                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-18-1999

Hankins v. City of Phila.
Precedential or Non-Precedential:

Docket 98-1327




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Filed August 18, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1327

CECIL HANKINS,
       Appellant

v.

CITY OF PHILADELPHIA; AMERICAN FEDERATION OF
STATE, COUNTY AND MUNICIPAL EMPLOYEES;
AMERICAN FEDERATION OF STATE, COUNTY AND
MUNICIPAL EMPLOYEES DISTRICT COUNCIL 47,
LOCAL 2187

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 95-cv-01449)
District Judge: Hon. Jay C. Waldman

Argued December 15, 1998

BEFORE: SLOVITER and COWEN, Circuit Judges and
OBERDORFER,* District Judge

(Filed August 18, 1999)

       Richard J. Silverberg, Esq. (Argued)
       Richard J. Silverberg & Associates
       1500 Walnut Street, Suite 900
       Philadelphia, PA 19102

        Counsel for Appellant
_________________________________________________________________

* Honorable Louis F. Oberdorfer, U.S. District Judge for the District of
Columbia, sitting by designation.
       Howard Lebofsky, Esq. (Argued)
       City of Philadelphia Law Department
       1515 Arch Street
       One Parkway Building, 17th Floor
       Philadelphia, PA 19102

        Counsel for Appellee
        City of Philadelphia

       Wayne Wynn, Esq. (Argued)
       Willig, Williams & Davidson
       1845 Walnut Street, 24th Floor
       Philadelphia, PA 19103

        Counsel for Appellees
        American Federation of State,
        County and Municipal Employees
        and American Federation of State,
        County and Municipal Employees
        District Counsel 47, Local 2187

OPINION OF THE COURT

COWEN, Circuit Judge

Cecil Hankins, an African-American and a long-time
employee of the City of Philadelphia ("the City"), brought
this action against the City under Title VII of the Civil
Rights Action of 1964, 42 U.S.C. S 2000e et seq. ("Title VII"),
the Pennsylvania Human Relations Act ("PHRA"), 42 U.S.C.
S 1983, and 42 U.S.C. S 1985. Hankins also sued his union,
the American Federation of State, County, and Municipal
Employees, District Council 47, Local 2187 ("Local 2187" or
the "Union"), under 42 U.S.C. S 1985 and state law.1
Hankins's primary allegations are that the City denied him
a promotion to become the Director of its AIDS Activities
Coordinating Office ("AACO Director" or"Program Director")
_________________________________________________________________

1. Hankins originally sued both Local 2187 and it parent union,
AFSCME. He has since abandoned his claims against AFSCME, however,
and therefore all references in this opinion to the Union will refer only
to
Local 2187.

                               2
because of his race, and that Local 2187 conspired with the
City to deny him the position for the same illegitimate
reason. The District Court granted summary judgment in
favor of both defendants. The District Court also denied
plaintiff's motion for sanctions against the City based on
three instances of alleged misconduct by the City's counsel
during the course of discovery.

We conclude that the District Court improperly resolved
certain factual disputes that are central to Hankins's race
discrimination claims against the City, and will therefore
reverse the grant of summary judgment in the City's favor.
We will affirm the District Court in all other respects.

I. Factual Background

As this appeal arises from the grant of defendants'
motion for summary judgment, we recount the facts
contained in the record in a light most favorable to plaintiff,
the non-moving party. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986).

A. The AIDS Activities Coordinating Office

The AIDS Activities Coordination Office ("AACO") was
founded in 1987 as part of the City's Department of Health.
Among its responsibilities, AACO oversees AIDS prevention
programs and the distribution of government funding for
AIDS-related services in Philadelphia. According to David
Fair, AACO's first director, the office was founded at a time
of increasing tensions between AIDS advocacy groups
identified with the "white, gay community" and other
individuals and organizations representing ethnic and
racial minorities afflicted with HIV and AIDS. 2 Although the
conflict between the two sides had different dimensions, the
core dispute concerned the allegation that a
disproportionate percentage of the funds available for AIDS-
related services were allocated to organizations affiliated
with the white, gay community, despite the fact that the
_________________________________________________________________

2. We use the phrase "white, gay community" because the record reflects
its usage among the parties and the witnesses in this case, not because
we necessarily share the view that there is an identifiable "community"
made up exclusively of individuals who are white and gay.

                               3
disease was having an increasingly devastating effect on
minorities.

This competition for funding fostered a politically and
racially charged atmosphere surrounding the AACO and its
Director. Dr. Robert Ross, the City's Health Commissioner
during most of the events relevant to this lawsuit and the
individual responsible for appointing the Program Director,
was aware of these circumstances. According to Fair, he
and Dr. Ross had several conversations concerning the
growing impact that AIDS was having on minority
communities. In the course of these discussions, Dr. Ross,
who is an African-American, often acknowledged the strong
influence that the leaders of the white, gay community had
in Philadelphia political circles, including the Mayor's office.

The City had difficulty attracting and retaining qualified
individuals to the AACO Directorship because, among other
reasons, decisions regarding AIDS funding were widely
perceived as having racial and ethnic undertones, AACO
was an under-funded office and subject to intense media
criticism, and there were salary constraints on the position
occasioned by the City's fiscal crisis. Faced with a vacancy
in the position in the Summer of 1992, Dr. Ross asked
Anola Vance, an African-American woman who was then
the manager of the AIDS Education and Counseling
Services Division of AACO, if she would consider becoming
the next Program Director. Although Vance had previously
declined the position on several occasions, this time she
reluctantly accepted. After submitting a civil service
application that was approved by the City's personnel
office, Vance was formally appointed AIDS Program Director
in July 1992. Vance did not last very long, however, and
within a few months she informed Dr. Ross, as well as
Barry Savitz, the Deputy Health Commissioner, that she
did not wish to remain in the job. While Vance agreed to
remain Program Director until a suitable replacement was
found, Dr. Ross and Savitz began to consider other
candidates for the position.

B. Plaintiff's Employment History with the City

Cecil Hankins began working for the City in 1978 at the
Department of Human Services, and subsequently held

                               4
various positions within the Health Department before
joining AACO in 1987 as a program analyst. Approximately
six months after arriving at AACO, Hankins was promoted
to program analyst supervisor. Less than one year later,
Hankins was asked to serve as Acting Director of AIDS
Agency Services, a senior supervisory position within AACO
that reported directly to the Program Director. Hankins
held this position intermittently until March 1992, but
ultimately did not receive a permanent appointment to the
post because he did not attain a sufficiently high score on
the civil service examination for the position. At Dr. Ross's
direction, Hankins was eventually transferred from AACO to
work at the Charles R. Drew Mental Health Center (the
"Drew Center"), a private facility which the City had
recently assumed operational control over. By early July
1992, Hankins was again transferred by Dr. Ross; this time
to work in the Health Commissioner's office on a project
related to urban violence.

Later that same month, Hankins informed Dr. Ross and
Deputy Health Commissioner Estelle Richman that he
intended to resign from the City. Both Dr. Ross and
Richman attempted to discourage him from resigning, but
Hankins would not reconsider. In his resignation letter to
Dr. Ross, Hankins noted that he was leaving the City with
"tremendous ambivalence," but did so to meet"unforseen
challenges." Following his departure from City employment,
Hankins eventually became privately employed at the Drew
Center, where he remained until December 1993.

C. The Program Director Appointments

One of the individuals whom Dr. Ross and Barry Savitz
considered to replace Anola Vance as AACO Director was
Richard Scott, a former Health Department employee who
had been on a leave of absence from the City for eight
years. During that time, Scott was serving as the elected
union agent for Local 2187, which is the certified collective
bargaining representative for certain classes of City
employees, including many employees in the Health
Department. As a union agent, Scott's duties included
representing the Union's membership in arbitration and
grievance proceedings, as well as representing the Union at
meetings of the Civil Service Commission. Dr. Ross and

                                5
Savitz had frequent dealings with Scott in his role as union
agent and were both impressed by the manner that Scott
did his job. Dr. Ross and Savitz also knew Scott as a
prominent, long-time activist in the Philadelphia AIDS
community. Among his other experience, Scott had served
as the chairperson of the AIDS Advocacy Coalition, an
organization formed during the early years of the AIDS
crisis to press for greater funding for AIDS-related services.
According to David Fair, Scott was widely viewed, including
by Dr. Ross and Savitz, as an influential leader in the gay,
white community and as someone who represented an
important political constituency in the City.

