                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 18-1345
                                      _____________

                         KYMBERLEY COLE ROSENCRANS,
                                       Appellant

                                              v.

  QUIXOTE ENTERPRISES, INC., d/b/a Adult World; CHARLES ERIC MORROW
                          _______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D.C. No. 3-17-cv-00055)
                     District Judge: Honorable Richard P. Conaboy
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 2, 2018

           Before: CHAGARES, JORDAN, and VANASKIE, Circuit Judges.

                                (Filed: November 27, 2018)
                                     _______________

                                        OPINION*
                                     _______________

JORDAN, Circuit Judge.

       Kymberley Cole Rosencrans appeals the grant of summary judgment for Quixote

Enterprises, Inc. (“Quixote”) and Charles Eric Morrow (collectively, the “Defendants”)


       *
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
on her employment discrimination claims. For the reasons that follow, we will vacate

and remand.

I.       BACKGROUND

         In 2015, Rosencrans was hired to be a district manager at Quixote, an adult

entertainment business. Morrow is the part-owner and, as he has said, the “boss” of

Quixote who “make[s] the major decisions that need to be made” at the company. (App.

at 164.) Prior to her employment with Quixote, Rosencrans worked as Morrow’s

housecleaner.1 During that time, she and Morrow developed a friendship, which, in May

2015, led to their having sex. After that one-time encounter, the two remained on good

terms.

         In the fall of 2015, Rosencrans and Morrow discussed having Rosencrans begin

work at Quixote. She asserts that Morrow complained to her about problems with one of

his district managers and that she told him “she’d be willing to do the job.” (App. at

130.) The Defendants counter that Rosencrans pestered Morrow to hire her and he

finally relented and allowed her to apply, despite having serious reservations about her

ability to adequately fill the position. He was particularly concerned that she would have

trouble commuting for an hour and a half and being available on an emergency basis,

because Rosencrans was a single mother with four children.




        Rosencrans began cleaning Morrow’s house in 2008. At some point between
         1

2008 and 2015, Rosencrans stopped doing that. The parties dispute when that occurred
and why. The details of that dispute, however, are not relevant to the issues on appeal. It
is uncontested that, by April 2015, Rosencrans had resumed cleaning Morrow’s house.
                                              2
        Nonetheless, Morrow decided to hire Rosencrans as a district manager. After he

informed Quixote’s office manager, Sharon Greco, and Quixote’s Controller, Larry

Schemery, of that decision, Greco and Schemery met with Rosencrans to complete

required paperwork and review her job duties. Rosencrans received a copy of the

Quixote employee handbook, which contains an at-will employment provision and a

provision specifying that an employee’s first three months at the company are an

“evaluation period.” (App. at 106-07.)

        On November 9, 2015, Rosencrans began her employment with Quixote. The

parties disagree about much of what happened over the next eleven days –the entirety of

Rosencrans’s tenure at the company. For example, the Defendants assert that Rosencrans

failed to show up for work on Veterans’ Day, played on her personal computer during

work hours, and refused to attend training in Syracuse, New York. Rosencrans says all of

that is false.

        What is undisputed, however, is that on Sunday, November 15, Rosencrans flew to

Las Vegas and got married. Four days later, on Thursday, November 19, she sent

Morrow a text with that news. The next day, she was fired.

        Before she learned of her firing, she had sent Morrow another text, this one asking

whether she would have a company car in time for her training in Syracuse. Morrow

responded, “Change of plans… [T]alk to Larry [Schemery] in the office.” (App. at 228.)

Rosencrans called Schemery, who told her she “wasn’t working out and … they were

giving the other girl a chance, and they would call [her] if that didn’t work out.” (App. at

152.) After the call, Rosencrans and Morrow exchanged a series of texts, in the course of

                                             3
which Morrow told Rosencrans, “Ur just not working out and I gave the other girl

another chance… U have a [manager] job at the bar and a new husband….” (App. at

228.)

