                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-2004

Harrison v. Housing Auth Pgh
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4531




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                                                                  NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                    Case No: 03-4531

                               GEORGE HARRISON, III,

                                                      Appellant
                                             v.

                      HOUSING AUTHORITY OF THE CITY OF
                                PITTSBURGH


                     On appeal from the United States District Court
                        for the Western District of Pennsylvania
                                 (Case No. 01-cv-00748)
                       District Judge: Hon. Donetta W. Ambrose


                      Submitted Pursuant to Third Circuit LAR 34.1
                                  September 30, 2004

               Before: RENDELL, FUENTES and SMITH, Circuit Judges

                               (Filed: September 30, 2004)


                               OPINION OF THE COURT


SMITH, Circuit Judge.

       George Harrison appeals from the District Court’s grant of summary judgment in

his racial discrimination claim in favor of the Housing Authority of the City of Pittsburgh

(“Housing Authority”). For the reasons set forth below, we affirm.

                                             I.
       Because we write only for the parties, we set forth just a brief recitation of the

facts. Harrison began his career with the Housing Authority in 1978 as a van driver,

receiving promotions to positions such as janitor and laborer until he was promoted to

Field Maintenance Supervisor in September 1996.

       In the fall of 1997, Harrison authorized the use of a building coating meant to

protect against graffiti which was more expensive than the coating normally used by the

Housing Authority. On October 20, 1997, Harrison was suspended for five days for

“Failure to obtain authorization to change Contractor’s scope of work resulting in

substantial cost to [the Housing Authority], and Failure to perform job duties.” An

Employee Contact Report memorializing this incident was filed by his supervisor on

October 27, 1997. After a grievance hearing, Guy Pollice, the Housing Authority’s

Director of Maintenance, reduced Harrison’s suspension to three days.

       On September 15, 1998, Harrison filed an Employee Contact Report about his

subordinate, David Battles, citing Battles’ failure to clean the area assigned to him.

Harrison knew, however, that Battles had not been at work for a substantial portion of the

previous weeks due to vacation, holiday, suspension and sick leave. Harrison’s “unfair

treatment” of Battles prompted Harrison’s supervisor to file another Employee Contact

report on October 20, 1998. Initially, Harrison was suspended for five days for his

treatment of Battles. After a grievance hearing, the suspension was reduced to a letter

placed in Harrison’s file which indicated that it was placed there “as a warning letter and



                                              2
as evidence of [his] difficulty in properly performing the responsibilities of a supervisor.”

       Harrison began an extended period of sick leave coincident with these events. On

February 26, 1999, while on sick leave, Harrison filed a charge of racial discrimination

with the Pennsylvania Human Relations Commission (“PHRC”) and the Equal

Employment Opportunity Commission (“EEOC”).

       In a General Intake Questionnaire completed on March 1, 1999, Harrison stated

that he “had been verbally informed that [he was] to be demoted.” Thereafter, on March

15, 1999, Harrison informed Darlene Lindner in the Housing Authority’s personnel office

that he had filed the racial discrimination charges. A week later, on March 22, Harrison

returned to work after his prolonged sick leave.

       In January 2000, Linder informed Harrison that a layoff was impending and that

because his demotion had resulted in a loss of seniority he should look for other work.

Rather than wait for the layoff, Harrison resigned from his position at the Housing

Authority effective March 10, 2000.

       Harrison filed a complaint in the District Court on April 27, 2001, alleging

discrimination on the basis of race in violation of Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. § 2000e-2(a)(1) and the Pennsylvania Human Rights Act

(“PHRA”), 43 Pa. Cons. Stat. § 955 et seq. The District Court construed Harrison’s

claims as alleging racial discrimination, hostile work environment, constructive discharge

and retaliation. The District Court granted the Housing Authority’s motion for summary



                                              3
judgment on October 24, 2003.

                                             II.

       On appeal, Harrison argues that, although the District Court appropriately

examined his claims of racial discrimination under the burden shifting analysis of

McDonell Douglas Corp. v. Green, 411 U.S. 792 (1973), it failed to consider all of the

evidence in his favor with respect to his burden to establish that the Housing Authority’s

legitimate nondiscriminatory reasons for demoting him were pretextual. We agree with

the District Court that Harrison failed to “1) cast[] sufficient doubt upon each of the

legitimate reasons proffered by the defendant so that a factfinder could reasonably

conclude that each reason was a fabrication; or 2) allow[] the factfinder to infer that

discrimination was more likely than not a motivating or determinative cause of the

adverse employment action,” as required to show that the proffered non-discriminatory

reason offered by the Housing Authority was simply pretext. Fuentes v. Perskie, 32 F.3d

759, 762 (3d Cir. 1994). At best, the evidence proffered by Harrison demonstrates that

the Housing Authority’s decision was a mistake. As we explained in Keller v. Orix

Credit Alliance, “[t]he question is not whether the employer made the best, or even a

sound, business decision; it is whether the real reason is discrimination.” 130 F.3d 1101,

1109 (3d Cir. 1997) (brackets omitted) (citing Carson v. Bethlehem Steel Corp., 82 F.3d

157, 159 (7th Cir. 1996)). We agree with the District Court that Harrison failed to make a

sufficient showing.



                                              4
       We also agree with the District Court that Harrison failed to meet his burden to

show that he was subjected to a hostile work environment. The incidents identified by

Harrison are the sort of non-serious isolated incidents that the Supreme Court has

cautioned do not amount to “discriminatory changes in the terms and conditions of

employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal

quotations omitted).

       In the same way, nothing Harrison alleged could be considered the “intolerable

conditions” necessary to show constructive discharge. Duffy v. Paper Magic Group, Inc.,

265 F.3d 163, 169 (3d Cir. 2001); see also Konstantopolos v. Westvaco Corp., 112 F.3d

710, 718 (3d Cir. 1997) (where a hostile work environment was not shown plaintiff failed

to show a necessary predicate for a constructive discharge claim).

       Finally, Harrison challenges the District Court’s determination that his retaliation

claim failed because he did not establish the requisite temporal nexus between filing a

discrimination charge and his demotion. Specifically, Harrison claims that the decision

about his demotion was not final until April 20, 1999, when he sent a letter to Linder

regarding the reduction in his pay which confirmed that he had been demoted. On March

1, 1999, however, Harrison filled out an EEOC General Intake Questionnaire in which he

stated: “I have been verbally informed that I am to be demoted . . . .” The statement

reflects no lack of finality, but instead states that he had already been informed that the

demotion would occur. In his deposition, Harrison explained that he did not inform



                                              5
Linder of his discrimination charge until March 15, 1999, more than two weeks after he

knew of the demotion. We agree with the District Court that he has failed to establish a

connection between his protected activity and the employer’s adverse action.

      Accordingly, we will affirm the District Court.




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