At the suggestion of Savitz, Dr. Ross asked Richard Scott
in the Fall of 1992 whether he would consider leaving his
job as union agent for Local 2187 to become the next
Program Director. At the time, Scott told Dr. Ross that
family responsibilities prevented him from accepting the
position. In January 1993, Dr. Ross again asked Scott if he
would be interested in the AACO Directorship. This time
Scott agreed to be considered. During their subsequent
discussions about the position, Scott expressed concern to
Dr. Ross that, under the existing civil service specifications,
he did not have the requisite qualifications for the position.
At the time, the civil service specifications required that the
Program Director have, among other qualifications,
permanent civil service status, a master's degree, and three
years of so-called second-level supervisory experience
directing an AIDS/HIV-related program providing services
for a large government jurisdiction.3 Although Scott did
have permanent civil service status by virtue of his previous
employment by the City, he did not have either of the other
credentials. Despite this, Dr. Ross told Scott that he would
attempt to have "the job made available to [Scott]," which
Scott interpreted to mean that Dr. Ross would have the civil
service specifications changed to match his qualifications.

In late January 1993, Scott informed Dr. Ross that he
would accept the Program Director position. Scott
terminated his employment with Local 2187 on February
_________________________________________________________________

3. "Second-level supervisory experience" refers to directing a program
through subordinate supervisors.

                               6
15, 1993 and resumed active employment with the City the
following day. Although Scott was given the title of Acting
Program Director and an official civil service announcement
had not yet been released, both Dr. Ross and Scott
regarded the appointment as permanent.

At Dr. Ross's request, Barry Savitz worked with Joseph
McNally, the Health Department's Personnel Officer, to
"broaden" the eligibility criteria for the Program Director
position for the specific purpose of allowing Richard Scott
to qualify for the position. As a result of Savitz and
McNally's efforts, new civil service specifications for the
Program Director position were promulgated in January
1993. Under these new specifications, permanent civil
service status was still required, but a candidate could now
substitute a bachelor's degree and three years of experience
administering a "national HIV/AIDS program" in place of
three years of second-level supervisory experience and a
master's degree. The new specifications also provided that
a candidate could be eligible for the position if he or she
had "[a]ny equivalent combination of education and
experience determined to be acceptable by the Personnel
Department," and further provided that volunteer
experience could substitute for paid employment
experience. As a result of these changes, Richard Scott,
who held a bachelor's degree and had managed a nation-
wide HIV/Prevention program on a volunteer basis for more
than three years, was eligible to become Program Director.
The amended specifications were approved by the Civil
Service Commission at its January 1993 meeting.

At some point during the same month, Hankins, who was
no longer employed by the City, learned that Anola Vance
was leaving her job as Program Director. According to
Hankins, he telephoned Dr. Ross to express his interest in
the position. Their subsequent conversation is, in many
respects, the heart of this lawsuit. According to Hankins,
when he informed Dr. Ross that he would like to be
considered for the Program Director position, Dr. Ross told
him that the job was "reserved for the gay, white
community." App. at 489. When Hankins questioned Dr.
Ross about the fairness of making such a decision on the
basis of race, Dr. Ross reiterated his position and further

                               7
stated that Richard Scott was the specific individual for
whom the job was reserved. Id. For his part, Dr. Ross
denies ever telling Hankins or anyone else that the position
was reserved for someone who was white or gay, and claims
that Hankins never expressed an interest in becoming
Program Director.

It is undisputed, however, that Dr. Ross eventually
arranged for Hankins to return to City employment on
March 1, 1993, as a program analyst within the Health
Department's Mental Health/Mental Retardation Unit. As a
reinstated City employee, Philadelphia civil service
regulations required that Hankins serve a six month
probationary period before resuming permanent civil service
status.

A civil service announcement for the Program Director
position, reflecting the January 1993 amendments to the
civil service specifications, was released in June 1993.4 By
this time, Scott had already been Acting Program Director
for approximately four months. Despite the fact that
Hankins had been told by Dr. Ross that the position was
reserved for a member of the gay, white community,
Hankins still submitted an application for the job. Richard
Scott and another white City employee were the only other
applicants for the position.

Mark O'Connor was the analyst in the City's Personnel
Department assigned to review all applications for the
Program Director position. As an employee of the Personnel
Department, O'Connor did not report to Dr. Ross or anyone
else from the Health Department. O'Connor's job was to
evaluate the applications for the Program Director position
and confirm whether the candidates possessed the requisite
qualifications for the position. Upon reviewing Hankins's
application, O'Connor determined that Hankins did not
have the second-level supervisory experience required
under the civil service specifications. Accordingly, by letter
_________________________________________________________________

4. A civil service announcement for the Program Director position was
first released in May 1993, but that announcement erroneously did not
reflect the amendments to the job specifications that had been approved
by the Civil Service Commission in January.

                               8
dated July 9, 1993, O'Connor notified plaintiff that his
application had been rejected for that reason.

On July 19, 1993, Hankins submitted an amended
application for the Program Director position which
included additional information regarding his qualifications.
That same day, however, Richard Scott was officially
appointed AIDS Program Director. Approximately three
months later, O'Connor notified plaintiff that his amended
application for Program Director had been rejected because,
notwithstanding the additional information that Hankins
had provided concerning his qualifications, O'Connor still
believed that Hankins did not have the experience required
for the position.

On October 1, 1994, Richard Scott was removed from his
position as Program Director and was reassigned to become
Chief of Staff to Estelle Richman, who had previously
succeeded Dr. Ross as the City's Health Commissioner.
Following Scott's departure from AACO, the Program
Director position remained open for nine months. During
this period, Hankins again expressed his interest in the
position to Richman. In July 1995, Richman selected Jesse
Milan, an African-American who was then working for
Temple University, to be the next Program Director.
Because Milan was not a civil service employee, he was
"loaned" to the City by Temple University outside of the civil
service process. Milan served as Program Director until his
resignation in 1997, at which time Richman appointed
Patricia Bass and Joseph Croneaur interim co-directors of
AACO. Like Milan, Bass and Croneaur were not City
employees and were not appointed though the civil service
process.

D. The Union's Involvement

In his capacity as union agent, Richard Scott was present
at the January 1993 meeting of the Civil Service
Commission when the Commission approved the changes
to the specifications for the Program Director position. As a
union agent, Scott was responsible for representing Local
2187 at such meetings on issues related to bargaining unit
positions. Under the collective bargaining agreement
between the City and Local 2187, however, the Program
Director position was not a bargaining unit position.

                               9
At a general meeting of Local 2187 on June 22, 1993, a
union shop steward raised the issue of whether there had
been any impropriety in the Civil Service Commission's
decision to amend the specifications for the Program
Director position. Cathy Scott, the union agent who had
succeeded Richard Scott (but is not related to him), agreed
to look into the matter. Approximately two months later,
Ms. Scott submitted a brief report to Local 2187's Executive
Board in which she detailed the basic facts surrounding
Richard Scott's appointment as Program Director. Ms. Scott
did not draw any conclusions about whether there had
been any impropriety concerning Richard Scott's
appointment, but did request that the Executive Board
advise her if it wished her to investigate further. The
Executive Board did not instruct Ms. Scott to take any
additional action.

In late September 1993, Hankins wrote a letter to the
City's Personnel Department challenging the amendment to
the civil service specifications which allowed an applicant
for Program Director to substitute volunteer experience in
place of paid experience. After receiving the City's response
rejecting his challenge in November 1993, Hankins
contacted Patricia Walton, the Union's Vice-President, for
assistance as to how he should proceed in challenging
Richard Scott's appointment. Walton advised plaintiff that
she would look into the matter. Walton subsequently
contacted Hankins sometime in January 1994 and advised
him that it was too late for the Union to do anything
regarding the appointment.

II. Procedural History

After obtaining a right-to-sue letter from the EEOC,
Hankins filed the instant lawsuit in the District Court for
the Eastern District of Pennsylvania. Hankins's central
claim is that the City rejected his application to become the
AIDS Program Director on the basis of his race, in violation
of Title VII, the PHRA, and 42 U.S.C. S 1983. He also claims
that the City illegally retaliated against him forfiling this
lawsuit by refusing to fill the Program Director position
though the civil service process. Hankins further alleges
that the City and the Union have conspired to deny him the

                               10
Program Director position because of his race, in violation
of 42 U.S.C. S 1985(3) and state law. Finally, Hankins
claims that the Union is liable for tortious interference with
prospective contractual relations and fraud based on the
Union's alleged inaction in assisting his challenge to the
appointment of Richard Scott.

