation. The burden then shifts to the employer to show a

legitimate nondiscriminatory reason for its action. If the employer succeeds in doing so,

the plaintiff must then offer evidence which would allow a reasonable fact-finder to

determine that the given reasons are not believable, and a discriminatory purpose was

more likely than not a motivating factor in the decision. Jones v. School Dist. of

Philadelphia, 198 F.3d 403, 410 (3 rd Cir. 1999). Here, McGorrian does not satisfy her

burden.

          In order to establish a prima facie case of retaliation, plaintiff must prove: (1) that

she engaged in protected activity; (2) that the employer took an adverse employment

action against her; and (3) that there was a causal connection between the protected



                                                 4
activity and the adverse employment action. Krouse v. American Sterilizer Co., 126 F.3d

494, 500 (3d Cir. 1997). The first and second prongs of McGorrian’s prima facie case are

not disputed by EMSA. To fulfill the third prong, McGorrian contends that the temporal

proximity of her protected activity and the adverse employment action establishes a

sufficient causal link.

       The District Court correctly determined that no reasonable fact-finder could

conclude that there was a causal connection between Dr. McGorrian’s protected activity

and EM SA’s failure to rehire her to the September 1998 opening at SCI-Greensburg.

This court has held that mere temporal proximity is insufficient to demonstrate a causal

link between the two events. See Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302

(3d Cir. 1997)2 and there is no evidence in the record, aside from the two acts’ temporal

proximity and McGorrian’s unsubstantiated beliefs, that supports her assertions. To the

contrary, there is substantial evidence which undermines McGorrian’s assertions of a

causal nexus. McGorrian is correct in noting that the record shows that Appellant’s


   2
     2001) citing Woodson v. Scott Paper Co., 109 F.3d 913, 920-21 (3d Cir.1997) noted that
"[T]emporal proximity ... is sufficient to establish a causal link.” However, this court explicitly
confined that holding, originally articulated by this court in Jalil v. Avdel Corp., 873 F.2d 701,
708 (3d Cir. 1989), cert. denied, 493 US 1023, 110 S.Ct. 725, 107 L.Ed.2d 745 (1990) stating in
Robinson, three months after the decision in Woodson, that timing alone can be sufficient, but
only in a case with the “unusually suggestive facts” of Jalil in which proximity is so close as to
demand a finding of causation. (The events precipitating Jalil’s discharge began the day his
employer received news of his EEOC claim). The mere fact that adverse employment action
occurs after protected activity will ordinarily be insufficient to demonstrate a causal link between
the two events. See Quiroga v. Hasbro, Inc, 934 F.2d 497, 501 (holding that, "[a]s a matter of
fact," the timing of Quiroga's alleged constructive discharge was not independently sufficient to
prove it was caused by his complaint). There is no evidence that Dorsch took any action
immediately following his being notified of McGorrian’s complaint. Thus, McGorrian’s case “is
not one of the extraordinary cases where the plaintiff can demonstrate causation simply by
pointing to the timing of the allegedly retaliatory action.” Robinson, 120 F.3d at 1302.

                                                 5
application was forwarded by Sechen from EMSA’s recruiting facility in Florida to the

Regional Office in Western Pennsylvania in September of 1998. Dorsch, alleged

possessor of retaliatory animus, did not, however, know of McGorrian’s application until

the commencement of this action, and Freeman, who was in charge of the hiring process

at SCI-Greensburg at that time, knew nothing of Appellant’s charges of discrimination, or

even of her application for a position at SCI-Greensburg. In fact, as a general practice,

Freeman did not involve Dorsch or anyone in the Florida recruiting facility in her hiring

decisions, and this instance was no different. Freeman made the decision to hire Dr.

Khalafallah on her own, without informing Dorsch or Sechen about the vacancy or

soliciting their assistance or advice.

       In short, there is no evidence that Dorsch was at all involved in the hiring decision

at issue here, and there is no evidence that Freeman, who made the decision to hire Dr.

Khalafallah, harbored any retaliatory animus towards McGorrian or had her decision

affected in any way by Dorsch. These facts pry open a substantial gap in any causal chain

suggested by temporal proximity. Because McGorrian has failed to present evidence of a

causal connection between her complaint and Freeman’s failure to hire her, she has failed

to make out a prima facie case that there was retaliation.

                                            IV.

       McGorrian correctly notes that the district court did not specifically address

Appellant’s sex discrimination allegations. However, on the record before us, we find

that no reasonable fact-finder could conclude that Freeman’s failure to hire McGorrian



                                             6
was motivated by discriminatory animus. We need not reach the issue of whether

Appellant successfully presented a prima facie case because we find that even if one had

been presented, McGorrian does not provide any evidence to undermine EMSA’s very

straightforward legitimate, non-discriminatory reason for its failure to hire M cGorrian:

Freeman, the person singularly responsible for making hiring decisions, did not know of

McGorrian’s employment application when a position was available.

       McGorrian’s attempts to discredit this explanation are ultimately not persuasive.

She has not pointed to any implausibilities, inconsistencies, contradictions or incoherence

in this explanation, nor does the record itself suggest any such problems. She argues that

Freeman’s ignorance does not absolve EMSA because although Dorsch was not the

ultimate decision-maker, he deliberately withheld her application from Freeman to

influence her hiring decision. Dorsch testified, however, that he did not know of

McGorrian’s application or even of the vacancy at SCI-Greensburg. Furthermore, as

noted above, Freeman made the decision to hire Dr. Khallafallah without reviewing any

applications forwarded from Florida and without notifying Sechen or Dorsch of the

vacancy. Freeman’s failure to consider McGorrian for the position, therefore, was not

due to any oversight on Dorsch’s part, intentional or otherwise.

       To survive summary judgment, Appellant must come forward with evidence to

show that EMSA’s proffered reason for their failure to hire her was mere pretext, and

that the decision was truly motivated by discriminatory animus, and she fails to do so.

                                             V.



                                             7
       After carefully considering the arguments discussed above and all other arguments

advanced by the Appellant in support of her assertion that the District Court erred in

dismissing her claims in their entirety, we affirm the District Court’s decision.




TO THE CLERK OF THE COURT:




Kindly file the foregoing Opinion.




                                                             /s/ Julio M. Fuentes
                                                                 Circuit Judge




                                              8
