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


8-17-2006

Dunleavy v. Montville
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4078




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                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              ________________

                                     No. 05-4078
                                  ________________

                               HARRY DUNLEAVY,

                                                Appellant

                                           v.

  MONTVILLE TOWNSHIP; MONTVILLE BOARD OF EDUCATION; SANDRA
 ALON; STEVEN KRAMER; ROSALIE LAMONTE; J. FRANK VESPA-PAPALEO;
                       LORRAINE WATSON
                        ________________

                   On Appeal From the United States District Court
                             For the District of New Jersey
                            (D. N.J. Civ. No. 04-cv-01154)
                   District Judge: Honorable Katharine S. Hayden
                                  ________________


                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 27, 2006

              BEFORE: RENDELL, AMBRO and ROTH, Circuit Judges

                               (Filed: August 17, 2006)

                                  ________________

                                      OPINION
                                  ________________
PER CURIAM

      Harry Dunleavy appeals an order of the United States District Court for the

District of New Jersey granting summary judgment in favor of the Montville Board of
Education, the Principal of Montville High School, Steven Kramer, and the Supervisor of

Business and Mathematics, Sandra Alon (the “School Defendants”), in his age

discrimination action. For the reasons that follow, we will affirm.

       Montville High School advertised two mathematics teaching positions for the

2002-2003 school year. Dunleavy, who was then 60 years old, applied for a position.

Dunleavy had the requisite teaching certification. He had last worked as an Adjunct

Professor of Mathematics at Sussex County Community College. Dunleavy was invited

to interview for a teaching position. Kramer and Alon interviewed Dunleavy but did not

invite him back for the second round of interviews. Upon completion of the hiring

process, Kimberly Deamer, who was 28 years old, and Jeffrey Schutzer, who was 43

years old, were offered the teaching positions.

       Dunleavy filed suit in the District Court against the School Defendants raising

claims under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621- 634

(“ADEA”), and the New Jersey Law Against Discrimination, N.J. Stat. Ann. §§ 10:5-1-

10:5-49 (“NJLAD”).1 The School Defendants moved for summary judgment. In granting

the motion, the District Court held that Dunleavy established a prima facie case of

discrimination, but he did not show that the School Defendants’ legitimate,

nondiscriminatory reason for not hiring him was a pretext for discrimination.

       This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our


  1
   During the course of the proceedings, Dunleavy voluntarily dismissed, through
counsel, other defendants he had named and other claims he had raised in his complaint.

                                             2
standard of review is plenary. Kautz v. Met-Pro Corp., 412 F.3d 463, 466 (3d Cir. 2005).

         As recognized by the District Court, the McDonnell Douglas2 burden-shifting

framework applies to claims of discrimination under the ADEA. Stanziale v. Jargowsky,

200 F.3d 101, 105 (3d Cir. 2000).3 Under this framework, if a plaintiff establishes a

prima facie case of discrimination, the burden of production shifts to the defendant to

offer evidence that is sufficient, if believed, to support a finding that the defendant had a

legitimate, nondiscriminatory reason for the adverse employment decision. Id.

         If a defendant satisfies this burden, a plaintiff may then survive summary judgment

by submitting evidence from which a factfinder could reasonably either (1) disbelieve the

employer’s articulated legitimate reason; or (2) believe that an invidious discriminatory

reason was more likely than not a motivating or determinative cause of the employer’s

action. Id. The issues in this appeal are whether the District Court correctly decided that

the School Defendants established a legitimate, nondiscriminatory reason for the decision

not to hire Dunleavy and, if so, whether Dunleavy established that the reason was a

pretext for discrimination.4

         In their summary judgment motion, the School Defendants explained that



  2
      McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
  3
   We apply the same legal principles to Dunleavy’s NJLAD claim. See Keller v. Orix
Credit Alliance, 130 F.3d 1101, 1114 n.5 (3d Cir. 1997) (en banc).
  4
   Although the School Defendants do not agree with the District Court’s conclusion that
Dunleavy established a prima facie case of discrimination, they do not appeal that
decision. Appellees’ Br. at 8.