During the course of discovery, plaintiff moved for
sanctions against the City based on three incidents of
alleged misconduct on the part of the City's counsel. On the
first occasion, plaintiff alleges that the City's counsel
inappropriately communicated with Dr. Ross during a
break at his deposition to coax him to change a response
that was unfavorable to the City. In the second incident,
plaintiff contends that the City's counsel threatened to
retaliate against David Fair if he did not agree to cooperate
with the City's investigation of plaintiff's complaint. Lastly,
plaintiff asserts that the City's counsel and its agents, while
investigating Hankins's background in his home state of
South Carolina, contacted his family members under false
pretenses and circulated damaging misinformation about
him. The District Court denied Hankins's motion for
sanctions against the City in full, determining that in all
three instances cited by plaintiff, the City's counsel had not
engaged in any misconduct.

The District Court granted summary judgment in favor of
both defendants. Analyzing the case under the McDonnell
Douglas-Burdine burden-shifting formula, the District Court
concluded that Hankins could not establish a prima facie
case of race discrimination against the City because he did
not have the requisite qualifications to become the AIDS
Program Director. Hankins v. City of Philadelphia, No. Civ.
A. 95-1449, 1998 WL 175600 at *11-13 (E.D. Pa. April 9,
1998). Specifically, the District Court held that Hankins did
not qualify because: (i) he did not have sufficient
supervisory experience under either the original civil service
specifications or the specifications as amended in January
1993; and (ii) at the time the position was filled, Hankins
was a probationary City employee without permanent civil
service status, which the District Court believed rendered
him ineligible to become Program Director under the City's
civil service regulations. Id. The District Court also

                               11
dismissed Hankins's retaliation claim against the City
because plaintiff presented no evidence that the City's
decision to hire Program Directors outside of the civil
service process had any connection to the filing of the
instant lawsuit. Id.

In reaching its conclusion that plaintiff's discrimination
claims were not viable, the District Court found that Dr.
Ross's alleged statement that the Program Director position
was reserved for the gay, white community did not entitle
plaintiff to a jury trial. According to the District Court, the
statement was "essentially factual rather than
discriminatory" because at the time Dr. Ross made the
comment, he had already concluded that Richard Scott
"was the best available person for the position[and] Mr.
Scott was a gay white man." Id. at *13. The District Court
further observed that, for a variety of reasons, it was
"virtually inconceivable" that Dr. Ross would have
intentionally discriminated against Hankins on the basis of
race. Id.

With respect to Hankins's S 1985(3) and civil conspiracy
claims against the City and the Union, the District Court
held that they could not survive summary judgment
because, among other reasons, there was no evidence that
any Union official entered into an agreement with the City
to deny Hankins an employment opportunity based on his
race. Id. at *14. The Court likewise rejected Hankins's
tortious interference with prospective business relations
claim against the Union because Hankins could not prove
that there was a reasonable probability that he would have
been selected for the Program Director position if not for
the allegedly wrongful conduct of the Union. Id. at *15.
Finally, the District Court dismissed plaintiff's fraud claim
against the Union because plaintiff "failed to produce
evidence to sustain a finding of detrimental reliance on or
actual damages caused by any statement or omission of the
union, fraudulent or otherwise." Id. Hankins appeals.

III. Jurisdiction & Standard of Review

The District Court exercised subject matter jurisdiction
pursuant to 28 U.S.C. SS 1331 and 1367. We have appellate

                               12
jurisdiction from the final order of the District Court under
28 U.S.C. S 1291.

We exercise plenary review over a grant of summary
judgment, using the same standards that the District Court
should have applied. Summary judgment should be granted
where "there is no genuine issue as to any material fact"
and "the moving party is entitled to a judgment as a matter
of law." Fed. R. Civ. P. 56(c); see also Marzano v. Computer
Science Corp. Inc., 91 F.3d 497, 501 (3d Cir. 1996). In
making its determination, the court should view the facts in
the light most favorable to the nonmoving party and draw
all inferences in that party's favor. Id. We have previously
observed that this standard is applied with " `added rigor in
employment discrimination cases, where intent and
credibility are crucial issues.' " Steward v. Rutgers, the State
University, 120 F.3d 426, 431 (3d Cir. 1997) (quoting
Robinson v. PPG Indus. Inc., 23 F.3d 1159, 1162 (7th
Cir.1994)).

With respect to the District Court's denial of plaintiff's
motion for sanctions, our standard of review is significantly
more deferential. We will reverse only if the decision
constituted an abuse its discretion, which in this context
would occur if the court "based its ruling on an erroneous
view of the law or a clearly erroneous assessment of the
evidence." Rogal v. American Broadcasting Companies, Inc.,
74 F.3d 40, 44 (3d Cir. 1996).

IV. Claims Against the City

A. Race Discrimination Claims

Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. S 2000e et seq., provides that "[i]t shall be an
unlawful employment practice for an employer -- to fail or
refuse to hire . . . any individual . . . because of such
individual's race." 42 U.S.C. S 2000e-2(a)(1). In the
employment discrimination context, this provision is
generally interpreted consistently with the analogous
section of the PHRA, see Gomez v. Allegheny Health
Services, Inc., 71 F.3d 1079, 1083-84 (3d Cir. 1995), and
with 42 U.S.C. S 1983, see McKenna v. Pacific Rail Service,
32 F.3d 820, 826 n.3 (3d Cir. 1994); cf. St. Mary's Honor

                                13
Center v. Hicks, 509 U.S. 502, 606 n.1 (1993) ("we shall
assume that the McDonnell Douglas framework is fully
applicable to racial-discrimination-in-employment claims
under 42 U.S.C. S 1983"). Accordingly, our analysis will be
the same under all three statutes.

A plaintiff can establish a discriminatory intent on the
part of her employer by direct or indirect means. See
Venters v. City of Delphi, 123 F.3d 956, 972 (7th Cir. 1997).
If, as is typically the case, the plaintiff's evidence is entirely
of an indirect nature, then in order to prevail she must
satisfy the familiar burden-shifting pretext framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)
and Texas Dep't of Community Affairs v. Burdine, 450 U.S.
248, 253-54 (1981). The mechanics of this approach have
been throughly discussed in many of our recent cases and
we need not recite it in full detail here. It suffices to say
that the plaintiff has the initial burden to establish a prima
facie case of discrimination, the substance of which will
vary depending on the type of claim; if the plaintiff is
successful, the employer must then articulate a legitimate,
non-discriminatory reason for the adverse employment
decision; once the employer does so, the plaintiff has the
burden of proving both that the employer's proffered
explanation was false, "and that discrimination was the real
reason." St. Mary's Honor Center, 509 U.S. at 512; see also
Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).

In those relatively infrequent instances where a plaintiff
has direct evidence of discriminatory intent, the case is
appropriately analyzed under the "mixed motives" analysis
established by the Supreme Court in Price Waterhouse v.
Hopkins, 490 U.S. 228, 258 (1989), as modified by S 107 of
the Civil Rights Act of 1991, 42 U.S.C. S 2000e-2(m) (the
"1991 Act").5 Under the modified Price Waterhouse
standard, a defendant is liable for discrimination upon
proof that a forbidden criterion (e.g., race) "was a
motivating factor for any employment practice, even though
_________________________________________________________________

5. We have held that S 107 of the 1991 Act does not apply retroactively.
See Hook v. Ernst & Young, 28 F.3d 366, 373 (3d Cir. 1994). Here,
however, the allegedly discriminatory action occurred in 1993 and after,
placing the case within the purview of S 107.

                               14
other factors also motivated the practice." 42 U.S.C.
S 2000e-2(m). Where an employer proves that it would have
taken the same adverse action against a plaintiff even if it
did not consider the forbidden factor, the plaintiff will be
precluded from seeking damages or reinstatement, but may
still be entitled to declaratory relief, certain injunctive relief,
as well as attorney's fees. See 42 U.S.C.S 2000e-5(g)(2)(B);
see also Woodson v. Scott Paper Co., 109 F.3d 913, 932 (3d
Cir. 1997) (noting that under the 1991 Act, an employer no
longer has complete defense to liability, as it did under
Price Waterhouse, by showing that it would have made the
same adverse employment decision in the absence of a
discriminatory motive); Armbruster v. Unysis Corp., 32 F.3d
768, 779 n.13 (3d Cir. 1994) (same).

Hankins first contends that the District Court erred by
analyzing his discrimination claims against the City solely
under a McDonnell Douglas-Burdine pretext analysis. He
argues that Dr. Ross's comment that the Program Director
position was "reserved for the gay, white community" is
sufficiently direct evidence of a discriminatory intent to
bring his case within the realm of Price Waterhouse.6
Hankins further asserts that the District Court's
characterization of Dr. Ross's statement as "essentially
factual rather than discriminatory," and the Court's
conclusion that it is "virtually inconceivable" that Dr. Ross
would discriminate against him are irreconcilable with a
court's duty on summary judgment to interpret the record
in a light most favorable to the non-moving party.

