                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-1-2007

Foxworth v. PA State Pol
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5571




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                                                                NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 05-5571


                          RODERICK FOXWORTH, JR.,

                                                    Appellant

                                         v.

            PENNSYLVANIA STATE POLICE; TERRY MCELENY;
              STEVEN M. MCDANIELS; LINDA M. BONNEY;
                         JEFFREY MILLER




                    Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                        (D.C. Civil Action No. 03-cv-06795)
                   District Judge: Honorable Michael M. Baylson


                    Submitted Under Third Circuit LAR 34.1(a)
                                January 16, 2007

            Before: McKEE, AMBRO and STAPLETON, Circuit Judges

                          (Opinion filed February 1, 2007)


                                     OPINION


AMBRO, Circuit Judge

     Roderick Foxworth appeals the District Court’s rejection of his employment
discrimination claim. For the reasons set forth below, we affirm.

                                             I.

        We mention only the facts relevant to our decision. Foxworth is a black male who

applied for a state trooper position with the Pennsylvania State Police (PSP). After

scoring well on the qualifying exam, he was given a conditional job offer. In part, the

offer was subject to the PSP’s written policy requiring automatic disqualification of cadet

candidates with prior “criminal conviction[s]” or certain acts of “criminal misbehavior.”

        The police background check of Foxworth’s criminal history returned satisfactory

results. But his answers to the application questionnaire did not. The questionnaire asked

him to answer whether he had “ever had a record expunged” and to “list details of any

criminal charges or activity alleged or engaged in.” Foxworth answered “yes” to the

expungement question and explained that he had stolen $4,000 from a former employer in

1998. When the police arrested him for the theft, he admitted to the crime, and—as a

first-time offender—was entered into a program whereby his record was expunged after

he successfully completed a two-year probationary period.1 Foxworth offered the same

information in the “Polygraph Screening Booklet,” which informed applicants about

automatic disqualifying factors. Upon reading his application and at the direction of the

Director of Employment Services at the PSP, one of the troopers informed Foxworth that

he would be disqualified from the position because of the 1998 theft and advised him to



  1
      The program is called “Accelerated Rehabilitative Disposition” or “ARD.”

                                             2
withdraw his application or face disqualification from all other state trooper positions.

        Foxworth withdrew. But he challenged the decision in federal district court with

two claims under 42 U.S.C. § 1983.2 He claimed that the PSP infringed on his Fourteenth

Amendment rights to substantive and procedural due process, as well as equal protection,

because the automatic disqualification procedure was improper both facially and as

applied to him. Under Title VII of the Civil Rights Act of 1964 he alleged that, because

of his race, the PSP discriminated against him in the cadet hiring process. The District

Court granted the PSP summary judgment on all of Foxworth’s claims. He filed a motion

for reconsideration, and the District Court denied it.

        Foxworth appeals to us, reasserting two claims and raising a third. He argues that

the District Court erred in granting summary judgment to the defendants with respect to

the § 1983 procedural due process claim and the Title VII employment discrimination

claim; he also contends that the Court erred in denying reconsideration of the summary

judgment order.3


    2
    Foxworth also advanced a third race discrimination claim pursuant to 42 U.S.C.
§ 1981, but the Court treated this count as merged into the § 1983 claims.
3
  The District Court had subject matter jurisdiction under Title VII, 42 U.S.C. § 2000e-
5(f)(3), and 28 U.S.C. § 1331. We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291. Our review of the District Court’s grant of summary judgment is plenary, and we
apply the same standard the Court should have applied. See, e.g., Slagle v. County of
Clarion, 435 F.3d 262, 263 (3d Cir. 2006). Namely, a grant of summary judgment is
proper where, viewing the facts in the light most favorable to the non-moving party, that
party has established that there is no genuine dispute of material fact and “is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

                                              3
                                             II.

       As for his procedural due process claim, Foxworth argues that he had a state-

conferred property interest in being hired by the PSP. To prevail, he must demonstrate

that the PSP deprived him of a state-sponsored property entitlement without first

providing him with the requisite level of process. See Bd. of Regents of State Colleges v.

