          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William R. Hoy,                        :
                          Appellant    :
                                       :
             v.                        :     No. 1005 C.D. 2015
                                       :
Borough of Cochranton                  :


                                      ORDER


             NOW, December 21, 2016, upon consideration of appellant’s application for

reargument and appellee’s answer, the application is granted but only insofar as it seeks a

reconsideration of the opinion.

             The opinion and order filed on October 18, 2016, are withdrawn.

             The attached opinion and order are entered.




                                       Mary Hannah Leavitt
                                       President Judge
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William R. Hoy,                         :
                  Appellant             :
                                        :   No. 1005 C.D. 2015
            v.                          :
                                        :   Argued: September 15, 2016
Borough of Cochranton                   :



BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                   FILED: December 21, 2016


              William Hoy (Hoy) appeals from the March 9, 2015 order of the Court
of Common Pleas of Crawford County (trial court) granting summary judgment in
favor of the Borough of Cochranton (Borough) on his claims of gender and age
discrimination. We affirm.


                              Facts/Procedural History
            The background of this case, viewed in the light most favorable to Hoy
as the non-moving party, may be summarized as follows.            Hoy is a retired
Pennsylvania State Trooper with twenty-five years of experience. At first, Hoy
worked as a Patrol Trooper and was thereafter promoted to Corporal in 1993, the
latest position of which he worked during the last fourteen years of his employment.
On a temporary basis, Hoy also served as acting Sergeant when a Sergeant retired.
Hoy’s work experience with the Pennsylvania State Police includes responding to
incidents of a serious nature; supervising patrol officers; evaluating patrol troopers’
performance; and maintaining positive public relations with municipal police in the
Meadville and surrounding area. (Reproduced Record (R.R.) at 204a-13a.)
             The Borough’s then Police Chief, Michael Phillips, announced at a
Borough Council meeting on May 14, 2012, that he would retire, effective July 6,
2012.    At this meeting, former Police Chief Phillips recommended that his
subordinate, Sergeant Heather Beachy, be promoted to Chief of Police. The Borough
Council declined this recommendation at that time, and approved a motion to
advertise the vacancy, and an advertisement appeared in a local newspaper on May
17, 2012. Hoy applied for the position via letter and resume dated May 14, 2012, and
became MPOETC (Municipal Police Officers’ Education & Training Commission)
certified after the position was advertised. Hoy, a male, was fifty-nine years old
when he applied for the position of Police Chief. (R.R. at 224a-29a, 279a-81a.)
             Beachy, a thirty-three-year-old female at the time of the application
process, attended Mercyhurst Police Academy for six months, graduating on July 15,
2005, and then worked as a part-time police officer for the Borough, sixteen hours per
week, until she became a full-time officer and Sergeant on July 1, 2009. Beachy’s
job duties as a police officer included street patrol, traffic stops, and handling various
domestic disturbance calls. Since 2009, Beachy and former Police Chief Phillips
were the only full-time officers working for the Borough. As Sergeant, Beachy
supervised two to four other part-time officers and observed former Police Chief
Phillips perform his particular job duties. Beachy also served temporarily as the
acting Chief of Police when former Police Chief Phillips was out on medical leave.



                                            2
Once he decided that he was going to retire, former Police Chief Phillips trained
Beachy with administrative tasks, budgeting, crime reports, and other matters
associated with the role of Chief of Police. (R.R. at 268a-91a, 317a-18a; Trial court
op. at 7.)
                On June 19, 2012, during an executive session, the Borough Council
narrowed the list to four candidates.            Of the four, only Beachy and Hoy were
residents of the Borough, and the other two were eliminated from consideration on
that basis. On July 2, 2012, the Borough Council held a meeting open to the public
and a motion was made to promote Beachy to the position of Police Chief; the motion
was passed by unanimous vote. During the selection process, the Borough Council
did not conduct any interviews. The Borough Council subsequently sent a rejection
letter dated (or misdated) June 27, 2012 to all the unsuccessful applicants, which,
including Hoy, consisted of twenty-six males. (R.R. at 382a-97a; Trial court op. at 1-
2.)
                On September 4, 2013, Hoy filed the instant suit against the Borough,
alleging gender and age discrimination in the hiring of Beachy as Police Chief, in
violation of the Pennsylvania Human Relations Act (PHRA).1
                Thereafter, the parties conducted discovery, gathering documentary
evidence and memorializing testimonial statements. William Shorts, President of the
Borough Council, testified that he was aware of Hoy’s credentials, but was adverse to
hiring Hoy because he did not like Hoy’s demeanor and felt that Hoy was not friendly
or had any budgeting experience. Other Council members stated that they were
generally familiar with Hoy because he resided in the Borough since 1996, had been

       1
           Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§951-963.




