                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-19-2006

Scheidemantle v. Slippery Rock Univ
Precedential or Non-Precedential: Precedential

Docket No. 05-3850




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                                         PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                     No. 05-3850


              JUDY SCHEIDEMANTLE,

                               Appellant

                          v.

         SLIPPERY ROCK UNIVERSITY
     STATE SYSTEM OF HIGHER EDUCATION




      Appeal from the United States District Court
        for the Western District of Pennsylvania
          (D.C. Civil Action No. 04-CV-00331)
     District Judge: Honorable Donetta W. Ambrose


                Argued October 4, 2006

Before: McKEE, AMBRO, and NYGAARD, Circuit Judges

          (Opinion filed: December 19, 2006)
Neal A. Sanders, Esquire (Argued)
1924 North Main Street Extension
Route 8 North
Butler, PA 16001

       Counsel for Appellant

Thomas W. Corbett, Jr.
   Attorney General
Craig E. Maravich (Argued)
   Deputy Attorney General
Calvin R. Koons
   Senior Attorney General
John Knorr, III
   Chief Deputy Attorney General
   Appellate Division
Office of Attorney General of Pennsylvania
564 Forbes Avenue, Sixth Floor
Manor Complex
Pittsburgh, PA 15219

       Counsel for Appellee


                OPINION OF THE COURT


AMBRO, Circuit Judge

       Judy Scheidemantle alleges that Slippery Rock University
discriminated against her by refusing twice to promote her for

                               2
an advertised locksmith position and hiring unqualified male
employees instead. Slippery Rock countered, in a motion for
summary judgment, that it did not promote Scheidemantle
because she was unqualified for the position. The United States
District Court for the Western District of Pennsylvania agreed
with Slippery Rock in granting its motion, determining that
Scheidemantle failed to establish a prima facie case of gender
discrimination because she did not meet the “objective
qualifications” for the position.

       Scheidemantle appeals to us. We must decide whether an
employer that hires someone who lacks a job posting’s objective
qualifications can point to the absence of those same
qualifications in another applicant as a basis for declining to hire
that second applicant. We hold that it cannot, and in so doing
conclude that Scheidemantle established a prima facie case of
discrimination. We thus reverse the summary judgment and
remand.

I.      Factual Background

       In March 2003, Slippery Rock posted a locksmith
position vacancy, requiring two years of locksmithing
experience. Scheidemantle, who worked for Slippery Rock as
a labor foreman, applied along with three male applicants. She
had completed a home study course in locksmithing and




                                 3
subsequently received a professional locksmithing license,1 but
neither she nor the other applicants possessed the requisite two
years of locksmithing experience.

       Scheidemantle was not hired. Instead, Calvin Rippey, a
younger employee from the University’s “carpenter
department,” who had no prior coursework and less than two
years’ locksmithing experience, was selected for the position.

       Scheidemantle filed a discrimination claim with the
federal Equal Employment Opportunity Commission (EEOC),2


 1
   Slippery Rock argues that Scheidemantle’s invocation of her
license as a measure of her greater qualifications is a red
herring, because Pennsylvania does not require licenses for
locksmithing.     Indeed, legislative attempts to regulate
locksmithing by requiring locksmith licenses have failed four
times in Pennsylvania. See Locksmith License Act, S.R. 286,
Sess. of 1997 (Pa. 1997); S.R. 1170, Sess. of 1995 (Pa. 1995);
H.R. 1540, Sess. of 1975 (Pa. 1975); H.R. 2127, Sess. of 1974
(Pa. 1974). Nevertheless, a reasonable juror could view
Scheidemantle’s license as relevant to her qualifications to
function competently as a locksmith.
     2
      Scheidemantle also filed a claim with the Pennsylvania
Human Relations Commission (“PHRC”), which decides
discrimination claims under the Pennsylvania Human Relations
Act. 43 P.S. §§ 951 et seq. However, pursuant to a
“Worksharing Agreement” between the PHRC and the EEOC

                               4
alleging age and gender discrimination in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.,3 and
the Pennsylvania Human Relations Act, 43 P.S. §§ 951 et seq.
(“PHRA”).4 The EEOC dismissed her claim, noting that her



under which each entity agrees to yield investigatory authority
to the Commission with which an action is first filed, and
because Scheidemantle already had submitted the case to the
District Court by the time the PHRC reviewed her petition, the
Pennsylvania Commission declined to consider Scheidemantle’s
case.
  3
      Title VII provides, in pertinent part, that