Roth, 408 U.S. 564, 569–70 & n.2 (1972). Accordingly, we begin by inquiring whether a

property interest existed. “To have a property interest in a job[,] . . . a person must have

more than a unilateral expectation of continued employment; rather, he must have a

legitimate entitlement to such continued employment.” Hill v. Borough of Kutztown, 455

F.3d 225, 234 (3d Cir. 2006) (citations omitted). Whether such a claim exists is

determined by state law. Id.

       Under Pennsylvania law, public employees are employees at-will, with no

protected property interest in their employment unless the state legislature specifically

creates one. Hill, 455 F.3d at 234; Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005);

Davenport v. Reed, 785 A.2d 1058, 1063 (Pa. Cmwlth. 2001). The law makes clear that

cadet candidates have no property interest in trooper or police positions. See Anderson v.

City of Phila., 845 F.2d 1216, 1221 (3d Cir. 1988) (city police applicant); Snisky v. Pa.

State Police, 799 A.2d 961, 964 (Pa. Cmwlth. 2002) (state police cadet candidate).


To prevail on a motion for summary judgment, the non-moving party needs to set out
specific facts showing a genuine issue of fact for trial. See Fed. R. Civ. P. 56(e). We will
only reach the challenge to the denial of the motion to reconsider if we find Foxworth’s
claims to be meritorious.

                                              4
         Notwithstanding this general rule, Foxworth argues that 18 Pa. Const. Stat.

§§ 9124 and 9125 create a property interest in the job he sought. Both provisions are off

point. Section 9124 prohibits government agencies from denying an “application for a

license, certificate, registration or permit” where there has been no conviction or on the

basis of annulled or expunged convictions. 18 Pa. Const. Stat. § 9124.4 Under

Pennsylvania caselaw, § 9124 applies only to government licensing agencies. See, e.g.,
4
    The provision reads in part as follows:

         § 9124. Use of records by licensing agencies

         (a) State agencies.—Except as provided by this chapter, a board, commission or
         department of the Commonwealth, when determining eligibility for licensing,
         certification, registration or permission to engage in a trade, profession or
         occupation, may consider convictions of the applicant of crimes but the
         convictions shall not preclude the issuance of a license, certificate, registration or
         permit.

         (b) Prohibited use of information.—The following information shall not be used in
         consideration of an application for a license, certificate, registration or permit:
                 (1) Records of arrest if there is no conviction of a crime based on the arrest.
                 (2) Convictions which have been annulled or expunged.
                 (3) Convictions of a summary offense.
                 (4) Convictions for which the individual has received a pardon from the
                 Governor.
                 (5) Convictions which do not relate to the applicant's suitability for the
                 license, certificate, registration or permit.
         (c) State action authorized.—Boards, commissions or departments of the
         Commonwealth authorized to license, certify, register or permit the practice of
         trades, occupations or professions may refuse to grant or renew, or may suspend or
         revoke any license, certificate, registration or permit for the following causes:
                 (1) Where the applicant has been convicted of a felony.
                 (2) Where the applicant has been convicted of a misdemeanor which relates
                 to the trade, occupation or profession for which the license, certificate,
                 registration or permit is sought.


                                                5
Schmidt v. Deutsch Larrimore Farnish & Anderson, 876 A.2d 1044, 1047 (Pa. Super.

2005). This provision does not apply to police agencies because trooper applicants like

Foxworth do not apply for licenses. See Poliskiewicz v. East Stroudsburg Univ., 536

A.2d 472, 474 (Pa. Cmwlth. 1988). Moreover, there is no property entitlement here

because trooper applicants cannot legitimately expect ARD expungements to remain

private and unavailable to the police. See Schmidt, 876 A.2d at 1048 (“[W]hile the formal

criminal history record information that is compiled by state criminal justice agencies

indeed constitutes private facts, the fact of an arrest . . . does not.”); see also Puricelli v.

Borough of Morrisville, 820 F. Supp. 908, 918 (E.D. Pa.1993) (“[E]ven where an arrest

record has been expunged, it still remains on court records and in police blotters, and, it

never truly is removed from the public record, thus it is not entitled to privacy

protection.”).

