                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-29-2005

Parker v. Univ PA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3688




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                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   NO. 04-3688
                                 ________________

                              GORDON ROY PARKER,
                                             Appellant,

                                          v.

                     UNIVERSITY OF PENNSYLVANIA,
                A PENNSYLVANIA NONPROFIT CORPORATION

                     ____________________________________

                   On Appeal From the United States District Court
                      For the Eastern District of Pennsylvania
                             (D.C. Civ. No. 02-cv-00567)
                      District Judge: Honorable Anita B. Brody
                           __________________________

                      Submitted Under Third Circuit LAR 34.1(a)

                                    April 18, 2005

 BEFORE: NYGAARD, VAN ANTWERPEN and STAPLETON, CIRCUIT JUDGES

                                (Filed: April 29, 2005)
                                 _________________

                                     OPINION
                                 _________________

PER CURIAM

      Appellant Gordon Roy Parker, a former employee of the University of

Pennsylvania (“Penn”), submitted his resume electronically to Penn’s human resources
web site on July 16, 2001. His resume indicated his interest in administrative or clerical

positions, and described in some detail his prior work experience in these fields,

including, on page 2 of the resume, his 1992-93 job at the Penn health center.1

Importantly for purposes of this appeal, Parker’s resume did not disclose his race, which

is white, or his mental health history. App. 325-26. His name, of course, suggested that

he is male. Neither his resume nor his cover letter indicated that he was applying for any

open or available position.

       Parker also wrote a letter to Penn’s Office of Affirmative Action on July 27, 2001,

demanding a job and complaining about discrimination against white males. This letter,

which the parties have referred to as a “grievance,” was general in nature in that it

omitted any reference to Parker having posted his resume on the human resources web

site two weeks before. On October 23, 2001, when Parker had not received a call for an

interview, he filed a charge of discrimination with the Equal Employment Opportunity

Commission.

       After receiving his Notice of Right to Sue, Parker filed a complaint pro se against

Penn, alleging claims of race and gender discrimination, and retaliation, in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 et seq. (West 2003), and a

claim of disability discrimination in violation of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101 et seq. (West 1995). After a period of discovery, the parties

   1
    Inasmuch as we are writing only for the parties, we need not set forth the factual
background of this matter, except as may be helpful to our brief discussion.

                                              2
filed cross-motions for summary judgment, and, in a judgment entered on September 10,

2004, the District Court awarded summary judgment to Penn on Parker’s claims of race

and gender discrimination and retaliation.

       Earlier in the litigation, in an order entered on June 20, 2003, the District Court

dismissed Parker’s ADA claim as a sanction for failure to submit to a psychiatric

examination. In an order entered on the same day as the judgment, the court denied

Parker’s motion for reconsideration and motion for leave to amend his complaint to add

an equal protection claim and a claim based on post-filing conduct. Parker appeals the

summary judgment entered in Penn’s favor, as well as several interlocutory orders issued

by the District Court, and the sanctions imposed on him for his refusal to be examined by

a psychiatrist.

       We will affirm the order granting summary judgment to Penn on the claims of race

and gender discrimination, and retaliation, and the order denying reconsideration and the

post-judgment motion to amend. Our review of the District Court's grant of summary

judgment is plenary and we must affirm summary judgment if there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. See Celotex

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). We have carefully reviewed the record

and conclude that summary judgment in favor of Penn was proper.

       With respect to Parker’s claim that Penn failed to hire him on the illegal basis that

he is white and male, we conclude that he failed to make out a prima facie case of



                                              3
discrimination.2 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Despite posting his resume and writing a letter to Penn’s affirmative action office, Parker

did not actually apply for any open or available position. To make out a prima facie case

of discrimination in a failure to hire case where no employment application has been

submitted, a plaintiff must show that he generally made his interest in the position known

to the prospective employer. See Equal Employment Opportunity Comm'n v. Metal

Service Co., 892 F.2d 341, 348-50 (3d Cir. 1990). Penn established by affidavit that

Parker’s actions do not meet this test. Parker’s assertion that he made his interest known

by posting his resume and writing a general letter of complaint must be supported by

competent evidence at the summary judgment stage, Fed. R. Civ. Pro. 56(e), and it was

not.

       With respect to the disparate income claim, the District Court found that Parker

lacked standing, noting that there was “simply no evidence that any decisions Penn has

allegedly made with respect to promoting employment diversity have ever had any effect

on plaintiff.” Parker has identified no such evidence and, accordingly, we, too, find a

lack of standing.

       We further conclude that Parker failed to make out a prima facie case of

retaliation. Parker alleged that, instead of acting on his letter/grievance, Penn’s

affirmative action office engaged in “extensive internal communications” about him.

   2
    We are free to affirm the judgment of the District Court on any basis which finds
support in the record. See Bernitsky v. United States, 620 F.2d 948, 950 (3d Cir. 1980).

                                              4
App. 181. To make out a claim of retaliation, Parker must show that he engaged in a

protected activity, that he suffered an adverse employment action, and that there was a

link between the activity and the adverse action. Woodson v. Scott Paper Co., 109 F.3d

913, 920 (3d Cir. 1997). Assuming, as the District Court did, that the adverse

employment action was the failure to hire him, Parker failed to make a prima facie

showing of the existence of a causal link between Penn’s failure to hire him and the filing

of the “grievance.”

       Finally, Parker’s post-judgment attempt to amend his complaint to add an equal

protection claim and a claim concerning post-filing conduct3 came too late in the day,

because it would have forced Penn to defend the case all over again. See Cureton v.

Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 273-74 (3d Cir. 2001) (court has

considerable discretion in denying post-judgment motion to amend).

