                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-30-1996

Geraci v. Moody-Tottrup Intl
Precedential or Non-Precedential:

Docket 95-3335




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Recommended Citation
"Geraci v. Moody-Tottrup Intl" (1996). 1996 Decisions. Paper 206.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/206


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                                              UNITED STATES COURT
                       OF APPEALS
                 FOR THE THIRD CIRCUIT


                      No. 95-3335


                PATRICIA MCGUIRK GERACI,

                                  Appellant


                             v.

         MOODY-TOTTRUP, INTERNATIONAL, INC.


(Caption amended as per Clerk's order dated 11-9-95.)


   ON APPEAL FROM THE UNITED STATES DISTRICT COURT
      FOR THE WESTERN DISTRICT OF PENNSYLVANIA
               (D.C. Civ. No. 94-01093)


                 Argued January 31, 1996

   Before:    GREENBERG, NYGAARD, Circuit Judges and
               LAY, Senior Circuit Judge298

             (Opinion Filed: April 30, 1996)


                                       DAVID J. LOZIER, ESQUIRE
                                                       (Argued)
                                                Cohen & DeRenzo
                                             Two Chatham Center
                                                      Suite 985
                                           Pittsburgh, PA 15219
                                         Attorney for Appellant

                                ELIZABETH A. MALLOY, ESQUIRE
                                                    (Argued)
                           Klett, Lieber, Rooney & Schorling
                                           One Oxford Centre
                                                  40th Floor
                                   Pittsburgh, PA 15219-6498
                                       Attorney for Appellee
                       OPINION OF THE COURT


NYGAARD, Circuit Judge.
     Patricia McGuirk Geraci sued her employer, alleging that she

had been unlawfully terminated because she was pregnant.      The

district court granted summary judgment to Geraci's employer

because she had not shown that the employer knew Geraci was

pregnant when it terminated her.     The district court held that

given this evidentiary hiatus, Geraci could not make out a prima

facie case of pregnancy discrimination.     We will affirm.

                                I.

     The facts of this case are set forth in the district court's

thorough opinion, and we need only summarize.    See Geraci v.
Moody-Tottrup Int'l, Inc., 905 F. Supp. 241, 243-45 (W.D. Pa.

1995).   Moody-Tottrup is in the business of inspecting pipe and

other materials.   It hired Geraci in 1987 as a Clerk Typist but

consistently promoted her, until she became an Inspection

Coordinator in 1991.   It appears from the record that Geraci was

an exemplary employee during her tenure at Moody.
     In the last week of 1992, Geraci suspected that she was

pregnant and performed a home pregnancy test; the results were

positive.   She decided not to inform management at that time,

however, fearing that she would not receive her annual raise

scheduled for January or February.     Geraci did tell six of her

twenty co-workers (none of whom were members of management), but

specifically asked them not to tell her superiors.     There is no
evidence that any of them did so, nor that management was

otherwise informed of Geraci's pregnancy at that time.

     In late January 1993, management laid Geraci off because of

a decline in company revenue.    It is undisputed that Moody

decided to lay Geraci off in mid-December, before Geraci herself

knew she was pregnant, but that it delayed telling her so as not

to ruin her holidays.

     When she was laid off, Geraci asked whether Moody would

rehire her should business improve.    Moody management advised her

that she would not be rehired, and that she should look for

another job.   Geraci then told Moody that she was pregnant. Moody

continued her health care benefits until after the baby was born

and gave her three weeks severance pay.

     A few months later, an advertisement appeared in the local

newspaper for what appeared to be the same position from which

Geraci had been terminated.   According to Moody, this position

arose to fill a large Malaysian contract, but the "Malaysian

people" wanted an inspection coordinator with "hands-on"

experience, which Geraci lacked.    In any event, Geraci did not

apply for this position, believing that it would be futile. Moody

asserts that because the Malaysian contract did not materialize,

the position was never filled.

     In June 1994, after exhausting her administrative remedies,

Geraci filed this suit in district court, alleging that Moody

terminated her in violation of Title VII of the Civil Rights Act

of 1964, specifically 42 U.S.C. §§ 2000e-2(a)(1), 2000e(k). After

discovery, Moody moved for summary judgment, asserting that,
because there was no evidence that anyone in management knew

Geraci was pregnant (either when Moody decided to terminate her

or when it informed her of its decision), Moody could not have

unlawfully discharged her because of her pregnancy.     The district

court agreed.   See Geraci, 905 F. Supp. at 245-48.

