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


2-10-2004

Dorsey v. Pittsburgh Assoc
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1882




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                                                              NOT PRECEDENTIAL

                    THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 03-1882
                                      ___________

        PATTY JO DORSEY, Executors of the Estate of Philip W. Dorsey III;
      DANIEL H. BOOKER; REDMOND JOHNSON, JR.; PHILIP S. DORSEY,

                                            Appellants

                                           vs.

                        PITTSBURGH ASSOCIATES, t/d/b/a
                     PITTSBURGH PIRATES BASEBALL CLUB


                                      ___________

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

                                 (D.C. No. 02-cv-00353)
                  District Judge: The Honorable Donetta W. Ambrose
                                     ___________

                             ARGUED JANUARY 27, 2004

                 BEFORE: NYGAARD and FUENTES, Circuit Judges,
                          and O’NEILL,* District Judge.

                               (Filed: February 10, 2004)
                                      ___________




*        Honorable Thomas N. O’Neill, Jr., Senior District Judge for the United States
District Court for the Eastern District of Pennsylvania, sitting by designation.
Walter G. Bleil, Esq. (Argued)
Samuel P. Kamin, Esq.
Goldberg Kamin & Garvin
437 Grant Street
1806 Frick Building
Pittsburgh, PA 15219
              Counsel for Appellants


Robert F. Prorok, Esq. (Argued)
James R. Haggerty, Esq.
David J. Burton, Esq.
Reed Smith
435 Sixth Avenue
Pittsburgh, PA 15219
              Counsel for Appellee

                                       ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

              The appellants, Philip Dorsey, III,1 Daniel Booker, and Redmond Johnson,

appeal the District Court’s summary judgment order in favor of Pittsburgh Associates.

Appellants applied for and were denied positions as ticket sellers at PNC Park. The

District Court held that appellants did not present a prima facie case of race and age

discrimination because they failed to show they were qualified for the job sought. We

will affirm, but do so on an alternate ground. We conclude that appellants satisfied the



1.       After this case was filed, Philip Dorsey, III died. His estate replaced him in the
lawsuit. As a matter of convenience, we refer to Dorsey as the appellant.

                                             2
threshold standard of qualification, but their claim fails at the pretext step of the familiar

McDonnell Douglas analysis.

                                               I.

              Because we write exclusively for the parties, we recite the facts only briefly.

Pittsburgh Associates owns and operates the Pittsburgh Pirates baseball franchise.2 Until

2001, the Pirates played their home games at Three Rivers Stadium, but in the 2000-2001

off-season they moved to a new stadium called PNC Park. Because they were the

stadium operators at PNC Park, the Pirates were responsible for staffing the stadium

during games.

              The Pirates made several decisions that were intended to make attending a

game at PNC Park a different and better experience than it had been at Three Rivers

Stadium. The Pirates strived for increased customer service at PNC Park. This customer

service focus was buttressed by an upgrade to a new ticketing system.

              Before the 2001 season opened, the Pirates conducted hiring for ticket

seller, greeter, and host positions through an application and interviewing session on

January 22, 2001. At that session, the Pirates emphasized their customer service vision

for PNC Park. The Pirates hired applicants for ticket seller positions based on direct

knowledge of their work performance at Three Rivers Stadium, without consulting




2.       For the sake of convenience, we will refer to Pittsburgh Associates as “the
Pirates.”

                                               3
interview results or requiring computer proficiency testing. Because Pirates staff had no

interaction with greeters and hosts at Three Rivers Stadium, applicants for those positions

were evaluated through interviews. Of 369 applicants for ticket seller, greeter, and host

positions, the Pirates hired 336.

              Appellants are three of only four rejected ticket seller applicants.3 They are

African American men, ages 74, 69, and 58. They had worked as ticket sellers at Three

Rivers Stadium for 30, 30, and 12 years, respectively. Each appellant received an

“acceptable” rating based on his interview on January 22, 2001, but was denied the job as

ticket seller on the basis of Pirates’ executives already-formed impressions of his

computer and customer service skills.

              After being denied jobs at PNC Park, appellants filed suit alleging racial

discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) and 42 U.S.C.