We have consistently held that a plaintiff who contends
that he or she has direct evidence of discrimination to
_________________________________________________________________

6. The record is not entirely clear to what extent Hankins pressed his
Price Waterhouse theory to the District Court. Waiver is not an issue
here, however, because an employment discrimination plaintiff is not
required to elect a pretext or Price Waterhouse theory at trial.
Armbruster, 32 F.3d at 781 n.17. Instead, the District Court "must
decide whether one or both theories properly apply at some point in the
proceedings prior to instructing the jury." Id. (citing Price Waterhouse,
490 U.S. at 247 n.12.). Likewise, before granting summary judgment and
removing a case from the hands of a jury, the District Court ought to
consider whether a plaintiff's claim would survive under either a pretext
or Price Waterhouse theory.

                                15
warrant treatment under Price Waterhouse faces a heavy
burden. See, e.g., Walden v. Georgia-Pacific Corp., 126 F.3d
506, 513 (3d Cir. 1997) ("a plaintiff must clear a high
hurdle to qualify for a mixed motives instruction"). Stray
remarks in the workplace, statements by non-
decisionmakers, or even statements by decisionmakers
unrelated to the decisional process itself, will not suffice to
trigger a Price Waterhouse analysis. See Starceski v.
Westinghouse Elec. Corp., 54 F.3d 1089, 1096 (3d Cir.
1995) (quoting Price Waterhouse, 490 U.S. at 277
(O'Connor, J., concurring)). Instead, the plaintiff must be
able to point to " `conduct or statements by persons
involved in the decisionmaking process that may be viewed
as directly reflecting a discriminatory attitude." Starceski,
54 F.3d at 1096 (quoting Miller v. CIGNA Corp ., 47 F.3d 586
(3d Cir. 1995) (en banc)); see also Armbruster, 32 F.3d at
778.

Although this standard is a stringent one, we agree with
Hankins that Dr. Ross's statement, if made, would
constitute direct evidence of discrimination. In stating that
the AACO Director position was "reserved for the gay, white
community," Dr. Ross in effect told Hankins that he was
disqualified from contention because he is black. In our
view, this would be a quintessential example of direct
evidence. See Venters, 123 F.3d at 973 ("The most obvious
and compelling example [of direct proof of discrimination]
would be a remark to the effect that `I won't hire you
because you are a woman' or `I'm firing you because you're
not a Christian.' "). Indeed, we would be hard pressed to
conceive of a statement that is more revealing of a
discriminatory attitude than the one plaintiff attributes to
Dr. Ross.

As mentioned, the District Court concluded that Dr.
Ross's comment was not significant because the statement
was "essentially factual rather than discriminatory."
Hankins, 1998 WL 175600 at *13. Apparently, the Court
believed that the comment merely reflected the fact that Dr.
Ross had already decided by the time he spoke with
Hankins that Richard Scott -- who just happened to be
white and gay -- was the best available person for the job.
Id. There are two major problems with this view. The first

                               16
is that it represents a rather conspicuous failure on the
part of the District Court to consider the evidence in a light
most favorable to plaintiff, the party responding to the
City's motion for summary judgment. Although the City
may certainly argue at trial that Dr. Ross's comment
revealed no discriminatory intent on his part, it is manifest
that a reasonable jury could reject such a selective
interpretation of the comment and instead decide that the
statement reflected Dr. Ross's intention to exclude all non-
white candidates from being considered for the Program
Director position.

The second flaw in the District Court's interpretation,
closely-related to the first, is that it has little, if any,
support in the record. The City has not suggested at any
point in this litigation that Dr. Ross uttered the comment
that plaintiff attributes to him, but that the statement
demonstrates no discriminatory intent. To the contrary,
and as the District Court recognized in its decision, the
City's litigation position is that Dr. Ross never made the
statement in the first place. At his deposition, Dr. Ross so
testified. Thus, we are presented with an oath against oath
situation: plaintiff swears that Dr. Ross told him that the
Program Director position was set aside for a white person,
and Dr. Ross swears that he said no such thing. It is
axiomatic that the finder of fact must resolve such conflicts
in testimony, not a court making a judgment as a matter of
law. See, e.g., Boyle v. County of Allegheny Pa., 139 F.3d
386, 393 (3d Cir. 1998) ("[A]t the summary judgment stage,
a court may not weigh the evidence or make credibility
determinations; these tasks are left to the fact-finder.")
(citation omitted).

The District Court apparently discounted the significance
of Dr. Ross's alleged statement because, in part, the Court
found it "virtually inconceivable that [Dr. Ross] would
intentionally discriminate against plaintiff because he is
black." Hankins, 1998 WL 175600 at *13. This was so,
according to the District Court, because: (i) Dr. Ross had
given plaintiff favorable treatment in the past, including
counseling him not to resign from the City and re-hiring
him after his resignation; (ii) Dr. Ross had previously
appointed Anola Vance, a black person, to become AACO

                               17
Director and had allegedly sought the application of other
minority candidates before selecting Richard Scott; and (iii)
Dr. Ross is himself an African-American. Id. We concede
that these arguments are all valid ones for the City to raise
in attempting to convince a trier of fact that plaintiff was
not the victim of intentional discrimination. Still, we cannot
agree that any of these points, assessed individually or
cumulatively, compels the conclusion that the City is
entitled to judgment as a matter of law.

We find especially troublesome the District Court's
implication that because Dr. Ross is black, he would not
have intentionally discriminated against another African-
American. The Supreme Court has long counseled against
such reasoning, explaining that "[b]ecause of the many
facets of human motivation, it would be unwise to presume
as a matter of law that human beings of one definable
group will not discriminate against other members of their
group." Castenda v. Partida, 430 U.S. 482, 499 (1977); see
also Onacle v. Sundowner Offshore Services, Inc., 118 S. Ct.
998, 1001 (1998). The evidence here, when viewed in a light
most favorable to plaintiff, demonstrates precisely why such
a presumption is unwarranted. Plaintiff's theory of the case
is not that he was the victim of racial animus or hatred on
the part of the City or its officials, but instead that he was
not permitted to compete for the Program Director position
because of racial politics. Specifically, plaintiff contends
that, as a result of the substantial political influence of
AIDS advocacy organizations affiliated with the white, gay
community, Dr. Ross was under pressure to select someone
who was both white and gay to become the next Program
Director. In support of his claim, plaintiff points not only to
Dr. Ross's comment, but also to, inter alia, the testimony of
David Fair, the former AACO Director who confirmed the
racial and political tensions surrounding the AACO and its
work, as well as Dr. Ross's awareness of such matters and
Richard Scott's reputation as a leader of the gay, white
community. Considering this evidence, we are unwilling to
say as a matter of law that because Dr. Ross may have
treated plaintiff well in the past (a proposition that itself is
subject to conflicting testimony), that he had previously
hired an African-American to become Program Director, and
that Dr. Ross is himself black, it is therefore impossible

                               18
that race was a motivating factor in Dr. Ross's decision to
hire Richard Scott instead of plaintiff.

The City argues that we should ascribe no significance to
Dr. Ross's statement because, even assuming that he had
a discriminatory intent, he was not the relevant
decisionmaker. According to the City, the record is
undisputed that Mark O'Connor, the City personnel analyst
who reviewed plaintiff's application, independently and
without instruction from Dr. Ross or anyone else
determined that plaintiff did not have the requisite
experience to become Program Director. We reject the
argument. There is overwhelming evidence in the record
that Dr. Ross, the Health Commissioner, had the authority
to select the Program Director. Indeed, Dr. Ross himself
testified that he selected Richard Scott to become Program
Director in February 1993, over three months before Mark
O'Connor ever even reviewed plaintiff's application for the
position. Moreover, at the time he made the selection, both
Dr. Ross and Richard Scott considered the appointment
permanent, notwithstanding the fact that the civil service
process for filling the position had not even been initiated.
Based on this evidence, a reasonable jury could determine
that Dr. Ross was the relevant decisionmaker, and that
Mark O'Connor's review and rejection of plaintiff's
application in June 1993, as well as the entire civil service
process for filing the Program Director position, was merely
an after-the-fact formality. We therefore find that plaintiff
has presented sufficient evidence "to permit the factfinder
to infer that [a discriminatory] attitude was more likely than
not a motivating factor in the employer's decision" to reject
plaintiff's application to become Program Director. Walden
v. Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir. 1997)
(internal quotation omitted).