         [i]t shall be an unlawful employment practice for an
         employer . . . to fail or refuse to hire or to discharge any
         individual, or otherwise to discriminate against any
         individual with respect to his compensation, 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).
  4
      The relevant provisions state as follows:

         The opportunity for an individual to obtain employment
         for which he is qualified . . . without discrimination
         because of [, inter alia,] race, color, familial status,
         religious creed, ancestry, handicap or disability, age, [or]

                                  5
home study course was the equivalent of 241 hours of actual
locksmithing experience, whereas Rippey’s actual experience
included at least 941 hours. It concluded that Scheidemantle’s
“allegations that [she was] discriminated against because of
[her] age and/or sex[] [could] not be substantiated. The
evidence revealed that [Slippery Rock] selected the candidate
with the most experience and/or training for the locksmithing
position.” App. at 88. Scheidemantle then filed suit in the
District Court.



       sex . . . is hereby recognized as and declared to be a civil
       right which shall be enforceable as set forth in this act.

43 P.S. § 953.

      It shall be an unlawful discriminatory practice, unless
based upon a bona fide    occupational qualification . . .[,]

       for any employer because of [, inter alia,] the race, color,
       religious creed, ancestry, age, sex, [or] national origin .
       . . to refuse to hire or employ or contract with . . . or to
       otherwise discriminate against such individual or
       independent contractor with respect to compensation,
       hire, tenure, terms, conditions or privileges of
       employment or contract, if the individual or independent
       contractor is the best able and most competent to perform
       the services required.

43 P.S. § 955(a).

                                6
       In April 2004, Rippey was promoted out of the locksmith
position and the now-vacant position was again posted in June
2004, this time requiring three years of locksmithing experience.
Between April and June, Rippey informally had assigned
Bradley Winrader, an employee from the carpenter department,
to perform locksmithing duties on an ongoing basis. Winrader
also had little experience in locksmithing and had completed no
locksmithing coursework until November 2004, when he
enrolled in a correspondence course after beginning his
locksmithing assignment. Based on the record before us,
Slippery Rock did not conduct interviews for or fill the 2004
position on a permanent basis.

       In October 2004, Scheidemantle filed another complaint
with the EEOC, which again rejected her case. She then
amended her complaint before the District Court, wherein she
alleged age and gender discrimination for both the 2003 and
2004 rejections. She also alleged, in the alternative, that the
University’s failure to promote her in 2004 was in retaliation for
her 2003 EEOC filing.

       The District Court determined that Scheidemantle was
not qualified for the locksmith position according to the
objective criteria listed in the position announcements, and
consequently she could not establish a prima facie case of
discrimination. She appeals to us, asserting only her gender
discrimination claims.



                                7
II.    Jurisdiction

        The District Court had subject matter jurisdiction over
the initial case pursuant to Title VII of the Civil Rights Act of
1964, 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.

III.   Standard of Review

       We exercise plenary review over the District Court’s
grant of summary judgment and apply the same standard the
District Court should apply. See, e.g., Slagle v. County of
Clarion, 435 F.3d at 263 (3d Cir. 2006); Hugh v. Butler County
Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005). Namely, a
grant of summary judgment is proper where the moving party
has established that there is no genuine dispute of material fact
and “the moving party is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c). A fact is material if it might affect
the outcome of the suit under the governing substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). To
demonstrate that no material facts are in dispute, the moving
party must show that the non-moving party has failed to
establish one or more essential elements of his or her case.
Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986); Hugh,
418 F.3d at 267. In addition, a court should view the facts in the
light most favorable to the non-moving party and make all
reasonable inferences in that party’s favor. Hugh, 418 F.3d at
267.

                                8
       To prevail on a motion for summary judgment, the non-
moving party needs to show specific facts such that a reasonable
jury could find in that party’s favor, thereby establishing a
genuine issue of fact for trial. See Fed. R. Civ. P. 56(e). “While
the evidence that the non-moving party presents may be either
direct or circumstantial, and need not be as great as a
preponderance, the evidence must be more than a scintilla.”
Hugh, 418 F.3d at 267 (quoting Anderson, 477 U.S. at 251).