                                                 3
a football coach at the local high school for at least thirteen years, attended Council
meetings, and visited the Borough’s office. They further offered uncontradicted
testimony that the decision to hire Beachy was not made until the July 2, 2012
meeting and that the rejection letters reflecting a date of June 27, 2012, contained a
typographic error. (R.R. at 135a-36a, 214a, 244a, 289a-92a.)
             Bart Waite, the Mayor of the Borough, stated that he and the Borough’s
Council decided not to interview Hoy because they did not think he was the best
person for the position. Waite stated that he never told a news reporter that it would
be beneficial to the community to have a female as the Chief of Police, but noted that
the article stated that Beachy was the first female to assume that position within
Crawford County. According to Waite, he was not aware that Beachy was the first
female Chief of Police in the county until he read the article. Waite added that he did
not think Hoy would be good at orchestrating community relations based upon his
knowledge of complaints involving Hoy in his role as the high school football coach.
(R.R. at 304a-11a, 393a; see Trial court op. at 5 n.4.)
             The Borough’s witnesses also explained that the Borough received
several unsolicited recommendations from residents of the Borough in favor of hiring
Beachy, while Hoy did not have any. (R.R. at 92a, 128a, 131a.) Ultimately, the
Borough Council stated that it voted to hire Beachy for nine reasons; specifically,
because she: (1) performed admirably in her role as Sergeant; (2) was active in the
community with regard to school and neighborhood watch programs; (3) had a
positive attitude; (4) received several unsolicited recommendations from Borough
citizens; (5) had experience handling police business in a small borough, particularly
enforcing the Borough’s local ordinances; (6) had experience handling the Borough’s
Police Department’s budget; (7) was known to be dependable and exceeded the



                                            4
expectations of the Borough Council; (8) was mentored by former Chief of Police
Phillips, who recommended that she replace him upon his retirement; and (9) had
successfully filled in as the acting Chief of Police when former Chief of Police
Phillips was out on medical leave. (R.R. at 112a, 152a-53a; Trial court op. at 7.)
             In addition, the Borough submitted a document detailing the general
statement of duties, typical examples of work, and desirable qualifications for the
Chief of Police position. In his deposition, Hoy testified that he met all of the
requirements for the position as outlined in this document. However, Hoy also
testified that he never prepared a budget for a police department; did not have
experience working with a mayor and/or council of a small borough; did not
specifically deal with MPOETC regulations while working for the Pennsylvania State
Police; and never had to patrol or visit the Borough for police-related business.
Nevertheless, Hoy proffered testimony from Borough residents who stated, in
general, that Hoy enjoys a good reputation in the community and expressed their
belief that he was more qualified for the position of Chief of Police than Beachy.
(R.R. at 94a-97a, 174a-75a, 234a-35a, 255a, 366a-69a.)
             At the close of discovery, on August 7, 2014, the Borough filed a motion
for summary judgment, contending that Hoy failed to adduce sufficient evidence to
make out a case for gender and/or age discrimination. By memorandum and order
dated March 9, 2015, the trial court granted the Borough’s motion.
             In its memorandum, the trial court first concluded that under the burden-
shifting paradigm for employment discrimination cases, Hoy failed to carry his initial
burden of establishing a prima facie case. In reaching this conclusion, the trial court
determined that, when compared, Hoy and Beachy were not “similarly situated
persons.” (Trial court op. at 4.) The trial court determined that, unlike Hoy, Beachy



                                           5
was an internal candidate that was already employed by the Borough and previously
served as its acting Chief of Police. Id. at 3-6.
             Next, the trial court concluded that even if Hoy established a prima facie
case of discrimination, the Borough offered nine legitimate, nondiscriminatory
reasons for selecting Beachy over Hoy. In doing so, the trial court stated:

             Promoting from within a department rather than hiring from
             outside is certainly lawful. The [Borough] Council’s
             decision to advertise the position and plumb the universe of
             qualified candidates, rather than simply adopting [former]
             Chief Phillip’s recommendation, should not open the
             Borough to charges of discrimination by any rejected
             applicant whose gender, age, race, etc., differed from
             Beachy’s.

