                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 14-3390
                                      _____________

                                 MABLE S. JONES, MD,
                                                 Appellant
                                          v.

                                 TEMPLE UNIVERSITY
                                    _____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                            (D.C. Civil No. 2-12-cv-05349)
                  District Judge: Honorable Ronald L. Buckwalter
                                    ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 26, 2015
                                    ____________

              Before: CHAGARES, KRAUSE and BARRY, Circuit Judges

                             (Opinion Filed: August 13, 2015)
                                     ____________

                                        OPINION*
                                      ____________


BARRY, Circuit Judge

       Dr. Mable S. Jones appeals the order of the District Court granting summary

*
  This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
judgment in favor of her former employer, Temple University, on her federal and state

law claims of race and sex discrimination. We will affirm.

                                            I.

      Dr. Jones is an African-American woman who was formerly employed by Temple

University Hospital1 (“Temple”) as a neuroradiologist. She was hired by Temple in 2007

as a part-time physician on-call radiologist, paid at an hourly rate, having stated on her

employment application that she was seeking a part-time position. In 2009, Dr. Jones

was offered and accepted a salaried position as a neuroradiologist at Jeanes Hospital, a

hospital for which Temple provided radiology services pursuant to contract. According

to Temple, at that time Dr. Jones expressed a strong preference to work part-time. She

was classified as an “8/10ths” employee, which enabled her to receive benefits despite

not working full time.

      Dr. Jones held a non-faculty position throughout her term of employment at

Temple. Temple claims that there were no faculty positions available at the time Dr.

Jones was hired, and, at Jeanes Hospital, there were no residents and therefore no faculty

positions.2 Because she was not a faculty member, her employment contract required

only 90 days’ notice prior to termination, while the employment contracts for faculty


1
  Temple University Hospital is part of Temple University of the Commonwealth of
Pennsylvania System of Higher Education. The parties do not dispute that Temple is a
state entity which acts under color of state law.
2
  Dr. Jones claims that she made numerous requests to teach, but her requests were not
granted.
                                            2
members required one year’s notice.

       Around the time Temple entered into a contract with Jeanes Hospital to provide

radiology services, Temple’s Chair of Radiology, Dr. Charles Jungreis, selected Dr. Larry

Caputo, then Chairman of the Radiology Department at an affiliate of Methodist

Hospital, as Chief of the Radiology Department at Jeanes, a full-time position. This

chairperson position was not posted or publicly advertised, and no other candidates were

interviewed.    Dr. Jungreis testified that Dr. Caputo was selected based on his

experience—twenty-nine years’ experience as a radiologist and twenty years’

administrative experience as chairman of the radiology department at his previous

hospital—and strong recommendations from other Temple faculty members.               After

learning that Dr. Caputo had been selected, Dr. Jones expressed to Dr. Jungreis that she

would have been interested in the position.

       In 2009, Temple predicted a budget shortfall for fiscal year 2010, and Dr. Jungreis

was informed that he needed to eliminate at least one position from the radiology

department. Based on its evaluation methods, Temple determined that a neuroradiologist

position should be eliminated based on an insufficient volume of work. At the time, there

were eight neuroradiologists (Dr. Jones was the only African-American).            Temple

selected Dr. Jones’s position for elimination because she was the only part-time, non-

faculty neuroradiologist, rendering it easier for the remaining neuroradiologists to absorb

her work and requiring only 90 days’ notice prior to termination, and because Temple

                                              3
was in the process of implementing a new system to allow neuroradiology films to be

read remotely, lessening the need to have a neuroradiologist stationed at Jeanes Hospital.

Dr. Jones was advised in January 2010 that her position would be eliminated in April, but

ultimately her employment was extended, as Temple required additional time to

implement its new remote reading system. She was terminated in October 2010. This

lawsuit followed.

       As is relevant here, Dr. Jones alleged in her complaint that Temple discriminated

against her on the basis of race and sex in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e, et seq.; 42 U.S.C. § 1981; the Pennsylvania Human Relations

Act (“PHRA”), 43 Pa. Stat. §§ 951-63; and the Equal Protection Clause, pursuant to 42

U.S.C. § 1983, when Temple failed to select her as Chief of Radiology at Jeanes Hospital

and terminated her. On July 10, 2014, the District Court granted summary judgment in

favor of Temple on all claims.

       In a thorough and comprehensive opinion, spanning thirty-one pages, the District

Court held that Dr. Jones failed to set forth evidence that Temple’s legitimate,

nondiscriminatory reasons for selecting Dr. Caputo, instead of her, as Chief of Radiology

were a pretext for race or sex discrimination, and that Dr. Jones failed to establish a prima

facie case of race discrimination3 with respect to her termination, because there were no

similarly situated employees outside of her protected class who were treated differently.

3
  Dr. Jones conceded at summary judgment that the evidence did not support a claim of
sex discrimination with respect to her termination.
                                             4
The Court also held that, even if Dr. Jones could establish a prima facie case with respect

to her termination, she failed to offer any evidence that Temple’s legitimate,

nondiscriminatory reasons for her termination were a pretext for race discrimination.

       On appeal, Dr. Jones argues that the District Court erred in granting summary

judgment in favor of Temple because there were genuine issues of material fact in dispute

as to whether the reasons stated by Temple for failing to select her as Chief of Radiology

were a pretext for race and sex discrimination, whether she had established a prima facie

case of race discrimination with respect to her termination, and whether Temple’s reasons

for terminating her were a pretext for race discrimination.