IV.     Discussion

        A.      Legal Standards for Establishing Employment
                Discrimination

                1.      Guiding Principles

        Two principles guide our analysis. First, Title VII is a
remedial statute, so it must be interpreted broadly. See 42
U.S.C. § 1604.34 (“These rules and regulations shall be liberally
construed to effectuate the purpose and provisions of Title
VII . . . .”); see also Slagle, 435 F.3d at 267 (citing Bowers v.
NCAA, 346 F.3d 402, 431 n.24 (3d Cir. 2003) (“We recognize
that []Title VII is clearly remedial civil rights legislation . . . .”));
Idahoan Fresh v. Advantage Produce, Inc., 157 F.3d 197, 202
(3d Cir. 1998) (noting that we must construe remedial statutes
liberally).

        Second, there is a low bar for establishing a prima facie

                                   9
case of employment discrimination. See, e.g., Ezold v. Wolf,
983 F.2d 509, 523 (3d Cir. 1993) (“In Title VII cases involving
a dispute over subjective qualifications, we have recognized that
the qualification issue should often be resolved in the second
and third stages of the McDonnell Douglas . . . analysis
[discussed below], to avoid putting too onerous a burden on the
plaintiff in establishing a prima facie case . . . . Because the
prima facie case is easily made out, it is rarely the focus of the
ultimate disagreement.”) (internal citations and quotation marks
omitted); Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir.
1990) (“The framework set forth in McDonnell Douglas . . . was
never intended to be rigid, mechanized or ritualistic. Rather, it
is merely a sensible, orderly way to evaluate the evidence in
light of common experience as it bears on the critical question
of discrimination.”) (internal citations omitted).

       2.     McDonnell Douglas Burden-Shifting Inquiry

      To prevail on a claim for gender discrimination under
Title VII and its analogous provision under the PHRA,5
Scheidemantle must satisfy the three-step burden-shifting


   5
     We construe Title VII and the PHRA consistently. See
Atkinson v. LaFayette College, 460 F.3d 447, 454 n.6 (3d Cir.
2006); Slagle, 435 F.3d at 262; Kelly v. Drexel Univ., 94 F.3d
102, 105 (3d Cir. 1996); Gomez v. Allegheny Health Serv., Inc.,
71 F.3d 1079, 1084 (3d Cir. 1995).


                               10
inquiry laid out in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802–03 (1973). First, she must establish a prima facie case
of gender discrimination. To do that, she must demonstrate that
(a) she was a member of a protected class, (b) she was qualified
for the locksmith job to which she applied, and (c) another, not
in the protected class, was treated more favorably. See id. at
802–03.

       If she succeeds in making out a prima facie case, the
burden shifts to the University to establish a legitimate non-
discriminatory reason for its failure to promote her. Id. at
804–05. If the University is able to provide such a reason,
Scheidemantle must then show that the proffered reason is
merely a pretext for actual discrimination. Id.; see also Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).

       B.     District Court Decision

        The District Court decided this case on the basis of
McDonnell Douglas’s first step alone: that Scheidemantle could
not establish a prima facie case of discrimination because she
failed to meet the qualification prong. (The Court proceeded on
the assumption that the other two prongs are satisfied, and we
agree. Scheidemantle meets the first prong because, as a
woman, she is a member of a protected class—“sex” under Title
VII. She meets the third prong because the person who filled
the position, thereby receiving more favorable treatment, was a



                              11
man, who does not fall within Title VII’s gender protections.)6

       Slippery Rock argues before us that the District Court’s
decision on Scheidemantle’s lack of objective qualifications
(two or three years’ experience for the 2003 and 2004 positions,
respectively) is correct, and this disqualifies her at the outset as
lacking a prima facie case. Scheidemantle counters that she did
not need to meet the objective qualifications of the job postings
because she was at least as qualified as the male employees
hired for and assigned to the job. Under Hugh v. Butler County
Family YMCA, 418 F.3d 265, 268 (3d Cir. 2005), she argues, an
employer that hires a male who also fails to meet the objective


  6
     Because it decided on the basis of the qualification prong,
the Court did not address whether, for her 2004 claim,
Scheidemantle met the third prong that an unprotected employee
received more favorable treatment. The University would likely
argue that she did not, since it did not formally fill the position
but rather “assigned” it to another employee. However, we have
held that an employee alleging gender discrimination need not
demonstrate that the employer hired someone from a non-
protected class in her place in order to make out a discrimination
claim. See Pivirotto v. Innovative Sys., 191 F.3d 344, 354 & n.6
(3d Cir. 1999) (collecting cases to the same effect from the
Courts of Appeals for the First, Second, Fifth, Sixth, Seventh,
Eighth, and Eleventh Circuits). This prong therefore cannot be
in serious dispute because the assignment—though short of
hiring—constitutes more favorable treatment, as it is an
effective filling of the position.