                                      *     *       *

             The only hiring reason which Hoy maintains lacks credulity
             is Beachy having been already employed by the Borough
             and having acted during Chief Phillip’s leave of absence as
             police chief, which he contends is “highly inconsistent”
             with advertising the position.        On the contrary, the
             [Borough] may have advertised for the sake of appearances,
             thereby hiding its lawful predisposition to promote Sergeant
             Beachy . . . . [Hoy] challenges each other reason with only
             his qualifications for the job, from which, he asserts,
             discriminatory motivation can be inferred. Equal or even
             superior qualifications do not suffice as evidence of pretext
             . . . . Not interviewing applicants to determine their
             qualifications may have been imprudent or ill-advised, but
             is not evidence of an intent to discriminate against Hoy on
             the basis of his age or gender.
(Trial court op. at 6-7.)




                                            6
              Hoy filed a notice of appeal,2 and the trial court ordered him to file a
Pa.R.A.P. 1925(b) statement. After Hoy filed his statement, the trial court relied
upon its memorandum and order dated March 9, 2015, to satisfy its obligations under
Pa.R.A.P. 1925(a) and justify its grant of summary judgment in favor of the Borough.


                                           Discussion
                            Employment Discrimination Law
              Here, Hoy asserted claims for gender and age discrimination under the
PHRA. Importantly, claims brought under the PHRA are analyzed under the same
standards as their federal counterparts and, therefore, Pennsylvania courts use federal
interpretations of the federal anti-discrimination statutes to guide and inform our
interpretations of the PHRA. Kroptavich v. Pennsylvania Power and Light Company,
795 A.2d 1048, 1055 (Pa. Super. 2002); see Sarullo v. United States Postal Service,
352 F.3d 789, 797-98 (3d Cir. 2003). In failure-to-hire employment discrimination
cases on the basis of sex or age, Pennsylvania courts employ a three-part burden
shifting analysis developed by the United States Supreme Court. Spanish Council of
York, Inc. v. Pennsylvania Human Relations Commission, 879 A.2d 391, 397 (Pa.
Cmwlth. 2005).
              Under this analytical model, a complainant is first required to establish a
prima facie case of discrimination. The Pennsylvania Supreme Court in General
Electric Corp. v. Pennsylvania Human Relations Commission, 365 A.2d 649 (Pa.
1976), adopted the United States Supreme Court’s analysis in McDonnell-Douglas
Corporation v. Green, 411 U.S. 792 (1973), for establishing a prima facie case,

       2
         Hoy’s notice of appeal was filed with the Superior Court, which, by per curiam order dated
April 13, 2015, transferred the appeal to this Court.



                                                7
which requires a complainant to demonstrate the following: (1) the complainant
belongs to a protected class; (2) he applied for a job for which the employer was
seeking applicants; (3) despite his qualifications, he was not hired; and (4) after the
rejection, the position remained open and the employer continued to seek applicants
from persons of complainant’s qualifications. McDonnell-Douglas, 411 U.S. at 802;
General Electric Corp., 365 A.2d at 655-56.         Notably, this prima facie test is
adaptable to accommodate differences in the nature of the discrimination alleged.
Allegheny Housing Rehabilitation Corp. v. Pennsylvania Human Relations
Commission, 532 A.2d 315, 317 (Pa. 1987). This standard is, to be sure, adaptable to
accommodate differences in the nature of the discrimination alleged (e.g., sex rather
than race) and in the action alleged to be improper (e.g., discharge rather than refusal
to hire). “The form it takes, however, must be appropriate to its function, which is to
eliminate the most common nondiscriminatory reasons for the employer’s action.”
Id. at 318 (citation omitted). Ultimately, the burden on the complainant of presenting
a prima facie case is “minimal.” Kroptavich, 795 A.2d at 1055.
             If the complainant establishes a prima facie case, a presumption of
discrimination arises, and the burden of production shifts to the employer to articulate
a legitimate, nondiscriminatory reason for the challenged employment decision.
Spanish Council of York, 879 A.2d at 397. However,

             [t]he employer’s burden in this second part is one of
             production, not persuasion, and thus involves no credibility
             assessment. If the employer articulates a legitimate
             business explanation, then the presumption of
             discriminatory intent created by the employee’s [prima
             facie] case is rebutted and the presumption simply drops out
             of the picture.
Kroptavich, 795 A.2d at 1055 (internal citations and quotations omitted).



                                           8
              Assuming the employer satisfies its burden of production at the second
stage, the third and final part of the analytical framework gives the complainant the
opportunity to show that the legitimate reasons proffered by the employer were
pretexts for what, in reality, was a discriminatory motivation. Id. If this complainant
satisfies this burden, the complainant will survive summary judgment and, at trial,
must convince the factfinder that not only was the employer’s proffered reason false,
but that the real reason was impermissible discrimination.                     Willis v. UPMC
Children’s Hospital of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015); see Kroptavich,
795 A.2d at 1055.