        Despite Morrow’s text, which appears to take responsibility for the decision to

give another woman the district manager position, the Defendants maintain that it was

Schemery, not Morrow, who decided to fire Rosencrans. According to the Defendants,

Morrow had asked Schemery and Greco to “[l]eave [him] out of” all decisions involving

Rosencrans’s employment. (App. at 196.) It was thus Schemery who terminated

Rosencrans, and, in the Defendants’ telling, he did so because of her lateness, personal

computer use, and “general poor attitude.” (App. at 53.) Greco testified that while

Schemery and Greco did, in fact, “run [the firing decision] by Morrow,” they were not

required to do so. (App. at 89.) And, when they asked for permission to discharge her,

Morrow told them, “[D]o what you have to do.” (App. at 89.)

        In January 2017, Rosencrans filed suit against Quixote and Morrow in the United

States District Court for the Middle District of Pennsylvania, alleging against Quixote

violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title

VII”), for quid pro quo and disparate treatment sex discrimination, and against Morrow a

violation of the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. (“PHRA”), for

aiding and abetting sex discrimination.

        The Defendants moved to dismiss the complaint in its entirety. The District Court

granted that motion as to the quid pro quo sex discrimination claim against Quixote but

denied it as to the other claims. The Defendants eventually moved for summary

                                             4
judgment on Rosencrans’s remaining claims, and the Court granted that motion,

concluding that Rosencrans had failed to establish a prima facie case of discrimination.

Rosencrans timely appealed.

II.    DISCUSSION2

       Rosencrans asserts that the District Court erred in granting summary judgment on

her disparate treatment and aiding and abetting sex discrimination claims. We agree,

because there is a genuine issue of material fact as to whether discriminatory animus

motivated her firing.

       The familiar McDonnell Douglas burden-shifting analysis applies to Rosencrans’s

discrimination claims under Title VII and the PHRA.3 McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). Under that framework, Rosencrans bears the initial burden

of establishing a prima facie case of discrimination. Id. at 802-03. If she can do so, the

burden of production shifts to the Defendants “to articulate some legitimate,

nondiscriminatory reason” for her firing. Id. at 802. If the Defendants carry that burden,

Rosencrans must then come forward with evidence that the legitimate reason offered by

       2
          The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have
appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s grant
of summary judgment de novo and “view inferences to be drawn from the underlying
facts in the light most favorable to the nonmoving party.” Montanez v. Thompson, 603
F.3d 243, 248 (3d Cir. 2010) (citation omitted). “Summary judgment is appropriate
where the [c]ourt is satisfied ‘that there is no genuine [dispute] as to any material fact and
that the moving party is entitled to a judgment as a matter of law.’” Celotex Corp. v.
Catrett, 477 U.S. 317, 330 (1986) (citation omitted). A genuine dispute exists only if
“the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
       3
        Insofar as claims of the kind here are concerned, the PHRA is interpreted to be
coextensive with Title VII. See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996).
                                              5
them was merely a pretext for discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 253 (1981).

       To establish a prima facie case of gender discrimination under a disparate

treatment theory, Rosencrans must show that (1) she is a member of a protected class; (2)

she was qualified for the position; (3) she suffered an adverse employment action; and (4)

the action occurred under circumstances giving rise to an inference of intentional

discrimination. See Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). Her prima

facie burden is not “onerous.” Burdine, 450 U.S. at 253. “[W]e have repeatedly

emphasized that the requirements of the prima facie case are flexible, and in particular

that ‘the fourth element must be relaxed in certain circumstances….’” Pivirotto v.

Innovative Sys., Inc., 191 F.3d 344, 357 (3d Cir. 1999) (quoting Torre v. Casio, Inc., 42

F.3d 825, 831 (3d Cir. 1994)).

       The first three elements are not in dispute. Rosencrans, a female, is a member of a

protected class; there is no contention that she was not qualified for her position; and she

was fired from Quixote. The District Court granted summary judgment based on

the fourth element, concluding that Rosencrans had failed to make a prima facie showing

that her termination occurred under circumstances giving rise to an inference of sex

discrimination. Rosencrans rightly contends that that was error.