         Section 9125 limits employers’ use of information about an applicant’s criminal

history files “only to the extent to which they relate to the applicant’s suitability for

employment in the position for which he has applied.” 18 Pa. Const. Stat. § 9125.5 It is

5
    This provision states in relevant part:

         § 9125. Use of records for employment

         (a) General rule.—Whenever an employer is in receipt of information which is part
         of an employment applicant's criminal history record information file, it may use
         that information for the purpose of deciding whether or not to hire the applicant,
         only in accordance with this section.

         (b) Use of information.—Felony and misdemeanor convictions may be considered

                                                6
true, as Foxworth contends, that this section allows employers to consider, when relevant

in hiring decisions, convictions but not arrests. Tilson v. School Dist. Of Phila., Civ. A.

No. 89-1923, 1990 WL 98932, at *4 (E.D. Pa. July 13, 1990), aff’d, 932 F.2d 961 (3d Cir.

1991). However, as the District Court noted, the statute and its limitation relate to an

“employment applicant’s criminal history record information file.” 18 Pa. Const. Stat.

§ 9125 (emphasis added). Foxworth’s case was expunged from his file, but the PSP

obtained its information from Foxworth himself on the application, not from its criminal

history background check, which came up clean. The record indicates that a PSP trooper

advised him to withdraw his application because of the prior “criminal misbehavior” he

listed on the application, not because of any prior arrest from his file.

       Foxworth further claims that Cisco v. United Parcel Serv., Inc., 476 A.2d 1340

(Pa. Super. 1984), interpreted § 9125 to mean that employers may not consider criminal

behavior in the hiring process. Yet, the Cisco Court affirmed the dismissal of an

employee who was arrested but not convicted for stealing because of the nature of the

delivery job. Id. at 1344. (“[J]obs are lost when the employer, for a legitimate business

reason, cannot risk even someone under suspicion of having committed theft and trespass

when the nature of its business is to enter onto the premises of others and to deliver

parcels which belong to them.”). Cisco therefore does not aid Foxworth’s attempt to

convince us to reverse. Furthermore, it proves similarly unhelpful to his claims in our

       by the employer only to the extent to which they relate to the applicant's suitability
       for employment in the position for which he has applied.


                                               7
assessment whether the PSP’s policy arose from a legitimate business necessity (as

discussed below with respect to the disparate impact claim).

       In sum, neither § 9124 nor § 9125 confer a property interest that the PSP violated

here. Moreover, these statutes place limits on licensing agencies and other employers

with respect to criminal history files, but do not prohibit employers from considering

criminal misbehavior as disclosed on an application. Without a property right to

employment with the PSP, Anderson has no basis for a procedural due process claim.

                                              III.

       Foxworth also alleges that the Court erred by granting summary judgment to

defendants on his disparate impact and disparate treatment claims. Under Title VII, an

employer cannot “fail or refuse to hire . . . any individual, or otherwise [] discriminate

against any individual with respect to . . . terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.

2000e-2(a)(1). Also under Title VII, a plaintiff can establish a prima facie case of

disparate impact by demonstrating that facially neutral hiring policies have a disparate

impact on a protected class of people, that is, that they “are facially neutral in their

treatment of different groups but that in fact fall more harshly on one group than another

and cannot be justified by business necessity.” Raytheon Co. v. Hernandez, 540 U.S. 44,

52 (2003) (quotations omitted); see also Wards Cove Packing Co. v. Atonio, 490 U.S.

642, 645–646 (1989), superseded by statute on other grounds, Civil Rights Act of 1991,



                                               8
§ 105, 42 U.S.C. § 2000e-2(k). To meet this burden, it is not enough for a plaintiff to

show “that there are statistical disparities in the employer’s workforce;” rather a plaintiff

must also prove causation,

       that is, the plaintiff must offer statistical evidence of a kind and degree sufficient
       to show that the practice in question has caused the exclusion of applicants for jobs
       or promotions because of their membership in a protected group. . . [ and]
       statistical disparities must be sufficiently substantial that they raise such an
       inference of causation.