                               Stage One: Prima Facie Case
              On appeal,3 Hoy contends that the trial court committed legal error in
determining that he failed to state a prima facie case of discrimination on the basis
that he and Beachy were not similarly situated.                (See Trial court op. at 3-6.)
According to Hoy, the fourth element of a prima facie case of age or sex employment
discrimination can be satisfied by simply showing that he was not hired under
circumstances that raise an inference of discriminatory action.
              In response, the Borough asserts that the trial court properly held that
Hoy had failed to make out a prima facie case because he was unable to satisfy the


       3
          “Our standard of review of the grant of summary judgment is de novo and our scope of
review is plenary.” Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011). Summary judgment is
appropriate only in those cases where the record clearly demonstrates that there is no genuine issue
of material fact and that the moving party is entitled to judgment as a matter of law. Atcovitz v.
Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221-22 (Pa. 2002) (internal citations omitted). In
assessing a grant of summary judgment, an appellate court must view the record in the light most
favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of
material fact against the moving party. Id.




                                                 9
fourth element of the prima facie test: that is, he is not similarly situated to Beachy
because Beachy was an internal candidate and Hoy was not.
                 In a failure-to-hire case on the basis of sex, the United States Court of
Appeals for the Third Circuit, as well as other circuits, have concluded that the fourth
element of a prima facie case does not impose a similarly situated requirement or the
introduction of what is commonly referred to as comparator evidence. Sarullo, 352
F.3d at 798 n.7 (“The defendants suggest that the fourth element requires a showing
that ‘other similarly situated employees outside [the complainant’s] protected class
were more favorably treated under similar circumstances.’ . . . [T]hat is not the
current law in this or the majority of the circuits. . . . We require only that the plaintiff
show that the employer continued to seek out individuals with similar qualifications
after refusing to rehire the plaintiff under circumstances that raise an inference of
unlawful discrimination.”); see, e.g., Kendrick v. Penske Transportation Services,
Inc., 220 F.3d 1220, 1229 (10th Cir. 2000) (“[C]omparison to a person outside of the
protected class in the fourth prong of the prima facie case is unnecessary to create an
inference of discriminatory discharge.”).4 Instead, proof that a person outside of the
protected class was similarly situated, possessing nearly identical characteristics or
qualifications, although capable of contributing to the development of a prima facie
case,       is   most   appropriately    considered      after    the   employer       proffers    a
nondiscriminatory reason for its action. See Marzano v. Computer Science Corp.,
Inc., 91 F.3d 497, 510-11 (3d Cir. 1996) (“All employees can be characterized as

        4
          In the context where the employer takes disciplinary action against an employee, some
courts require that the complainant establish, as part of the prima facie burden, that the employer
treated similarly situated employees outside of the class more favorably. See Kampmier v. Emeritus
Corp., 472 F.3d 930, 939 (7th Cir. 2007). Because this is a failure-to-hire case, and not a situation
when an existing employee is reprimanded or discharged, we need not consider whether it is
absolutely necessary for a complainant to adduce such evidence in the latter types of cases.



                                                 10
unique in some ways and as sharing common ground with ‘similarly situated
employees’ in some other ways, depending on the attributes on which one focuses,
and the degree of specificity with which one considers that employee’s qualifications,
skills, tasks and level of performance . . . arguments as to the employee’s uniqueness
should be considered in conjunction with, and as part of, the employer’s rebuttal —
not at the prima facie stage.”); Conward v. Cambridge School Committee, 171 F.3d
12, 19-20 (1st Cir. 1999) (“[T]he time to consider comparative evidence in a
disparate treatment case is at the third step of the burden-shifting ritual, when the
need arises to test the pretextuality vel non of the employer’s articulated reason for
having acted adversely to the plaintiff’s interests.”).
             In an age discrimination case, the United States Court of Appeals for the
Third Circuit has held that the fourth element of a prima facie case is satisfied where
the complainant can point “to a sufficient age difference between himself and his
replacement such that a fact-finder can reasonably conclude that the employment
decision was made on the basis of age.” Sempier v. Johnson & Higgins, 45 F.3d 724,
729 (3d Cir. 1995). The court in Sempier further explained: “Nor is there any
particular age difference that must be shown. Different courts have held, for instance,
that a five year difference can be sufficient, but that a one year difference cannot.”
Id. at 729 (citations omitted). Applying these principles, the court concluded that a
fourteen year difference in age “is clearly sufficient to satisfy the fourth prong of a
prima facie case by raising an inference of age discrimination.” Id. at 730; see
Maxfield v. Sinclair International, 766 F.2d 788, 793 (3d Cir. 1985) (holding that a
“plaintiff may establish the fourth element of the . . . test for a prima facie case by
showing that s/he was replaced by a person sufficiently younger to permit an
inference of age discrimination” and concluding that the plaintiff’s replacement by an