The City argues that, notwithstanding this conclusion,
the District Court's decision to grant summary judgment on
plaintiff's race discrimination claims should still be affirmed
because the undisputed evidence in the record is that
plaintiff did not have the requisite qualifications to become
Program Director. The City contends, and the District Court
agreed, that plaintiff was ineligible to become Program
Director because he lacked the experienced required under

                               19
the civil service specifications (either the original
specifications or the specifications as amended in January
1993), and because he lacked permanent civil service
status when Richard Scott was officially appointed in July
1993. We disagree with the City and hold that there are
substantial and material factual disputes concerning
whether plaintiff had the necessary qualifications to become
Program Director.

The District Court accepted the City's argument that
Hankins could not have been appointed Program Director
because he did not have the supervisory experience
required under either set of civil service specifications. The
parties hotly contest this issue in their briefs; plaintiff
insists that he was qualified under either set of civil service
specifications, and the City, relying on Mark O'Connor's
evaluation of plaintiff's application, argues with equal vigor
to the contrary. We believe it unnecessary to decide who
has the best of this fight because it is premised on an
assumption that could be rejected by the trier of fact;
namely, that the civil service specifications did in fact
represent the essential qualifications for the Program
Director position. The City has admitted that, at the
direction of Dr. Ross, the specifications were broadened in
several respects to permit Richard Scott to qualify for the
position. It is also not disputed that had the specifications
not been changed, Richard Scott would not have been
eligible. A reasonable jury could properly infer from these
facts that had Dr. Ross been inclined to select plaintiff to
become Program Director instead of Scott, the City would
have amended the civil service specifications in such a
manner to allow Hankins, not Scott, to become eligible.
Having adjusted the civil service specifications to allow
Richard Scott to qualify for the position, we think it
somewhat disingenuous for the City now to argue that
those same specifications represented an immovable,
impenetrable bar to plaintiff's application. In any event, this
is surely an issue for the jury to resolve.

The City's final argument is that plaintiff was ineligible to
become Program Director because, at the time Richard
Scott was officially appointed to the position on July 19,
1993, plaintiff was a probationary employee without

                               20
permanent civil service status.7 The City contends, and the
District Court once again agreed, that the City's civil service
law prohibits the promotion of an employee who does not
have permanent civil service status and, therefore, plaintiff
could not have been appointed Program Director
notwithstanding any discriminatory intention on the part of
Dr. Ross. Plaintiff does not dispute that, at the time of
Richard Scott's appointment, he did not have permanent
civil service status. He argues instead that the civil service
regulations allow someone who was in his position-- a
former permanent civil service employee who had previously
resigned from the City and was then serving a probationary
period following reinstatement -- to be eligible for a
promotion. He refers us to Philadelphia Civil Service
Regulation S 9.026, which is captioned "Scope Of Promotion
Competition" and provides as follows:

       Competition in any promotional examination shall be
       open to employees with permanent Civil Service status
       in such classes and in such departments as the
       Director in his discretion shall determine. Employees
       serving in a probationary period as a result of
       reinstatement following previous service with permanent
       status may also be admitted, provided however, that
       such reinstated employees may not be certified for
       appointment until the probationary period has been
       completed.

App. at 172 (emphasis added).

The parties have not cited any judicial interpretations of
this provision by the Pennsylvania state courts, but we
agree with plaintiff that its plain meaning allows an
employee serving a probationary period following
reinstatement to be eligible for promotion, and that the
regulation merely prohibits such employees from being
officially certified until after the probationary period is
completed. Indeed, the City conceded this at oral argument.
_________________________________________________________________

7. Plaintiff was on probation because he had resigned from the City and
had been reinstated within one year. Under these circumstances,
Philadelphia civil service regulations required that he serve a six month
probationary period before resuming permanent civil service status. See
Phil. Civil Service Regulations SS 14.02 and 15.031, App. at 189-191.

                                21
The City counters that, notwithstanding the permissive
language of the regulation with respect to reinstated civil
service employees, it has been the consistent policy and
practice of the City's Personnel Department that individuals
may not be promoted unless they have permanent civil
service status within thirty days of the last date that
applications for the position are accepted. In support of
this, the City relies on an affidavit from the City's Personnel
Director, which states as much. We believe, however, that
the regulation itself, which carries the force of law, see
Walls v. City of Philadelphia, 646 A.2d 592, 595 (Pa.
Commmw. Ct.1994), and which clearly allows for a
reinstated probationary employee to be considered for a
promotion subject to final certification, must take
precedence over a purported policy and practice that is
apparently inconsistent with the regulation. Although our
dissenting colleague apparently disagrees with this
conclusion, she does not contest that, under the reinstated
employee provision of Regulation 9.026, Hankins was
eligible for a promotion.

In any event, the City's contention that permanent civil
service status was an essential, non-negotiable requirement
for the Program Director position is belied by the record of
this case. Since Richard Scott vacated the post in 1994,
three individuals -- Jesse Milan, Patricia Bass, and Joseph
Croneaur -- have served as Program Director (the latter two
as co-Program Directors), but none had permanent civil
service status at the time of his or her appointment. Given
this evidence, we are mystified by the dissent's repeated
assertion that there is a "lack of any evidence in the record
that the City had ever discarded" the permanent civil
service requirement. Dissent at 33; see also id. at 33
(referring to the "consistently applied prerequisite of
permanent civil service status"). We conclude that, at a
minimum, there are triable issues of fact as to whether
Hankins's lack of permanent civil service status rendered
him unqualified to become Program Director.8

(Text continues on page 25)
_________________________________________________________________

8. The dissent contends that the City was properly awarded summary
judgment on plaintiff's failure to promote claims because: (i) Hankins

                               22
was purportedly unqualified as a matter of law to become Program
Director, see dissent at 31-33, and (ii) an unqualified plaintiff cannot
under any circumstances maintain a cause of action for disparate
treatment, even where he has produced direct evidence that race was in
fact a motivating factor in an adverse employment decision, id. at 34-38.
For the reasons stated in the text, we respectfully disagree with the
first
half of the dissent's argument (concerning Hankins's qualifications), and
thus have no occasion to decide the merits of the second.

Because the issue may arise in a future case, however, Judge Cowen
notes his own disagreement with the dissent's interpretation of the Civil
Rights Act of 1991. In Price Waterhouse, 490 U.S. 228 (1989), the
Supreme Court held that when a disparate treatment plaintiff has proved
that a forbidden criterion was a motivating factor in an employment
action, "an employer shall not be liable if it can prove that, even if it
had
not taken [the forbidden criterion] into account, it would have come to
the same decision." Id. at 242. Congress believed that this holding
"severely undercut" the effectiveness of Title VII. H.R. Rep. 102-40(I) at
45, reprinted in 1991 U.S.C.C.A.N. at 583. The House Report explained:

       The Court's holding in Price Waterhouse severely undermines
       protections against intentional employment discrimination by
       allowing such discrimination to escape sanction completely under
       Title VII. Under this holding, even if a court finds that a Title
VII
       defendant has clearly engaged in intentional discrimination, that
       court is powerless to end that abuse if the particular plaintiff
who
       brought the case would have suffered the disputed employment
       action for some alternative, legitimate reason.

H.R. Rep. No. 102-40-(II) at 18, reprinted in   1991 U.S.C.A.A.N. at 711.

Accordingly, under the 1991 Act, "an unlawful employment practice is
established when the complaining party demonstrates that race, color,
religion, sex, or national origin was a motivating factor for any
employment practice, even though other factors also motivated the
practice." 42 U.S.C. S 2000e-2(m). In a departure from Price Waterhouse,
however, the 1991 Act also provides that when an employer proves that
it would have taken the same action in the absence of discrimination, a
plaintiff can still recover attorney's fees, costs, declaratory relief,
and
limited injunctive relief, 42 U.S.C. S 20005(g)(2)(B)(i), although he will
not
be entitled to damages, promotion, or reinstatement. 42 U.S.C.
S 20005(g)(2)(B)(ii).

In Judge Cowen's view, these provisions make it clear that a plaintiff
who produces direct evidence that discriminatory animus was a
motivating factor in an adverse employment decision is entitled to
survive summary judgment even when an employer can establish as a
matter of law that the plaintiff would have been subject to the same

                               23
employment decision in the absence of discrimination. As the Seventh
Circuit has explained:

       The upshot of these provisions is that once the plaintiff has
       presented evidence reasonably suggesting that her race, sex,
       religion, or national origin played a motivating role in her
discharge,
       summary judgment will rarely (if ever) be appropriate; for even if
the
       employer can eliminate all doubt at that point as to whether it
       would have taken the same action without considering the
       proscribed criterion, the plaintiff still might obtain limited
relief.