       We also will affirm the District Court’s orders denying appointment of counsel,

Parker’s numerous motions to compel or extend discovery, and Parker’s request for

$1500.00 from the Public Interest Civil Litigation Fund.4 The District Court did not


   3
     In an effort to cure the deficiencies in his case, Parker flooded Penn with
applications for employment, by applying for 90-100 specific administrative positions
from March through June 2002. He received four interviews and no offers. App. 181.
   4
      Our affirmance extends to the orders docketed at entry nos. 7 and 24, and 51 and 55
(to the extent these orders addressed discovery matters), 68, and 88 (to the extent this
order denied costs). An order that is not adverse to appellant, including, but not limited
to, the District Court’s original decision to grant appointment of counsel, is not
appealable. See Seidman v. City of Beverly Hills, 785 F.2d 1447, 1448 (9 th Cir. 1986); 8
James Wm. Moore, et al., Moore's Federal Practice, ¶ 41.34[7][b] (3d ed. 1998).

                                             5
abuse its discretion in denying Parker’s requests for additional discovery, see, e.g.,

Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000), appointment of counsel was

unwarranted given Parker’s abilities as a writer and presenter of arguments and the

relative weakness of his claims, see Darden v. Illinois Bell Telephone Co., 797 F.2d 497,

500-03 (7 th Cir. 1986), and Parker established no legal entitlement to be paid out of the

Public Interest Civil Litigation Fund.

       Last, we turn to the order entered on June 20, 2003 awarding money sanctions and

dismissing Parker’s ADA “regarded as disabled” claim, which we also will affirm.5 Penn

moved to compel Parker to be examined by a psychiatrist pursuant to Federal Rule of

Civil Procedure 35, contending that the results of said examination would bear on

Parker’s disability discrimination claim and the question of damages. Penn asserted that

good cause existed because Parker himself asserted that he had been diagnosed with a

bipolar disorder in the past.

       Following oral argument on the motion, the District Court ordered Parker to

submit to a psychiatric examination. Parker then withdrew his ADA claim predicated on

actual disability, and any remedies based on emotional distress, mental anguish and loss

   5
      We necessarily also consider the propriety of the District Court’s orders requiring
Parker to be examined by a psychiatrist as they form the basis for an award of sanctions.
We need not address the court’s order denying an interlocutory appeal. An order
requiring a Rule 35 examination, like most all discovery orders, is an interlocutory order
that is not appealable until the conclusion of the case, see Reise v. Bd. Of Regents of
Univ. of Wisconsin System, 957 F.2d 293, 295 (7 th Cir. 1992), and, in any event, if Parker
wished to contend otherwise, he should have appealed to this Court or petitioned this
Court for mandamus relief.

                                              6
of enjoyment of life. Parker, however, preserved his ADA claim based on perceived

disability, see 42 U.S.C. § 12102(2)(C), that claim being that Penn’s refusal to hire him in

2001 was the result of its improper perception that he was unemployable because he

suffers from a bipolar disorder, an impression allegedly formed during his previous

employment.

       The District Court held a telephone conference, and, on April 8, 2003, again

ordered Parker to undergo, the next day, a psychiatric evaluation, notwithstanding the

withdrawal of all but the “regarded as disabled” claim. App. 72-73. Parker refused, and

did not attend the examination. Penn moved for sanctions and Parker asked to be allowed

to take an interlocutory appeal. The District Court awarded Penn $480 for the missed

appointment and $520 for attorneys fees for a total sanction of $1,000. The court also

dismissed Parker’s ADA claim as a sanction and would not grant him an interlocutory

appeal.

       Although discovery is liberally granted generally, the physical or mental

examination of a party pursuant to Federal Rule of Civil Procedure 35 is only ordered if

the mental or physical condition of a party is “in controversy” and there is “good cause”

for the examination. Fed. R. Civ. Pro. 35(a). In Schlagenhauf v. Holder, 379 U.S. 104,

118-19 (1964), the Supreme Court explained that the "in controversy" and "good cause"

requirements would not be satisfied by conclusory allegations, or by assertions of mere

relevance to the case. Rather, the movant must make an affirmative showing that the



                                             7
requirements have been satisfied. Id.

       Parker contends on appeal that, having withdrawn his ADA claim predicated on

actual disability, and his request for a remedy based on emotional distress, mental anguish

and loss of enjoyment of life, he should not have been ordered to undergo a psychiatric

examination. His claim that he was regarded as disabled focused not on his actual

abilities, but rather on the reactions and perceptions of persons interacting with him. We

conclude, however, that the issue in controversy was not so narrow insofar as Parker

himself disclosed that he had previously been diagnosed as having a bipolar disorder.

Because a specific cause of action remained under the ADA concerning whether Parker

was regarded as disabled because of a major psychiatric illness, and he had previously

been diagnosed as suffering from a major psychiatric illness, his mental health was in

controversy and good cause existed for an examination by a psychiatrist.

       Therefore, sanctions were appropriate for his failure to attend the examination, and

the modest money sanction imposed pursuant to Fed. R. Civ. Pro. 37(b)(2) was not an

abuse of discretion. See Hoxworth v. Blinder, Robinson & Co., Inc., 980 F.2d 912, 919

(3d Cir. 1992). We also conclude that dismissal of the ADA claim as a sanction was

appropriate, see Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir.

1984), because a defendant is entitled under the rules of discovery to uncover the facts

supporting the allegations in a plaintiff's complaint. Our conclusion in this respect is

grounded also on our belief that Parker did not make out a prima facie case under the



                                              8
ADA. There is no evidence on this record that Penn mistakenly believed that Parker had

an impairment that substantially limited one or more major life activities, or that an actual

impairment substantially limited one or more of his major life activities. See Sutton v.

United Air Lines, Inc., 527 U.S. 471, 489 (1999).

       We will affirm the judgment of the District Court and all interlocutory orders

appealed.




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