                                            11
employee more than twenty years younger was sufficient to satisfy this test). Apart
from showing age differential, the fourth element of a prima facie case does not
require that the complainant and the hired employee be similarly situated.
            Therefore, based upon this case law, we conclude that the trial court
erred as a matter of law in requiring Hoy to demonstrate that he and Beachy were
similarly situated – in the sense that both were internal candidates from within the
Borough’s police force – as a necessary predicate in order to make out a prima facie
case.
            Hoy also argues that, irrespective of whether he was required to establish
that he and Beachy were similarly situated, he met his burden at the prima facie
stage.   The United States Supreme Court has cautioned that the prima facie
requirement for making out a discrimination claim “is not onerous” and poses “a
burden easily met.” Texas Department of Community Affairs v. Burdine, 450 U.S.
248, 253 (1981); see Marzano, 91 F.3d at 508 (describing the burden of presenting a
prima facie case as “relatively simple” and “easily made out”) (citations omitted).
For purposes of this appeal, we assume, without expressly deciding, that Hoy met the
initial burden of demonstrating a prima facie case. The record establishes that Hoy,
at first blush, was objectively qualified for the position of Chief of Police and the
Borough decided to a hire a substantially younger (approximately twenty-six years
younger) female instead. To us, these facts appear to be enough to sustain the burden
of proving a prima facie case. See, e.g., Equal Employment Opportunity Commission
v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193-94 (10th Cir. 2000); Evans
v. Technologies Applications, 80 F.3d 954, 959-60 (4th Cir. 1996); see also Sempier,
45 F.3d at 729-30.




                                          12
             Regardless of the trial court’s legal error in requiring a showing that the
complainant and hired employee were similarly situated at the prima facie stage, the
use of comparator evidence and the concept of similarly situated employees often
converge at both the prima facie and pretextual stages. See Coleman v. Donahoe,
667 F.3d 835, 846 (7th Cir. 2012). Consequently, the trial court’s legal error does not
automatically dictate reversal; rather, in order for a trial court’s erroneous
determination to be reversible, it must be harmful or prejudicial to the complaining
party. Garner v. Pennsylvania Human Relations Commission, 16 A.3d 1189, 1200
(Pa. Cmwlth. 2011).


Stages 2 and 3: Legitimate, Nondiscriminatory Reason and Evidence of Pretext
             In this case, the parties do not dispute that the Borough satisfied its
rebuttal burden of proffering legitimate, nondiscriminatory reasons for not hiring
Hoy. (Hoy’s brief at 30; the Borough’s brief at 32.) As a result, the burden shifted
back to Hoy to demonstrate that the Borough’s reasons were a pretext for a
discriminatory motive. Here, the trial court held, in the alternative, that even if Hoy
established a prima facie case, he did not adduce sufficient evidence of pretext.
(Trial court op. at 6-7.) If the trial court is correct, then its legal error described
above is a harmless technicality and will not serve as a ground for reversal. See
Henley v. Zoning Hearing Board of West Fallowfield Township, 625 A.2d 132, 134
n.4 (Pa. Cmwlth. 1993) (“Even if this Court agrees that [the complaining party] met
this initial burden, because we hold that the five other requirements were not met,
such error is harmless.”).    The defining issue, therefore, becomes whether Hoy
adduced sufficient evidence of pretext to withstand summary judgment.




                                          13
             In this regard, Hoy asserts that the Borough’s reasons were pretextual in
a collage of arguments, first pointing out that all of the twenty-six applicants,
including himself, were male, and that the only female in the mix, Beachy, was hired.
He then attempts to attack the Borough’s reasons by comparing his experience and
qualifications with that of Beachy’s, contending that he worked for twenty-five years
with the Pennsylvania State Police and supervised nine to ten officers, while
Beachy’s background “pales in comparison.” (Hoy’s brief at 33.)
             In a similar vein, Hoy posits that he:      “has as much, if not more,
community involvement” than Beachy; never was interviewed and, therefore, did not
have the chance to prove that he has a “positive attitude” like Beachy; is “fully
capable of following a budget;” “is dependable” and submitted letters of
recommendation from his superior officers; and adduced evidence “that the
reputation of the police department with the community declined after Beachy’s
appointment.” Id. at 33-41. Continuing onward, Hoy asserts that the Borough’s
justifications for hiring an internal applicant are inconsistent with the fact that the
Borough advertised for the position of Chief of Police. For these reasons, Hoy claims
that genuine issues of material fact exist as to whether the Borough’s reasons for not
hiring him were a pretext for age and/or gender discrimination.
             Conversely, the Borough argues that Hoy’s proposed evidence is
woefully inadequate to prove pretext. The Borough submits that, unlike Beachy, Hoy
had never worked for the Borough; did not receive recommendations from the
Borough’s citizens; did not have experience handling police business in a small town;
never served as acting Chief of Police of the Borough; and did not receive an
endorsement from the prior Chief of Police.