Watson v. Fort Worth Bank & Trust, 477 U.S. 977, 994–95 (1988).

       If a plaintiff is able to establish a prima facie case, the burden shifts to the

employer to show that the employment practice is “job related for the position in question

and consistent with business necessity. . . .” 42 U.S.C. § 2000e-2(k)(1)(A)(i). Should the

employer meet this burden, a plaintiff may still prevail if he or she can show that an

alternative employment practice has a less disparate impact and would also serve the

employer's legitimate business interest. See Albemarle Paper Co. v. Moody, 422 U.S.

405, 425 (1975).

       Foxworth presented three pieces of statistical evidence to establish a prima facie

case of disparate impact: (1) a “Work Force Analysis 2005 Summary,” which shows low

percentages of blacks among both civilian and trooper employees; (2) an “Incumbency v.

Estimated Availability 2005 PSP Detail” survey, showing an incumbency percentage of

6.94 blacks against an availability percentage of 13.82 as indication of a racial disparity in

hiring practices and a demonstration of adverse effect of the automatic disqualification



                                               9
procedure; and (3) the deposition of PSP Director of Human Services Linda Bonney, who

stated that the percentage of black recruits had decreased from 13% to 2–3% since the

Bolden Consent Decree 6 ended in 1999 and the automatic disqualification policy began in

1997.

        The District Court acknowledged that Foxworth’s statistics showed a disparity, but

concluded that they were insufficient as a matter of law to prove that the automatic

disqualification policy caused it. Moreover, it observed, the statistics showed a disparity

among the police force and staff, but failed to reveal information specific to cadet

applicants. The Court went on to state that even if Foxworth could point to a causal link

between the policy and the disparity, the policy likely would meet the requirements of a

business necessity justification under caselaw. It cited Clinkscale v. City of Phila., No.

97-2165, 1998 WL 372138 (E.D. Pa. June 16, 1998), where a plaintiff, who had been

acquitted for assaulting a police officer and had his record expunged, challenged the

Philadelphia Police Department’s policy of excluding applicants on the basis of prior

arrests without convictions on a Title VII disparate impact claim. Similar to the Cisco

Court, the Clinkscale Court granted summary judgment to the Police Department on the

ground that the practice was justified by business necessity. Id. at *1–2. Comparing

Clinkscale to Foxworth’s case, the District Court determined that the disqualification



  6
    The Bolden Consent Decree was the result of a class action suit against the PSP in
1977. The Decree instituted measures to redress the dearth of African American cadets
being recruited by the PSP.

                                             10
factors would serve important business purposes: ensuring public safety and respect for

the law.

       We agree with the Court’s analysis. Moreover, we note that to raise an inference

that the disqualification procedure causes racial disparity among the cadet pool, Foxworth

needed to demonstrate at a minimum that there is an actual disparity among cadets and

compare pre-1997 figures (when the PSP instituted the disqualification procedures) to

post-1997 figures for cadet hiring. Alternatively, under Albemarle Paper Co., he could

have argued that an alternative employment practice has a less disparate effect that would

serve the PSP’s legitimate business interest in a non-discriminatory way. He has not done

so.

       As for Foxworth’s disparate treatment claim, we apply the familiar McDonnell-

Douglas burden-shifting framework by which Foxworth must make out a prima facie

case of discrimination. See McDonnell Douglas v. Green, 411 U.S. 792 (1973). This

framework requires a showing that Foxworth (a) was a member of a protected class, (b)

was qualified for the trooper position, and (c) another, not in the protected class, was

treated more favorably. See id. at 802–03. If Foxworth is able to establish a prima facie

case, the burden shifts to the PSP to identify a legitimate, non-discriminatory reason for

failing to hire him. Id. at 804–05. If it is able to do so, Foxworth can still prevail—or at

least defeat summary judgment—if he can point to evidence that may raise the inference

that the PSP’s reasoning is pretext for actual discriminatory motive. Id.; see also Reeves



                                             11
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Center v.