Venters v. City of Delphi, 123 F.3d 956, 973 n.7 (7th Cir. 1997).

Applying this rule to the instant case, Judge Cowen believes that, even
if the City could demonstrate that Hankins would not have been
appointed Program Director because of his lacking credentials, based on
the direct evidence of Dr. Ross's discriminatory intent, a factual dispute
would still remain as to whether Hankins's race was, in actuality, a
motivating factor in the City's decision not to appoint him. If a jury
decided that it was, in Judge Cowen's view, Hankins would still be
entitled to "declaratory relief, injunctive relief . . . and attorney's
fees and
costs directly attributable . . . to the pursuit of [the] claim," although
he
would not be entitled to damages, promotion, or payment. 42 U.S.C.
S 2000e-5(g)(2)(B).

Judge Cowen observes that the dissent avoids this result by reading a
"qualifications exception" into S 2000e-2(m) and S 2000e-5(g)(2)(B).
According to the dissent, even though the 1991 Act provides without
exception that an illegal employment practice is established upon proof
that "discrimination was a motivating factor in an adverse employment
action, " S 2000e-2(m), and that an employer may only limit the remedies
available to a plaintiff by showing that it would have taken the same
adverse employment action in the absence of a discriminatory motive,
Congress actually intended to deny any cause of action altogether to a
plaintiff who is not qualified for a given position. This is true,
according
to the dissent, even when that plaintiff has direct proof that an adverse
employment decision was in fact motivated by invidious discrimination
and not by the lack of qualifications. Thus, in the dissent's view, a
hypothetical minority job applicant who is told point-blank at an
interview that he is being denied the position because of his race is
entitled to no relief whatsoever, not even a declaratory order from a
court
prohibiting that employer from considering race in future employment
decisions, so long as the employer is able to establish, well after the
fact,
that the applicant would not have received the position in any event
because he lacked a particular job qualification. On the other hand,
according to the dissent, the same minority applicant with direct
evidence of discrimination would presumably be entitled to the limited
relief provided for in S 2000e-5(g)(2)(B) if the employer demonstrated
that

                               24
Accordingly, for the foregoing reasons, the District Court
erred in awarding summary judgment to the City on
plaintiff's race discrimination claims.9

B. Retaliation Claim

Plaintiff next argues that the District Court erred in
granting summary judgment to the City on his retaliation
claim. Under Title VII, it is illegal for an employer to
discriminate against an employee because "he has made a
charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this
chapter." 42 U.S.C. S 2000e-3(a). To establish a prima facie
case of retaliation under a pretext theory, a plaintiff must
show that (1) he was engaged in protected activity; (2) he
was subject to an adverse employment action subsequent
to or contemporaneously with such activity; and (3) there is
a causal link between the protected activity and the adverse
action. See Woodson v. Scott Paper Co., 109 F.3d 913, 920
(3d Cir. 1997). If the plaintiff succeeds, the production
burden shifts to a defendant to advance a legitimate, non-
retaliatory reason for its employment decision. Id. at 920
n.2. "The defendant's burden at this stage is relatively light:
it is satisfied if the defendant articulated any legitimate
reason" for the adverse decision. Id. If the defendant
satisfies its burden of production, the presumption of
discrimination drops from the case; to prevail, the plaintiff
must be able to demonstrate that defendant's proffered
reason is false and that discrimination was the real reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502,
512 (1993)).

Plaintiff contends that a reasonable jury could conclude
_________________________________________________________________

the applicant would not have received the job for some legitimate reason
unrelated to his qualifications. Judge Cowen believes that such a view is
inconsistent with the plain meaning of the 1991 Act and the intent of
Congress as demonstrated in the above quoted legislative history.

9. Because we conclude that, under a modified Price Waterhouse
analysis, plaintiff is entitled to a jury trial, we need not address his
alternative argument that he has made a sufficient showing to survive
summary judgment under the McDonnell Douglas pretext formula. Of
course, this does not preclude plaintiff from pursuing a pretext theory at
trial. See Armbruster, 32 F.3d at 781 n.17; see also supra note 6.

                                25
that the City has decided that it will not promote any Civil
Service employee -- including himself -- to become
Program Director while this litigation is pending. He points
to the fact that since Richard Scott was removed as
Program Director, Jesse Milan, Patricia Bass, and Joseph
Croneaur were all appointed to the position outside of the
civil service process, despite plaintiff's expressed interest in
the position.

We will assume arguendo that this minimal showing
satisfies the requirements of a prima facie case of
retaliation. But in response, Estelle Richman, the Health
Commissioner who appointed Milan, Bass and Croneaur,
has testified that she sought to appoint individuals to the
Program Director position outside of the civil service
process not to retaliate against plaintiff, but because, before
committing to a permanent civil service appointment, she
wanted to understand why the AACO was, in her view, a
dysfunctional agency. This explanation, which is legitimate
and non-retaliatory, satisfied the City's burden of
production. Plaintiff, in turn, has not pointed to any
evidence from which a fact finder could conclude that
Richman's reason is untrue or is otherwise a pretext for
discrimination.10 He is therefore not entitled to proceed on
this cause of action. We will affirm the District Court's
grant of summary judgment to the City on plaintiff's
retaliation claim.

V. Conspiracy Claims

Hankins next argues that he is entitled to a jury trial on
his claim that the Union and the City conspired to deprive
him of the Program Director position because of his race, in
violation of 42 U.S.C. S 1985(3) and state conspiracy law.11
_________________________________________________________________

10. Plaintiff contends that the City's Personnel Director, Linda Seyda,
admitted at her deposition that the City has a policy of not filling
positions that are the subject of pending litigation. Our review of her
testimony, however, indicates that she did not so testify.

11. 42 U.S.C. S 1985(3) prohibits a conspiracy formed "for the purpose of
depriving, either directly or indirectly, any person or class of persons
of
the equal protection of the laws, or of equal privileges and immunities
under the laws...."

                               26
To maintain a claim under 42 U.S.C. S 1985(3), a plaintiff
must establish: "(1) a conspiracy; (2) motivated by a racial
or class based discriminatory animus designed to deprive,
directly or indirectly, any person or class of persons ... [of]
the equal protection of the laws; (3) an act in furtherance
of the conspiracy; and (4) an injury to person or property or
the deprivation of any right or privilege of a citizen of the
United States." Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.
1997).

The conspiracy that plaintiff alleges between the City and
the Union is based on an alleged agreement between
Richard Scott, an employee of the Union, and Dr. Ross, the
City's Health Commissioner, to place Scott in the Program
Director position because of Scott's race. The record is
undisputed, however, that no Union official was aware that
Scott was planning to accept the position until after he had
already done so. In the absence of such knowledge on the
part of a Union official, a reasonable jury could not find
that Scott was acting as an agent of the Union in accepting
the Program Director position and resigning from the
Union. Therefore, plaintiff has failed to prove the existence
of a conspiracy between the Union and the City, an
essential element of his S 1985(3) claim.

Hankins's S 1985(3) claim also fails because there is no
evidence that anyone affiliated with the Union, including
Scott, sought to deny him the Program Director position
because of his race. Even if plaintiff could demonstrate that
Scott was acting on behalf of the Union in accepting the
Program Director position, Hankins has failed to show that
Scott did so with any intention of discriminating against
him. While a jury might find that Dr. Ross harbored an
improper motive in appointing Scott to the position, there is
no evidence that Scott shared that intention. Accordingly,
defendants are entitled to summary judgment on plaintiff's
S 1985(3) conspiracy claims.12
_________________________________________________________________

12. The parties have analyzed plaintiff's state law civil conspiracy claim
and his S 1985(3) claim under the same standards. Accordingly, we will
affirm the grant of summary judgment to the defendants on the state law
civil conspiracy claim as well.

                               27
VI. Remaining Claims

Plaintiff also presses his claim against the Union for
intentional interference with prospective contractual
relations. He maintains that had the Union not remained
silent while the City amended the civil service specifications
for the Program Director position, he would have been
appointed to the job.

Under Pennsylvania law, to establish intentional
interference with prospective contractual relations, a
plaintiff must prove: "(1) the existence of a contractual, or
prospective contractual relation between itself and a third
party; (2) purposeful action on the part of the defendant,
specifically intended to harm the existing relation, or to
prevent the prospective relation from occurring; (3) The
absence of a privilege or justification on the part of the
defendant; (4) the occasioning of actual legal damage as a
result of the defendants' conduct; and (5) . . . a reasonable
likelihood that the relationship would have occurred but for
the interference of the defendant." Brokerage Concepts, Inc.
v. U.S. Healthcare, 140 F.3d 494, 530 (3d Cir. 1998) (citing
Pelagatti v. Cohen, 536 A.2d 1337, 1343 (Pa. Super. Ct.
1988)).