                                          14
              In addition, the Borough asserts that even if Hoy possessed equal or
somewhat superior qualifications, this does not prove pretext because an examination
of qualifications is only relevant as to whether the Borough made the “right” hiring
decision and does not tend to establish a discriminatory motive. According to the
Borough, it is not within the discretion of the courts to re-write an employer’s hiring
policy and courts are ill-equipped to assume the role of a hiring committee.
              Under the law, there are two ways in which a complainant can
demonstrate that the employer’s legitimate, nondiscriminatory reasons were
pretextual; that is, a mask for discrimination. Willis, 808 F.3d at 644.
              The first way to show pretext is for the complainant to point to evidence
that would allow a factfinder to disbelieve the employer’s reason for the adverse
employment action.      Id. at 644 (citation omitted).     In order to raise sufficient
disbelief,    the   complainant   must    point   to   “weaknesses,        implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons [such] that a reasonable factfinder could rationally find them
unworthy of credence and hence infer that the proffered nondiscriminatory reason did
not actually motivate the employer’s action.”          Kroptavich, 795 A.2d at 1059
(citations omitted). With respect to the employer’s business reasons for not hiring a
complainant, the question is not whether the employer made the best, or even a
sound, business decision; instead, it is whether the real reason for the employment
decision is discrimination. Keller v. ORIX Credit Alliance, 130 F.3d 1101, 1109 (3d
Cir. 1997).
              The second way a complainant can establish pretext is to point to
evidence that would allow a factfinder to believe that an invidious discriminatory
reason was “more likely than not a motivating or determinative cause” of the



                                           15
employer’s action. Willis, 808 F.3d at 645.       As the Court in Willis explained,
pointing to evidence demonstrating any of the following satisfies this second way to
prove pretext: (1) the employer previously discriminated against the complainant; (2)
the employer discriminated against others within the complainant’s protected class; or
(3) the employer has treated similarly situated individuals or “comparators” more
favorably. Id. at 645 (citations omitted). With respect to the third means by which to
establish pretext, although “similarly situated” does not mean that the complainant
and comparators must be “identically situated,” a complainant must demonstrate that
his alleged comparators are “alike in all relevant respects.”     Startzell v. City of
Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008).
            In conducting this pretext analysis, though, the United States Supreme
Court has emphasized that “a reason cannot be proved to be a pretext for
discrimination unless it is shown both that the reason was false, and that
discrimination was the real reason.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502,
515 (1993) (emphasis in original, citation and internal quotation marks omitted).
            At the outset, we note that Hoy does not contend that the Borough
previously discriminated against him or has a history of discriminating against others
who were males or over the age of forty. Significantly, the fact that the Borough
preferred to hire an internal candidate who had received the recommendation of the
previous Chief of Police is a legitimate and compelling reason not to hire Hoy, who
was an external candidate with no such recommendation. See Perkins v. Doyon
Universal Services, 151 P.3d 413, 417 (Alaska 2006) (“Preferring internal candidates
is a legitimate and non-discriminatory reason for [the employer’s] action with respect
to this position.”); Summers v. Harvard University, 397 F.Supp. 2d 166, 173 (D.
Mass. 2005). These same facts also establish that Beachy, Hoy, and the remaining