                                            II.

       The District Court had jurisdiction pursuant to 28 U.S.C §§ 1331 and 1367, and

we have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a

district court’s order granting summary judgment, applying the same standard as the

district court. Mandel v. M&Q Packaging Corp., 706 F.3d 157, 164 (3d Cir. 2013).

Summary judgment is appropriate where “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). We view the facts in the light most favorable to the nonmoving

party, drawing all inferences in that party’s favor. Mandel, 706 F.3d at 164.

                                            III.

       Dr. Jones’s claims under Title VII, section 1981, and the PHRA are all analyzed

                                             5
under the “familiar burden-shifting framework” of McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999).

Under this framework, to establish a prima facie case of discrimination, a plaintiff must

show that “1) [she] is a member of a protected class, 2) [she] was qualified for the

position [she] sought to attain or retain, 3) [she] suffered an adverse employment action,

and (4) the action occurred under circumstances that could give rise to an inference of

intentional discrimination.” Mandel, 706 F.3d at 169 (quoting Makky v. Chertoff, 541

F.3d 205, 214 (3d Cir. 2008)). The burden then shifts to the employer “to articulate a

legitimate, non-discriminatory reason for the adverse employment action.” Makky, 541

F.3d at 214. When the employer articulates legitimate, non-discriminatory reasons for its

employment action, the plaintiff, to survive summary judgment, “must point to some

evidence, direct or circumstantial, from which a factfinder could reasonably either

(1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an

invidious discriminatory reason was more likely than not a motivating or determinative

cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).

      To succeed on a claim under 42 U.S.C. § 1983 for violation of the Equal

Protection Clause, a plaintiff must show “proof of racially discriminatory intent or

purpose” on the part of a state actor. Doe ex rel. Doe v. Lower Merion Sch. Dist., 665

F.3d 524, 543 (3d Cir. 2011) (internal brackets and quotation marks omitted). “The

central purpose of the [Equal Protection] Clause is to prevent the States from purposely

                                            6
discriminating between individuals on the basis of race.” Id. (internal quotation marks

omitted).

       Dr. Jones has failed to submit any evidence from which a reasonable fact finder

could conclude that her non-selection as Chief of Radiology was motivated by race or sex

discrimination or that her termination was motivated by race discrimination. Temple

claims that it did not select Dr. Jones as Chief of Radiology at Jeanes Hospital because it

was a full-time position, and she had expressed a preference for part-time work, and

because Dr. Caputo had many years of experience and strong recommendations from

other physicians. Dr. Jones contends that Temple’s stated reasons for her non-selection

are not credible because Temple had a poor track record of hiring black physicians and

because Dr. Jungreis failed to post the position (in violation of Temple policy), pursued

Dr. Caputo to the exclusion of any other candidate, and contended that the position need

not be posted because it was not a separate position. To defeat summary judgment,

however, a non-moving plaintiff seeking to discredit an employer’s proffered reasons for

an adverse employment action “must demonstrate such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate

reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of

credence.’” See Burton v. Teleflex Inc., 707 F.3d 417, 427 (3d Cir. 2013) (quoting

Fuentes, 32 F.3d at 765). Dr. Jones has failed to do so. A reasonable fact finder simply

could not conclude, from this evidence, that Temple’s reasons for failing to select Dr.

                                            7
Jones as Chief of Radiology are “unworthy of credence,” and there is no evidence that

Temple was motivated by discriminatory intent.4

      With respect to Dr. Jones’s termination, even assuming she could establish a prima

facie case of discrimination (an issue seriously in doubt), she has failed to present

evidence from which a reasonable fact finder could conclude that Temple’s legitimate,

nondiscriminatory reasons for her termination were a pretext for race discrimination.

Temple contends that it decided to terminate a neuroradiologist because of an insufficient

volume of work, and that it selected Dr. Jones for termination because she was stationed

at Jeanes Hospital and Temple was in the process of implementing new technology which

would permit films from Jeanes to be read remotely, and because Dr. Jones was a part-

time, non-faculty employee with a shorter period of required notice prior to termination

and a volume of work that could more easily be absorbed by others. Dr. Jones argues

that a jury could find that Temple’s stated reasons for her termination were pretextual

because its measures of work and productivity were flawed, the implementation of the

remote reading system was irrelevant, Temple erroneously concluded that she was not

capable of providing certain types of readings, other radiologists could have been

terminated instead of her, and Temple’s reasons for terminating her shifted over time.

Dr. Jones, however, “must do more than show that [Temple] was ‘wrong or mistaken’ in

deciding to lay [her] off,” to survive summary judgment. See Tomasso v. Boeing Co.,

4
 For purposes of Dr. Jones’s non-selection claim, we assume without deciding, as did the
District Court, that she stated a prima facie case of discrimination.
                                            8
445 F.3d 702, 706 (3d Cir. 2006).        The issue is “whether discriminatory animus

motivated the employer, not whether the employer is wise, shrewd, prudent, or

competent.” See Fuentes, 32 F.3d at 765. Dr. Jones has presented no evidence to

discredit Temple’s legitimate nondiscriminatory reasons for her termination, and no

evidence from which a fact finder could infer that Temple’s actions were motivated by

discriminatory animus. See Burton, 707 F.3d at 430. Her argument that Temple’s

reasons for terminating her shifted over time is unpersuasive and, as a factual matter, not

supported by the record.

                                           IV.

       We will affirm the order of the District Court granting summary judgment in favor

of Temple.




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