§ 1981, age discrimination under the Age Discrimination in Employment Act (“ADEA”),

and discrimination under the Pennsylvania Human Relations Act (“PHRA”). The District

Court granted summary judgment for the Pirates because appellants failed to show they

were qualified for the ticket seller position and, as a result, did not make out a prima facie

case of age or race discrimination.

                                             II.




3.      The rejected Ticket seller applicant who is not participating in this lawsuit is a
white male.

                                              4
              We have jurisdiction under 28 U.S.C. § 1291, because we are asked to

review a summary judgment order by the District Court that entirely disposed of the case.

We have plenary review of the District Court’s decision to grant summary judgment. See

Blair v. Scott Specialty Gases, 283 F.3d 595, 602-03 (3d Cir. 2002).

              In McDonnell Douglas Corp. v. Green, the Court established a burden-

shifting framework for claims under Title VII. 411 U.S. 792, 802 (1973). The plaintiff

must first establish a prima facie case by meeting several conditions: (1) he is a member

of a protected class, (2) he applied for and was qualified for an open position, (3) he was

rejected, and (4) after rejection, the position remained open and the employer continued

accepting applications. Id. Then, if the plaintiff is successful in making out a prima facie

case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory

reason” for his action. Id. at 802. “Finally, should the defendant carry this burden, the

plaintiff then must have an opportunity to prove by a preponderance of the evidence that

the legitimate reasons offered by the defendant were not its true reasons, but were a

pretext for discrimination.” Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir.

1999) (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)).

              We use the McDonnell Douglas analysis for each of the discrimination

claims made by appellants here. See Narin v. Lower Merion Sch. Dist., 206 F.3d 323, 331

(3d Cir. 2000) (using the McDonnell Douglas framework in an ADEA context); Gomez v.

Allegheny Health Servs., Inc., 71 F.3d 1079, 1084 (3d Cir. 1995) (stating that PHRA



                                             5
claims are analyzed under McDonnell Douglas “consistently with interpretations of Title

VII”).

A.            Prima Facie Case

              The District Court concluded that appellants failed to make out a prima

facie case of discrimination because they did not show they were qualified for ticket seller

positions. We conclude that appellants have presented sufficient evidence to create a

prima facie case.

              We have noted that if a plaintiff is not qualified for the job he seeks, we can

reject a discrimination claim without the heavy lifting that is required if a prima facie case

is made out. See, e.g., Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 n.4 (3d Cir.

1999). However, “‘[w]hile objective job qualifications should be considered in

evaluating the plaintiff’s prima facie case, the question of whether an employee possesses

a subjective quality . . . is better left to’ consideration of whether the employer’s

nondiscriminatory reason . . . is pretext.” Sempier v. Johnson & Higgins, 45 F.3d 724,

729 (3d Cir. 1995) (quoting Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990)).

“[T]o deny the plaintiff an opportunity to move beyond the initial stage of establishing a

prima facie case because he has failed to introduce evidence showing he possesses certain

subjective qualities would improperly prevent the court from examining the criteria to

determine whether their use was mere pretext.” Id. (quoting Weldon, 896 F.2d at 798-99).




                                               6
               The Pirates argue, as they did before the District Court, that appellants were

not qualified for positions as ticket sellers. This argument is intertwined with the

assertion that appellants’ lack of computer and customer service skills constitutes a

legitimate reason for not hiring them. The District Court accepted the Pirates’ argument

and chose to dispose of the case at the first stage of McDonnell Douglas. In doing so, the

District Court improperly failed to examine the hiring criteria to determine whether their

use was mere pretext. See Weldon, 896 F.2d at 798-99. We will not follow suit and

collapse the entire McDonnell Douglas analysis into this first step. Id. at 799.

B.             Burden-Shifting Under McDonnell Douglas

               We conclude that the District Court erred by not proceeding to the pretext

analysis under McDonnell Douglas. This error, however, was not prejudicial to

appellants. Had the Court proceeded to the pretext analysis, it would have reached the

same result.

               Appellants having made out a prima facie case, a presumption arises that

the Pirates discriminated in their hiring decision. McDonnell Douglas, 411 U.S. at 802.

The Pirates can successfully dispel that presumption by presenting a nondiscriminatory

reason for their decision not to hire appellants. Id. At this second step of the McDonnell

Douglas analysis, “the defendant must clearly set forth, through the introduction of

admissible evidence, reasons for its actions, which, if believed by the trier of fact, would

support a finding that unlawful discrimination was not the cause of the employment



                                              7
action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (internal citations and

quotations omitted) (emphasis in original).