The Union argues, and the District Court found, that
plaintiff failed to establish that there is reasonable
likelihood that he would have been appointed Program
Director but for the purported interference of the Union. We
agree. Viewing the evidence in a light most favorable to
plaintiff, a reasonable jury could not find that had the
Union objected to the amendments of the civil service
specifications, there is a reasonable probability that
Hankins would have been selected Program Director. As
plaintiff concedes, Program Director was not one of the
positions covered by the collective bargaining agreement
between the City and the Union. Therefore, the Union
would not have had standing to object to an amendment of
the Program Director civil service specifications. Plaintiff
nonetheless insists that the Union had the authority to
object to any change in the civil service specifications that
affected its members; he cites Cathy Scott's preliminary
investigation into Richard Scott's appointment as evidence
of this fact. Even if plaintiff is correct, however, a fact finder

                               28
would be engaging in speculation to assume that the City
would not have amended the specifications if the Union had
lodged an objection related to a non-bargaining unit
position.

Furthermore, even if the Union could have prevented the
City from amending the specifications, it does not then
follow that there is a reasonable likelihood that plaintiff
would have been appointed Program Director. Although
Richard Scott may not have been selected if the
specifications were left unaltered, there is no way of
knowing who would have been appointed in his place.
Accordingly, plaintiff's intentional interference with
prospective business relations claim against the Union
must fail.

Plaintiff's fraudulent misrepresentation claim against the
Union is also deficient.13 He alleges that Patricia Walden, on
behalf of the Union, committed fraud by assuring him that
the Union would investigate Richard Scott's appointment as
Program Director and then informing him approximately
two months later that it was too late for the Union to take
any action. Plaintiff has made no showing, however, that
Walden acted with an intent to defraud or that any
statement that she made proximately caused an injury that
he suffered. We will therefore affirm the District Court on
this count as well.

VII. Motions for Sanctions

Finally, plaintiff has appealed the District Court's denial
of his motion for sanctions against the City. With respect to
the three incidents of alleged misconduct cited by plaintiff,
the District Court found that the City's counsel did not
improperly attempt to influence Dr. Ross during his
deposition, that David Fair was not threatened with
_________________________________________________________________

13. To sustain his fraud claim, plaintiff must prove by clear and
convincing evidence that (i) the defendant fraudulently made a
misrepresentation with an intent to induce plaintiff to act thereon; (ii)
that plaintiff justifiably relied on the misrepresentation; and (iii) that
he
sustained actual damages as a proximate result. See Tunis Bros. Co. v.
Ford Motor Co., 952 F.2d 715, 731 (3d Cir. 1991).

                               29
retaliation by the City's counsel, and that the City's counsel
did not act improperly in investigating plaintiff's
background in South Carolina. Having thoroughly reviewed
the record related to each of these incidents, we cannot
conclude that the District Court's factual findings are
clearly erroneous or that its refusal to impose sanctions
was otherwise an abuse of discretion. Accordingly, we will
affirm the District Court's order denying plaintiff's motion
for sanctions.

VIII. Conclusion

For the foregoing reasons, we will reverse the District
Court's grant of summary judgment to the City on plaintiff's
race discrimination claims, but will affirm the judgment in
favor of the City on plaintiff's retaliation, S 1985(3), and
state law conspiracy claims. We will also affirm in all
respects the District Court's grant of summary judgment to
the Union, as well as the District Court's denial of plaintiff's
motion for sanctions against the City.

Each party to bear its own costs.

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SLOVITER, Circuit Judge, dissenting.

I agree with the majority that, viewing the record in the
light most favorable to plaintiff as we are required to for
purposes of summary judgment, we must regard the
statement allegedly made by Dr. Ross as direct evidence of
discriminatory animus. I part from the majority, however,
because I believe the majority has erred in disregarding the
significance of Hankins' failure to meet one of the objective
minimum qualifications for the job he sought.

The key to the District Court's grant of summary
judgment was its determination that Hankins had not
produced evidence to show that he was qualified for the
position of Director of the AIDS Activities Coordination
Office ("AAOC") (referred to by the District Court as
"Program Director"). The majority holds that"there are
substantial and material factual disputes concerning
whether plaintiff had the necessary qualifications to become
Program Director," Maj. Op. at 20, a conclusion with which
I disagree.

I would uphold the District Court's conclusion that
Hankins "plainly lacked the qualifications for the position,"
Hankins v. City of Philadelphia, Civil Action No. 95-1449,
slip op. at 28 (E.D. Pa. 1998), because it was based on
uncontroverted evidence in the record (1) that one of "the
primary requirement[s] of both [the] Promotional
Opportunity Announcements [was] that the applicant have
permanent Civil Service status within thirty days of the
closing date of the announcement," id. at 24-25, and (2)
that Hankins "did not and within thirty days could not have
permanent Civil Service status," id. at 28. The applicable
Civil Service regulation, Regulation 9.026, made promotion
open "to employees with permanent Civil Service status."
Hankins conceded that he lacked such status at the
relevant time. For me, that is dispositive.

Undaunted by these plain facts, Hankins made several
arguments why he should nevertheless have been
appointed Program Director. First, Hankins argued that he
could have taken the examination for Program Director
while on probationary status and the City could have either
temporarily appointed him or waited to appoint him until

                               31
after he achieved permanent status. Second, Hankins
argued that, as a reinstated employee, he should have been
deemed eligible to take the examination for Program
Director when the position was posted and then "certified"
when he achieved permanent Civil Service status on
September 1, 1993. Finally, Hankins argued that the City
routinely manipulated the Civil Service regulations and
should not be permitted to shield behind them.

The City was not required to excuse Hankins from the
qualifications for Program Director unless it would
ordinarily have excused other candidates from these
qualifications under similar circumstances. As the District
Court concluded, Hankins failed to present any competent
evidence to suggest that the City would have excused other
candidates from the permanent Civil Service status
requirement. Hankins contends that the City frequently
holds positions open or crafts temporary appointments to
allow a candidate to achieve permanent Civil Service status,
but he did not submit any evidence to support this
contention.

Moreover, the Personnel Director of the City testified that
it is consistent City policy and practice not to appoint
persons if they do not have permanent Civil Service status
and that individuals may not compete unless they meet the
qualifications within 30 days of the closing date for
applications, which Hankins was unable to do because the
closing date for the position was June 30, 1993, and
Hankins' probationary period ended August 31, 1993. The
District Court also found that Hankins "present[ed] . . . no
competent evidence to substantiate his . . . accusation that
the City routinely manipulates Civil Service Regulations to
achieve illicit goals." Id. at 26. This is enough to support
the District Court's grant of summary judgment, without
considering the City's contention that Hankins also lacked
the necessary experience.

The majority reasons that because the Civil Service
specifications "were broadened in several respects to permit
Richard Scott to qualify for the position," a jury could infer
that had the City wanted to select Hankins, it "would have
amended the civil service specifications in such a manner
to allow Hankins, not Scott, to become eligible." Maj. Op. at

                                32
20. The weak spot in the majority's "amend at will"
approach is the lack of any evidence in the record that the
City had ever discarded the requirement that the applicant
have permanent Civil Service status,14 a requirement that
Hankins did not satisfy at the time in question.

Hankins does not suggest that Scott lacked permanent
Civil Service status, and the majority acknowledges that
Scott had that status. Maj. Op. at 8. The changes in job
qualifications that were made to enable Scott to qualify
permitted a candidate to substitute a bachelor's degree and
three years of experience administering a "national
HIV/AIDS program" for the requirement of a master's
degree and three years of second-level supervisory
experience. The City's willingness to permit candidates to
substitute what appears to be an equivalent experience to
meet this requirement does not support the majority's
conclusion that the City was flexible at will about the
requirement of permanent Civil Service status.

Moreover, the changes in job description requirements
were not made at the will of the personnel department.
Instead the substitutions had to be and were approved by
the Civil Service Commission before they were made and
before Scott resumed his employment with the City.
Hankins offered no evidence to suggest that the Civil
Service Commission would revise or delete the consistently
applied prerequisite of permanent Civil Service status. In
contrast, the City offered evidence that it had never done
so. I would therefore uphold the District Court's decision to
grant summary judgment on the issue of Hankins'
qualifications.