                                              3
Dunleavy was not chosen for a teaching position because he lacked recent high school

teaching experience, and he lacked the ability and willingness to integrate computers into

the daily curriculum. Sandra Alon submitted an affidavit stating that, during the

interview, it was apparent that Dunleavy was not sufficiently familiar with certain

computer programs to incorporate them into the classroom. She also stated that Dunleavy

admitted during the interview that he had not taught public school since 1977. Alon

further explained that Kimberly Deamer and Jeffrey Schutzer satisfied these

requirements. We agree with the District Court that the School Defendants established

legitimate, nondiscriminatory reasons for the decision not to hire Dunleavy. See Fuentes

v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (noting that the employer’s burden to

articulate a legitimate, nondiscriminatory reason is “relatively light”).

       We further agree with the District Court that, in response to the summary judgment

motion, Dunleavy pointed to no evidence from which a factfinder could reasonably

disbelieve the School Defendants’ articulated legitimate reasons. Dunleavy did not

establish that he had recent high school teaching experience. To the contrary, Dunleavy

stated in his deposition that his last permanent teaching position in a high school was in

1977. Although he did some substitute high school teaching thereafter, Dunleavy could

not recall the years when he was so employed. Moreover, even if Dunleavy did substitute

teach more recently, the record does not establish that the School Defendants knew about

this experience when they made the hiring decision. Dunleavy could not recall at his

deposition if he discussed his substitute teaching during his interview. He did not include

                                              4
this experience on his resume.

       Dunleavy also did not establish that during his interview he demonstrated his

ability and willingness to integrate computers into the daily curriculum. In his affidavit,

Dunleavy stated only that he was told that such an ability and willingness, along with

recent teaching experience, were the most important factors in the School Defendants’

hiring decision. Dunleavy did not state that he expressed to Alon and Kramer his ability

and willingness to use computers in the classroom. To the contrary, Dunleavy stated at

his deposition that computers “really aren’t much use for math unless you want to

produce mathematical illiterates.” Dunleavy Dep. at 20. Also, in his brief to this Court,

Dunleavy expressed his disagreement with the School Defendants’ requirement that

teachers use certain technologies to teach math. See Appellant’s Br. at 6-7. Dunleavy’s

personal beliefs about the utility of computers in the classroom do not cast doubt on the

School Defendants’ reason for not hiring him.5

       Finally, Dunleavy did not establish that Deamer and Schutzer did not satisfy the

School Defendants’ requirements. The resumes of these candidates reflect more recent

high school mathematics teaching experience than Dunleavy had. In addition, Alon

  5
    We agree with Dunleavy that there is no evidence supporting the statement in the
District Court’s opinion that Dunleavy admitted at his interview that he had no experience
using computers to teach in the classroom. Although Dunleavy stated at his deposition
that he had not used computers to assist him in teaching, there is no evidence that he so
stated at his interview. Rather, contrary to Alon’s affidavit, Dunleavy argues for the first
time in this appeal that he was not asked about computers at his interview. Because
Dunleavy did not contend in District Court that a genuine issue of material fact exists on
this basis, we will not consider this argument. See Dluhos v. Strasberg, 321 F.3d 365,
373 (3d Cir. 2003) (declining to address issues raised for the first time on appeal).

                                             5
attested that both candidates had incorporated technology into their teaching curriculums.

In his brief, Dunleavy points to other factors, including his teaching certification in

Spanish and graduate degrees, that he believes make him more qualified than these

candidates. He submitted no evidence, however, that these factors were important to the

School Defendants in their hiring decision.

       We conclude that Dunleavy has not shown that the reasons articulated by the

School Defendants for not hiring him were a pretext for discrimination. See Kautz, 412

F.3d at 467 (noting that, to prove pretext, a plaintiff is required to present evidence

contradicting the core facts put forward by the employer as the legitimate reason for its

decision). Accordingly, we will affirm the District Court’s order.6




  6
   The District Court also concluded that the statistical evidence Dunleavy submitted to
support his claim did not establish an inference of discrimination. Dunleavy does not
challenge this conclusion on appeal, and we have not considered it.

                                              6