                                          16
male applicants are not similarly situated persons (or sufficient comparators) for
purposes of proving pretext. See also Royster v. Laurel Highlands School District,
994 F.Supp. 2d 701, 714 (W.D. Pa. 2014) (concluding that the internal and external
candidates were not similarly situated individuals for purposes of establishing
pretext).
             Contrary to Hoy’s argument, the Borough’s preference toward an
internal applicant is in no way undermined by the fact that it advertised the position
to outside candidates. There is nothing in the record to infer that the Borough’s
decision to advertise the position was for any reason other than that the Borough
sought to find candidates that were potentially more suitable than Beachy but its
pursuit proved to be unsuccessful.      Therefore, Hoy has not produced sufficient
evidence under the second Willis standard for proving pretext, and, unless he can
establish   demonstrable       weaknesses,        implausibilities,      inconsistencies,   or
contradictions in the Borough’s proffered legitimate reasons (the first Willis standard
for proving pretext), the trial court properly entered summary judgment in favor of
the Borough.
             As evidenced from Hoy’s arguments reproduced above, the gravamen of
his point can be summed up from an excerpt from his brief: “Hoy’s experience as a
[twenty-five-year] state police veteran trumps [Beachy’s] small town police work
experience.” (Hoy’s brief at 34.) Although Hoy asserts that he is “more qualified
and had more experience in police work” than Beachy, he admits that “both were
objectively qualified to perform the Chief of Police position.” (Id. at 27.)
             “To   discredit   the employer’s         proffered       reason,   however,    the
[complainant] cannot simply show that the employer’s decision was wrong or
mistaken, since the factual dispute at issue is whether discriminatory animus



                                             17
motivated the employer, not whether the employer is wise, shrewd, prudent, or
competent.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). This proposition
stems from the concept that courts “will not second guess business decisions made by
employers, in the absence of some evidence of impermissible motives.” Lucas v.
Dover Corp., 857 F.2d 1397, 1403-04 (10th Cir. 1988). In determining whether to
hire a candidate, an employer can rely not only on objective facts, but also on
subjective reasons and/or characteristics that it believes renders a particular candidate
most suitable for the position. Chapman v. AI Transport, 229 F.3d 1012, 1033-34
(11th Cir. 2000) (en banc). As the United States Supreme Court has stated: “[T]he
employer has discretion to choose among equally qualified candidates, provided the
decision is not based upon unlawful criteria. The fact that a court may think that the
employer misjudged the qualifications of the applicants does not in itself expose him
to . . . liability.” Burdine, 450 U.S. at 259. To be sure, a complainant “may not
establish that an employer’s proffered reason is pre-textual merely by questioning the
wisdom of the employer’s reasons, at least not where . . . the reason is one that might
motivate a reasonable employer.” Combs v. Plantation Patterns, 106 F.3d 1519,
1543 (11th Cir. 1997).
               Although evidence showing that an employer hired a less qualified
applicant over the complainant may be probative of whether the employer’s proffered
reason for not promoting the plaintiff was pretextual, a complainant cannot establish
pretext simply by showing that she is more qualified than the person hired. Cofield v.
Goldkist, Inc., 267 F.3d 1264, 1268 (11th Cir. 2001).
               In Deines v. Texas Department of Protective & Regulatory Services, 164
F.3d 277 (5th Cir. 1999), the United States Court of Appeals for the Fifth Circuit
stated that:



                                           18
            [D]isparities in qualifications must be of such weight and
            significance that no reasonable person, in the exercise of
            impartial judgment, could have chosen the candidate
            selected over the plaintiff for the job in question. This
            evidentiary standard does not alter the plaintiff’s
            evidentiary burden to prove the fact of intentional
            discrimination by a preponderance of the evidence. Instead,
            the standard only describes the character of this particular
            type of evidence that will be probative of that ultimate fact.
Id. at 280-81. The court concluded that: “It is hardly a basis for the jury to find
mendacity on the part of the employer when its judgments on qualifications are
somewhere within the realm of reason. There is then, for the purposes of proving
pretext, a difference in simply ‘second-guessing’ an employer’s judgment and finding
proof of mendacity.” Id. at 282.
            In Simms v. Oklahoma ex rel. Department of Mental Health and
Substance Abuse Services, 165 F.3d 1321 (10th Cir. 1999), the United States Court of
Appeals for the Tenth Circuit articulated a similar evidentiary burden for proving
pretext. The court explained that:

            an employee’s own opinions about his . . . qualifications [do
            not] give rise to a material factual dispute . . . . When two
            candidates are equally qualified in that they both possess
            the objective qualifications for the position and neither is
            clearly better qualified, it is within the employer’s
            discretion to choose among them so long as the decision is
            not based on unlawful criteria.
Id. at 1329-30 (internal quotations and citations omitted). The court emphasized that
its “role is to prevent unlawful hiring practices, not to act as a ‘super personnel
department’ that second-guesses employers’ business judgments.” Id. at 1330.
            Here, in his brief, Hoy concedes that both he and Beachy were
objectively qualified for the position. (Hoy’s brief at 27.) This Court has held that