                                12
qualifications for the posted job waives its ability to rely on
objective criteria as the only way to meet the qualifications
prong. We begin, therefore, with Hugh.

       C.     Prima Facie Case:       Qualifications Prong in
              Light of Hugh

        Our Court in Hugh addressed whether an employer that
promotes an employee who fails to meet a job posting’s
objective criteria can then point to the employee’s failure to
meet those criteria as a valid justification for employment
termination. 418 F.3d at 268. Specifically, Hugh was promoted
despite lacking the associated job posting’s objective
qualifications.     When she later was fired and filed a
discrimination claim, did her failure to meet the job posting’s
objective qualifications mean that she also failed to meet the
qualification prong for purposes of establishing a prima facie
case of employment discrimination? We answered “no” because
“it is a fair inference that the decision to promote Hugh was
based on her satisfactory performance in her two previous
positions [at the organization].” Id. In other words, the
promotion “does establish [] plaintiff’s qualification for [the]
job.” Id. (internal citations omitted). Cf. Jalil v. Avdel Corp.,
873 F.2d 701, 707 (3d Cir. 1989) (holding that where an
employer promoted an eight-year employee “to the ‘lead man’
position in his department . . ., satisfactory performance of
duties . . . leading to a promotion clearly established his
qualifications for the job.”).

                               13
       We have not decided yet whether the qualifications prong
may be met implicitly through the promotion of an unqualified
third party, as in this case, but Hugh provides guidance. There
the employer was precluded from using a lack of objective
qualifications defense, as previously it had ignored those posted
qualifications in promoting the employee-plaintiff. Applying
those principles to this case, Hugh stands for the proposition
that, by departing from a job posting’s objective criteria in
making an employment decision, an employer establishes
different qualifications against which an employee or applicant
should be measured for the position.

       This reading of Hugh is consistent with our review of
past District Court decisions. See, e.g., Pinckney v. County of
Northampton, 512 F. Supp. 989, 998 (E.D. Pa. 1981), aff’d, 681
F.2d 808 (3d Cir. 1982) (concluding that, in order to establish a
prima facie discrimination case, courts should look to the hiring
decision to determine if the plaintiff was at least as
qualified—not necessarily better qualified—as the person
selected for the position.). 7 Moreover, any narrow reading of
Hugh runs contrary to the generously construed, remedial civil


    7
      Additionally, McDonnell Douglas explained that more
favorable treatment to a non-protected applicant includes
seeking someone “of complainant’s qualifications” after
rejecting the complainant. 411 U.S. at 802. That case does not
directly control this one, since the complainant’s objective
qualifications there were not in dispute.

                               14
rights regime. If an employer could, with impunity, appeal to
objective qualifications to defeat any female job applicant’s
challenge to its hire of an objectively unqualified male in her
place, discrimination law would be reduced to bark with no bite.
Title VII demands that employers apply the same standards for
hiring women and other protected minorities that they apply to
all other applicants.

       Like Hugh, we look here to the hiree’s qualifications to
determine whether Slippery Rock created the inference that
something other than the posted objective qualifications was
sufficient. Rippey (the 2003 hiree), Windrader (the 2004
assignee), and Scheidemantle all lacked the objective
qualifications listed in the job posting. If we compare the
subsequent hiring decision to the objective criteria in this case,
we can only conclude that something other than the job
postings’ two or three years of locksmithing experience was
sufficient. The record shows that when Slippery Rock hired
Rippey in 2003, it did so with the understanding that he had only
three months of locksmithing experience on “light duty” while
he was a carpenter and was recovering from surgery to both
hands, App. 242–44, and Scheidemantle asserts that her training
made her at least as qualified as Rippey. App. Br. at 13–14.8


  8
   But see App. at 87 (Memo accompanying EEOC Dismissal,
dated Dec. 16, 2003) (“The successful candidate, Calvin Rippey,
met the required experience and/or training. Rippey has been
part of the carpentry crew for the last twelve years and has