       A Title VII claim premised upon marital status raises “what has come to be known

as a ‘sex-plus’ problem,” which “arises whenever an employer adds a criterion or factor

for one sex (e.g., marital status), which is not added for the other sex.” Bryant v. Int’l

Sch. Servs., Inc., 675 F.2d 562, 573 & n.18 (3d Cir. 1982) (citation omitted). In a “sex-

                                              6
plus” case like this, the plaintiff must show that her employer treated married women “in

a manner which ‘but for [that person’s] sex would . . . be[] different.’” Id. at 575

(quoting City of L.A. Dep’t of Water v. Manhart, 435 U.S. 702, 711 (1978)). A plaintiff

meets that burden by putting forth evidence showing she was treated less favorably than

similarly situated men or through evidence of other circumstances, such as impermissible

stereotyping, that gives rise to an inference of gender discrimination. Back v. Hastings

on Hudson Union Free Sch. Dist., 365 F.3d 107, 121 (2d Cir. 2004).

       Here, Rosencrans has put forth sufficient evidence for a prima facie showing that

her discharge occurred under circumstances giving rise to an inference of impermissible

discrimination. For example, in response to Rosencrans’s text messages questioning her

firing, Morrow texted back, “U have ... a new husband.” (App. at 228.) When asked at

his deposition why he included that fact in his response, Morrow testified, “Because she

just got married…. She’s not my problem…. It’s not my job to support that girl. It is

not my job…. Let him take care of her.” (App. at 181.) While the District Court

credited this as evidence of impermissible stereotyping on Morrow’s part, it nonetheless

concluded that Rosencrans’s claim failed because she could not show that Morrow was

the decisionmaker behind her firing or that Schemery and Greco shared Morrow’s views.

       That conclusion, however, overlooks evidence from Rosencrans that Morrow may

well have been the decisionmaker. Notably, after Rosencrans was fired, Morrow

described the decision in personal terms, explaining, “I gave the other girl another

chance….” (App. at 228.) While Morrow testified that he does not “hire and fire

people,” the evidence here can be viewed otherwise. (App. at 164.) Morrow was

                                             7
apparently the one who hired her,4 and his later text message can be read as taking

responsibility for replacing her. In addition, regardless of whether Schemery and Greco

were required to get Morrow’s permission to fire Rosencrans, it is not disputed that they

did seek his permission. And, of significance, there is a very close temporal proximity –

a single day – between when Rosencrans told Morrow she had gotten married and her

termination. See Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir.

1997) (“Cases in which the required causal link has been at issue have often focused on

the temporal proximity between the employee’s protected activity and the adverse

employment action, because this is an obvious method by which a plaintiff can proffer

circumstantial evidence sufficient to raise the inference that her protected activity was the

likely reason for the adverse action.” (quotation marks and citation omitted)). Taking all

of the evidence in the light most favorable to Rosencrans, there is sufficient evidence

connecting her firing to impermissible discrimination to establish the requisite prima

facie case under both Title VII and the PHRA.5


       4
         As the Defendants describe Rosencrans’s hiring, “Morrow reluctantly agreed to
let Rosencrans apply and see if it would work out…” (App. at 50.) But Quixote’s
employees testified that Morrow was the one who hired her and “sent her over” to them
to discuss her job duties and pay, having already offered Rosencrans the position.
Rosencrans says Morrow offered her the district manager position. Based on that record,
it can be fairly understood that Morrow hired Rosencrans.
       5
         The Defendants argue that Rosencrans has failed to put forward sufficient
comparator evidence to make out a prima facie case. She counters that, in a response to a
request for admission, the Defendants’ “admission” that “Defendants Quixote and
Morrow never fired anyone, male or female, because they were married or became
married during their employment with Quixote” is sufficient to show that she was treated
less favorably than similarly situated males. (App. at 244.) We do not have to decide
whether the Defendants’ discovery answer constitutes comparator evidence because, as
                                              8
       In short, we conclude that the District Court erred in granting summary judgment

on Rosencrans’s Title VII and PHRA claims because there are yet factual disputes to

resolve about whether she would have been terminated absent her marriage.

III.   CONCLUSION

       For the foregoing reasons, we will vacate the summary judgment order and

remand for further proceedings.




the District Court rightly noted, such evidence is not the only way to satisfy the fourth
prong. Back, 365 F.3d at 121.
                                             9