                                         19
“[a] party’s statements in its brief . . . are treated as a judicial admission.”
Bartholomew v. State Ethics Commission, 795 A.2d 1073, 1078 (Pa. Cmwlth. 2002)
(citation omitted). Judicial admissions are formal concessions “which have the effect
of withdrawing a fact from issue and dispensing it without the need for proof of the
fact.” Id. At the end of the day, Hoy’s factual concession is fatal to his arguments on
appeal and, under the law enunciated above, conclusively establish that he cannot
prove pretext.
             Moreover, the evidence of record supports the reasons given by the
Township for choosing Beachy as uniquely qualified for the position and at least as
qualified as Hoy in this regard. The Township considered that Beachy had worked
for the Borough’s police department as a Sergeant, temporarily served as its Chief of
Police, had recommendations from a number of residents, acquired budget experience
and experience with enforcement of local ordinances in the Township, was mentored
by the Chief of Police and had his recommendation. The record does not reflect a
disparity in qualifications great enough to qualify as pretext, and, as such, a
reasonable jury could not legitimately infer that the Borough consciously selected a
less-qualified and unworthy candidate “unless some other strong consideration, such
as discrimination, enter[ed] into the picture.” Aka v. Washington Hospital Center,
156 F.3d 1284, 1294 & 1299-1300 (D.C. Cir. 1998) (en banc). Even if this Court in
recognizing Hoy’s twenty-five years of service as a Pennsylvania State Trooper,
disagreed with the Borough’s determination that Beachy was the superior candidate
for the position of Chief of Police, the parties do not dispute that the Borough met its
rebuttal burden of proffering nondiscriminatory reasons for not hiring Hoy and we
simply cannot conclude, based upon the current record, that the Borough’s proffered
justifications for preferring Beachy over Hoy were so unworthy of credence as to



                                          20
support a finding of discriminatory intent.5, 6 The trial court, accordingly, did not err
in granting summary judgment in favor of the Borough.


                                           Conclusion
               For the above-stated reasons, we conclude that the trial court committed
legal error in determining that Hoy, as a necessary predicate to establishing a prima
facie case, was required to show that he and Beachy were similarly situated.
However, this error was harmless and had no effect on the trial court’s ultimate
disposition of this case. As more fully explained in our memorandum opinion, Hoy’s
admission in his brief defeats his claims as a matter of law and his evidence is legally
insufficient to establish that the Borough’s legitimate, nondiscriminatory reasons for

       5
           Hoy further contends that the Borough “touted the fact that Beachy was the first female
Chief of Police for the Borough according to an article that appeared in the Meadville newspaper.”
(Hoy’s brief at 28.) To the contrary, there is nothing in the article to suggest that the Borough made
any gender-biased comments in the article; indeed, Waite testified that he was not aware that
Beachy was the first female Chief of Police in the county until he read the article. (R.R. at 309a.)
Moreover, the only portion of the article cited by Hoy and contained in the reproduced record is the
cover page of the newspaper, which contains the caption “Historic hire,” a picture of Beachy, and
the following statement: “Beachy is new chief of the [Borough’s] Police Department and the first
woman chief of police in Crawford County.” (R.R. at 393a.) Even if this statement is true and
could somehow be attributed to the Borough, it does not support an inference of discriminatory
intent. If it could, then any company would be subjected to discrimination liability on the sole basis
that it hired its first black, female, Irish, etc. individual at a certain position.

       6
         Hoy also references the fact that the Borough’s rejection letters were dated June 27, 2012,
and although acknowledging that the uncontroverted evidence establishes that this was a
typographical error, he seems to suggest that the Borough Council hired Beachy at the June 19,
2012 executive session rather than at the July 2, 2012 Council meeting that was open to the public.
Assuming such an inference can be drawn from the evidence, we fail to see how it has any
probative force in proving pretext where the candidates were narrowed down to Beachy and Hoy at
the June 19, 2012 executive session. (R.R. at 294a-95a.) Regardless of when Beachy was officially
hired over Hoy, the decision was made and the issue in this case is whether the Borough engaged in
impermissible discrimination when it chose to hire Beachy instead of Hoy.



                                                 21
hiring Beachy were a pretext for discrimination. Therefore, the trial court properly
determined that the Borough was entitled to summary judgment as a matter of law.
            Accordingly, we affirm the trial court’s March 9, 2015 order.




                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge




                                        22
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William R. Hoy,                       :
                  Appellant           :
                                      :    No. 1005 C.D. 2015
            v.                        :
                                      :
Borough of Cochranton                 :



                                   ORDER


            AND NOW, this 21st day of December, 2016, the March 9, 2015 order
of the Court of Common Pleas of Crawford County is hereby affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