              To accompany its summary judgment motion, the Pirates presented

deposition testimony from several Pirates executives who had personal interactions with

appellants at Three Rivers Stadium. Mike Krachkowski and Dave Wysocki, Assistant

Directors of Ticket Operations for the Pirates, were familiar with each appellant through

their responsibility for managing all game-day operations relating to ticket sales and

supervising ticket sellers on a day-to-day basis. John Barna, Ticket Office Assistant for

the Pirates, was familiar with appellants because he monitored their daily sales report

records. According to Krachkowski, Wysocki, and Barna, appellants lacked the computer

and customer service skills required of ticket sellers at PNC Park. Specifically, these

individuals testified that appellants each struggled with the Ticket Master computer

system at Three Rivers Stadium, which was substantially easier to operate than the

Tickets.com system being installed at PNC Park.

              The deposition testimony indicated that Dorsey relied solely on the function

keys to sell tickets, and as a result was unable to accommodate purchasers’ specific

requests for seats. Booker could not fix simple computer problems or handle basic

customer requests. Johnson, like Dorsey, relied solely on the function keys to sell tickets.

Each appellant was also subpar in terms of customer service. The Pirates received

multiple complaints about Dorsey being rude to customers and exhibiting poor skills at



                                              8
his job. Booker frequently exchanged tickets for games already played (clearly violating

company policy) and needed to be reminded of ongoing promotions and sales. A line

frequently formed at Johnson’s booth because he was slower than other ticket sellers.

Additionally, all three appellants had trouble balancing their cash drawers or their daily

sales reports at the end of shifts.

               It is entirely reasonable that the Pirates chose not to hire appellants because

their work performance at Three Rivers Stadium did not meet the new, higher standards

being imposed at PNC Park. Thus, because the Pirates have presented a legitimate,

nondiscriminatory reason for its hiring decisions, the McDonnell Douglas burden shifts

back to appellants.

               Once a defendant has presented a legitimate, nondiscriminatory reason for

its hiring decision, a plaintiff seeking to avoid summary judgment must present pretext

evidence that: (1) casts doubt upon each of the reasons offered by defendant for the

employment action so that a fact-finder could reasonably conclude that each was a

fabrication; or (2) allows the fact-finder to infer that discrimination was more likely than

not the cause for the employment action. Fuentes v. Perskie, 32 F.3d 759, 761 (3d Cir.

1994). Appellants have not made either showing. Appellants show few, if any,

“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the




                                               9
[Pirates’] proffered legitimate reasons” for not hiring them.4 Id. at 765. Hence, because

there is a lack of a genuine issue of fact on whether the Pirates’ proffered reason was

pretextual, summary judgment for the Pirates was appropriate.

C.            Statistics

              The statistics appellants attempted to present before the District Court do

nothing to save their claim, as the statistics do not make out a case of pretext. While

“statistics as to . . . employment policy and practice may be helpful to a determination of

whether . . . [a] refusal to rehire . . . conformed to a general pattern of discrimination,”

here they are unavailing. McDonnell Douglas, 411 U.S. at 805. The statistics appellants

propose to present are “based on an applicant pool containing individuals lacking minimal

qualifications for the job” and are thus of little probative value. Watson v. Ft. Worth

Bank & Trust, 487 U.S. 977, 997 (1988); see also Berger v. Iron Workers Reinforced

Rodmen, 843 F.2d 1395, 1420 (D.C. Cir. 1988) (“It is well established that if a statistical

model does not take into account the legitimate, objective qualifications for the jobs being

analyzed, then it fails sufficiently to focus on an appropriate labor pool, and is therefore

deficient in establishing a prima facie case.”).

                                              III.




4.      Specifically, appellants argue that other Three Rivers Stadium employees lacking
the requisite computer skills were offered alternate jobs at PNC Park’s will call window.
The record shows, however, that those employees were automatically given the positions
on the basis of seniority.

                                              10
              For the foregoing reasons, we will affirm the District Court’s order granting

summary judgment to the Pirates. We do so because appellants have failed to show that

the Pirates’ proffered reason for not hiring them was pretextual.