One of the prerequisites of a plaintiff's Title VII case
based on disparate treatment is a showing that plaintiff
_________________________________________________________________

14. There is no reason for the majority to be mystified by this assertion.
Because of the pendency of this lawsuit, the City was understandably
reluctant to find a permanent replacement. Jesse Milan was never
employed by the City, having been on loan from Temple University. The
other two individuals referred to by the majority, Patricia Bass and
Joseph Cronauer, were hired on a contract basis. None of these
individuals were hired at time Hankins had applied or Scott had been
given the position.

                               33
was qualified for the position at issue, irrespective of which
of the two different types of disparate treatment cases
plaintiff falls within: the McDonnell Douglas-Burdine or
pretext cases on the one hand or the Price Waterhouse or
"mixed-motives" cases on the other. "[W]hether a plaintiff
has presented a pretext or a mixed-motives case depends
on the quality of the evidence that the plaintiff adduces in
support of the claim of illegal discrimination." Walden v.
Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir. 1997). For
a case to be treated as a mixed-motives case, "the evidence
must be such that it demonstrates that the `decisionmakers
placed substantial negative reliance on an illegitimate
criterion in reaching their decision.' " Id.

Qualification for the position at issue is unquestionably
one of the elements of a prima facie case for employment
discrimination under the McDonnell Douglas-Burdine line of
cases. See, e.g., Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). "The burden of
establishing a prima facie case of disparate treatment is not
onerous. The plaintiff must prove . . . that she applied for
an available position for which she was qualified, but was
rejected under circumstances which give rise to an
inference of unlawful discrimination." Id. at 253 (emphasis
added).

I believe that a plaintiff is required to show at least as
much to shift the burden of proof to the defendant under
the Price Waterhouse line of cases. We have described the
showing that a Price Waterhouse plaintiff must make as "a
high hurdle," Walden, 126 F.3d at 513, and remarked that
such a plaintiff "must produce . . . more direct evidence
than is required for the McDonnell Douglas/Burdine prima
facie case," Starceski v. Westinghouse Elec. Corp., 54 F.3d
1089, 1096 n.4 (3d Cir. 1995). Although this language,
reasonably construed, requires the plaintiff in a Price
Waterhouse case to satisfy the additional requirement of
submitting direct evidence of discriminatory animus, it does
not mean that the plaintiff in such a case is excused from
the McDonnell Douglas-Burdine requirement that she prove
that she was a qualified candidate. As noted above, the
Supreme Court has commented that this burden is"not
onerous."

                               34
I note that there is nothing in the 1991 amendments to
Title VII, embodied in the Civil Rights Act of 1991, that
suggests that a Price Waterhouse plaintiff need not be an
objectively qualified candidate to survive summary
judgment.

The 1991 Act arose from efforts to overturn the result of
several Supreme Court decisions that members of Congress
believed were inconsistent with Title VII's goal of eradicating
discrimination. One of the decisions explicitly targeted was
Price Waterhouse.15 In that case, a woman whose candidacy
for partnership in an accounting firm had been placed on
hold sued under Title VII and produced evidence showing
that reviews from male partners containing sex
stereotypical judgments had played a role in that decision;
her employer produced evidence showing that she would
have been denied that partnership even in the absence of
discrimination.

The Supreme Court, in a plurality decision, held that
"when a plaintiff . . . proves that her gender played a
motivating part in an employment decision, the defendant
may avoid a finding of liability . . . by proving by a
preponderance of the evidence that it would have made the
same decision even if it had not taken the plaintiff's gender
into account." 490 U.S. at 258. The Supreme Court's
decision thus concerned the elements of a defendant's
affirmative defense of mixed motives rather than the
elements that a plaintiff must prove as part of her initial
showing before the burden is shifted to the defendant, the
issue facing this court here. Its discussion assumed that
the plaintiff had already both proven the equivalent of a
prima facie case under McDonnell Douglas and Burdine,
presumably including objective qualification, and submitted
direct evidence of discrimination.
_________________________________________________________________

15. Another decision targeted, Wards Cove v. Antonio, 490 U.S. 642
(1989), was viewed as retreating from the disparate impact decision in
Griggs v. Duke Power Co., 401 U.S. 424 (1971), and Albermarle Paper Co.
v. Moody, 422 U.S. 405 (1975), by placing the burden on the plaintiff to
demonstrate which criteria within a multi-factor employment practice
have a disparate impact. Section 105 of the 1991 Act sought to restore
the business necessity defense to its pre-Wards Cove status by
amending 42 U.S.C. S 2000e-2.

                               35
The House Report which constitutes the legislative
history of the 1991 Act, H.R. Rep. No. 102-40(I) (1991),
reprinted in 1991 U.S.C.C.A.N. 549, confirms that
Congress, too, was concerned with the defendant's
affirmative defense, not the plaintiff's initial burden of
proof. The Report opined that the inevitable result of the
Price Waterhouse decision would be to permit employment
discrimination prohibited under Title VII to escape
sanction. Id. at 584. In response, Congress enacted the first
of the 1991 amendments relevant here which added to the
earlier statutory provision making it an unlawful
employment practice to reach decisions based on race or
one of the other prohibited considerations the language
"even though other factors also motivated the practice." 42
U.S.C. S 2000e-2(m).

The House Report also expressed disapproval of the lack
of a remedy in a mixed motive case. It noted that, because
of the Price Waterhouse decision, an employer whose
employment decision was motivated in part but not
exclusively by an illegitimate consideration could not even
be enjoined from utilizing the same illegitimate
consideration in future decisions. See id. at 585 (citing as
illustrative EEOC v. Alton Packaging Corp., 901 F.2d 920
(11th Cir. 1990)). This led to the second amendment, which
amended the remedy provision of the statute to provide that
if an impermissible consideration was a motivating factor in
the employment decision, the plaintiff could still be entitled
to "declaratory relief, injunctive relief . . . and attorney's fees
and costs demonstrated to be directly attributable . . . only
to the pursuit of a [Title VII] claim," but not damages. 42
U.S.C. S 2000e-5(g).

In its discussion of the necessity of these amendments,
the House Report assumes that plaintiff has already met
her burden of proof, which I believe includes a showing that
she possessed the objective minimum qualifications for
employment in the position she sought. Nothing in the
House Report suggests that the two amendments directed
to the Price Waterhouse decision were meant to relieve
plaintiff of the burden of showing that she possessed those
objective qualifications, a burden established by the
Supreme Court prior to Price Waterhouse. To the contrary,

                               36
Congress defined its intent in adopting the 1991 legislation
as "to restore Title VII's comprehensive ban on all
impermissible considerations of race, color, religion, sex or
national origin in employment." Id. at 585-86 (first
emphasis added).

It follows that a plaintiff who patently failed to show that
s/he has the minimum qualifications for the position could
not proceed to trial on a Title VII claim either before or after
the Civil Rights Act of 1991. My colleague Judge Cowen
spins an unrealistic hypothetical web (i.e. a "minority job
applicant who is told point blank at an interview that he is
being denied the position because of his race") in an
attempt to show that an applicant who patently was lacking
the essential objective qualifications needed for the position
at issue can nonetheless proceed to trial because of that
Act. I do not agree.

The case Judge Cowen cites, Venters v. City of Delphi,
123 F.3d 956 (7th Cir. 1997), makes no reference to the
plaintiff's objective qualifications or lack thereof. Instead, in
Venters the defendant countered plaintiff's claim that she
was terminated on account of her religion in violation of
Title VII by attempting to show that it was plaintiff's
performance, which the defendant claimed was deficient,
that led to her termination. Id. at 964. Venters illustrates
the paradigmatic mixed-motive case to which the
amendments apply -- where each party offers a subjective
reason for the employment decision -- one legitimate and
one discriminatory. In such cases, the parties typically do
not contest whether plaintiff meets the objective minimum
requirements for employment in the position.

The weakness of Judge Cowen's position is further
illustrated by a not unrealistic hypothetical. Assume that
applicable state law requires that all law enforcement
officers be at least 21 years of age. May an 18-year old
female applicant, whose application for employment with a
township police department was denied, proceed to trial on
the strength of evidence that the Township Police Chief has
openly expressed his view that women should not be hired
as police officers because they do not have the strength
necessary to do the work required by the police
department? I would suggest that the only rational answer

                               37
is no. The hypothetical situation is not dissimilar to that
here -- a remark has been made that can be deemed
evidence of discriminatory motive and the plaintiff fails to
satisfy an objective qualification for the position. I do not
believe that Congress anticipated that a plaintiff who
patently failed to show that s/he has the minimum
qualifications for the position could proceed to trial because
of the Civil Rights Act of 1991.

Because Hankins failed to satisfy an objective
qualification for the Program Director position, I would
affirm.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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