Hicks, 509 U.S. 502, 506–07(1993); Texas Dept. Of Community Affairs v. Burdine, 450

U.S. 248, 254 (1981).

       At the prima facie stage, the parties only dispute the second prong: whether

Foxworth was qualified for the trooper position. We have held recently that an employer

that departs from a job posting’s objective criteria in making an employment decision

thereby establishes different criteria against which subsequent applicants should be

measured for the position. Hugh v. Butler County Family YMCA, 418 F.3d 265, 268 (3d

Cir. 2005); see also Scheidemantle v. Slippery Rock University State System, 470 F.3d

535, 539 (3d Cir. 2006). Thus, if Anderson can demonstrate that a “similarly

‘unqualified’ cadet” not from his protected class obtained a cadet position

notwithstanding prior criminal behavior, he can make out a prima facie case and will

defeat summary judgment. See Scheidemantle, 470 F.3d at 542.

       Foxworth argues that he makes out a prima facie case of discrimination because

the PSP hired a white candidate in 1995 who had an extensive record of sexual and racial

improprieties while at the police training institute in Illinois, for which he was eventually

dismissed. Indeed, the PSP would have established different criteria by which it should

have reviewed Foxworth’s application had it knowingly hired that cadet notwithstanding

his improprieties and dismissal. However, the cadet did not disclose his prior misconduct

on his application, and the PSP did not hire him with the knowledge that he failed to meet



                                             12
its qualification standards. We cannot therefore conclude that the PSP applied a lower

standard to the white candidate than to Foxworth such that he can make out a prima facie

case on that basis.

       But even if he did, we would be hard pressed to conclude that evidence of the 1995

hire raised the inference that the PSP’s proffered motive—application of the neutral

automatic disqualification policy—was mere pretext. To make a showing of pretext,

Foxworth would have to point “to some evidence, direct or circumstantial, from which a

fact-finder would reasonably either: (1) disbelieve the employer’s articulated legitimate

reasons; or (2) believe that an invidious discriminatory reason was more likely than not a

motivating or determinative cause of [the employer’s] action.” See Sheridan v. DuPont

de Nemours & Co., 100 F.3d 1061, 1067 (3d Cir. 1996); Fuentes v. Perskie, 32 F.3d 759,

764 (3d Cir. 1994). Foxworth bears the burden of proving that similarly situated persons

were treated differently. Burdine, 450 U.S. at 258; Simpson v. Kay Jewelers, 142 F.3d

639, 645–46 (3d Cir. 1998).

       In this case, the 1995 hire occurred before the imposition of the 1997 automatic

disqualification policy, and the 1995 hire resulted from false statements on the application

that would not lead a reasonable fact-finder to conclude that the PSP failed to apply its

policy neutrally. In addition, the PSP’s policy has since disqualified both whites and non-

whites; out of the forty-three disqualifications and withdrawals in Foxworth’s applicant

pool, forty-one applicants were white and two were black. Foxworth’s argument that his



                                             13
case is unique because of the ARD expungement does not help him meet his comparative

burden. The Simpson Court held that “even if Simpson [were] similarly situated to

[another white employee] but treated less favorably, . . . [his] reliance on a single member

of the non-protected class is insufficient to give rise to an inference of discrimination

when [he] was treated the same as thirty-four members of the non-protected class.” 142

F.3d at 645–46. Under Simpson, in light of the fact that forty-one non-protected

applicants were treated similarly to Foxworth, the fact that he singles out one case that is

marginally analogous to his automatic disqualification is not enough to raise the inference

of pretext.

                                             IV.

       In conclusion, Foxworth has no property right to future employment with the PSP

that would allow him to prevail on a procedural due process claim against the automatic

disqualification procedure. Nor has he advanced sufficient evidence to make out a claim

of discrimination on either a disparate impact or a disparate treatment theory. Viewed in

the light most favorable to Foxworth, the record evidence indicates that racial disparities

in the Pennsylvania State Police persist. But it does not suffice to draw a link between

that disparity and the automatic disqualification policy either facially or as applied to

Foxworth. We therefore affirm.




                                              14