                               15
Similarly, when Slippery Rock assigned Winrader to the
position in 2004, he had no locksmithing experience according
to his resume. Nor had he completed a course in locksmithing
as had Scheidemantle.9 Applying Hugh, we conclude that, by


worked, at various times, as a locksmith. A computer printout
for work accomplished by Rippey after 1997, when the
Respondent [Slippery Rock] began maintaining such records for
employees, revealed that he had at least 941 hours working as a
locksmith. The [University] determined that Rippey’s hours
should be prorated for the time prior to the establishment of the
1997 computer records. Thus, based on the number of hours, as
compared to [Scheidemantle’s ‘locksmith equivalent of 205
. . . hours’ through her coursework], Rippey has substantially
more hours in experience and/or training for the locksmith
position.”). We have no access to the documents referenced
here and they did not figure into the District Court’s decision.
At oral argument, Scheidemantle contested the EEOC’s
determination, asserting Rippey could not demonstrate that he
had the experience the Commission attributed to him. This
question is clearly an issue of fact best left to a jury to decide.
     9
      When deposed, Winrader revealed that he had some
experience in locksmithing both inside the University while a
carpenter and outside of the University ten years before his
assignment to fulfill locksmith duties, but had no locksmithing
coursework until November 2004—which he began after
receiving the locksmithing assignment. But the information on
the prior experience was unknown to Slippery Rock prior to the
assignment, so it cannot be considered at the prima facie stage

                                16
departing from the objective requirements in its hiring decision,
Slippery Rock thereby established different qualifications by
which Scheidemantle—as a protected applicant who suffered an
adverse employment decision—met the qualifications prong and
completed her prima facie case of discrimination. The District
Court thus erred by entering summary judgment in favor of
Slippery Rock.

V.     Conclusion

        We hold that the District Court erred in determining that
Scheidemantle failed to establish a prima facie case of
employment discrimination against Slippery Rock on the basis
that she failed to meet the job posting’s objective qualifications.
Because Slippery Rock placed similarly “unqualified” males in
the locksmith position, it could no longer point to the job
posting’s objective qualifications as a valid reason for refusing
to promote Scheidemantle. We thus reverse and remand for
further proceedings.10


or at the pretext stage once the burden shifts to the University to
provide legitimate reasons for failing to promote Scheidemantle.
At most, Winrader’s claims of prior experience (and thus greater
qualifications than Scheidemantle) at deposition raise a disputed
material issue of fact that should be tried before a jury.
  10
    We surmise that Slippery Rock likely will file for summary
judgment on at least the second stage of the McDonnell Douglas
inquiry (other reasons beyond qualifications offered for not

                                17
hiring Scheidemantle). If so, we observe that disputed issues of
material fact appear to linger—specifically, whether
Scheidemantle was more qualified than Rippey or Winrader and
whether Slippery Rock discriminates against women by
affording training and promotion opportunities in locksmithing
to men that it denies to women.
        To flesh out the latter observation, the record before us
suggests that the University has a history of failing to provide
women with opportunities for locksmith training. It appears to
assign employees from only the carpenter department to
temporary locksmithing positions, such as the short-term
rotating weekly assignments that Winrader and “most of the
[other] carpenter people” held prior to Winrader’s April 2004
longer-term assignment. See App. at 233 (deposition of former
locksmith Guy Surrena). In addition, it appears that the
carpenter department has not hired any woman since 1991 and
perhaps before. If the temporary locksmith assignments are the
only way of gaining experience through the University, whether
those assignments are available only to employees in the all-
male carpenter department is a relevant issue of fact for
determining the ultimate question of whether discrimination has
occurred. See Ezold, 983 F.2d at 540, 542–43 (noting that
situations where an employer denies women “equal
opportunities to . . . training and support” that prevents them
from gaining exposure to the projects or experience that would
qualify them for promotions can support an inference of
discrimination); cf. Jackson v. University of Pittsburgh, 826
F.2d 230, 235 (3d Cir. 1987), cert. denied, 484 U.S. 1020 (1988)
(recognizing that when an employer’s discrimination prevents

                               18
blacks from accessing training and support, it creates a
“reasonable inference that [the black employee] was treated less
favorably than his white colleagues in ways that could explain
any ‘deficiency’ in performance”). These disputed issues fall
within the province of the finder of fact and cannot be resolved
on summary judgment.

                              19