                               II.

                                A.

     Geraci has no direct evidence of unlawful discrimination.

Instead, she bases her suit on the familiar burden-shifting

framework first enunciated by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973) and

Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 252-56,

101 S. Ct. 1089, 1093-95 (1981).     Under that framework, Geraci

must first make out a prima facie case of unlawful

discrimination.   Once she has done so, the burden of production

then shifts to Moody to proffer a legitimate, nondiscriminatory

reason for discharging her, at which point the presumption of

discrimination arising from the prima facie case drops away,

leaving the burden on Geraci to prove that Moody's proffered

reasons were pretextual.

     Here, Moody argues that we need not consider its reasons for

terminating Geraci or whether they were pretextual, because

Geraci failed to meet her threshold burden.     We therefore begin

by determining the elements of the prima facie case of pregnancy

discrimination, aware that, if Geraci failed to raise a genuine

issue of material fact as to any of those elements, summary
judgment was properly granted.    E.g., Fowle v. C & C Cola, 868

F.2d 59, 62 (3d Cir. 1989).

                                  B.

     Were Geraci alleging that Moody terminated her solely

because she is a woman, she could make out her prima facie case

by merely showing that she is a member of a protected class, that

she was qualified for her position, and that she was discharged

"under conditions that give rise to an inference of unlawful

discrimination."     Burdine, 450 U.S at 253, 101 S. Ct. at 1093.

Although often overlooked, the requirement that the adverse

employment action occur "under circumstances that give rise to an

inference of unlawful discrimination" is a critical one that

weighs heavily in this case.

     The McDonnell Douglas-Burdine burden-shifting framework was

created because only rarely will a plaintiff have direct evidence

of discrimination.    Gone are the days (if, indeed, they ever

existed) when an employer would admit to firing an employee

because she is a woman, over forty years of age, disabled or a

member of a certain race or religion.    To allow those genuinely

victimized by discrimination a fair opportunity to prevail,

courts will presume that, once the plaintiff has shown the above

elements, unlawful discrimination was the most likely reason for

the adverse personnel action.    The elements of that prima facie

case, however, must not be applied woodenly, but must rather be

tailored flexibly to fit the circumstances of each type of

illegal discrimination.    See McDonnell Douglas, 411 U.S. at 802
n.13, 93 S. Ct. at 1824 n.13; Torre v. Casio, Inc., 42 F.3d 825,

830 (3d Cir. 1994).

     The traditional McDonnell Douglas-Burdine presumption quite

properly makes no reference to the employer's knowledge of

membership in a protected class because, in the vast majority of

discrimination cases, the plaintiff's membership is either patent

(race or gender), or is documented on the employee's personnel

record (age discrimination).   This case, however, is different.

We cannot presume that an employer most likely practiced unlawful

discrimination when it does not know that the plaintiff even

belongs to the protected class.   The employer's knowledge, in

this class of cases, is a critical element of the plaintiff's

prima facie case.   Indeed, it is counterintuitive to infer that

the employer discriminated on the basis of a condition of which

it is wholly ignorant, and in this situation the bare McDonnell

Douglas presumption no longer makes sense.

     In other cases involving personal attributes not obvious to

the employer, courts have regularly held that the plaintiff

cannot make out a prima facie case of discrimination unless he or

she proves that the employer knew about the plaintiff's

particular personal characteristic.   An employee's religion, for

example, is often unknown to the employer, and we have

accordingly required employees to inform their employers of their

religious beliefs in order to make out a prima facie case of

discrimination based on failure to make reasonable

accommodations.   See Protos v. Volkswagen, Inc., 797 F.2d 129,

133 (3d Cir.), cert. denied, 479 U.S. 972, 107 S. Ct. 474 (1986).
The same rule applies when the plaintiff alleges that she was

discharged on account of her religion.   See Beasley v. Health

Care Serv. Corp., 940 F.2d 1085, 1088 (7th Cir. 1991).

     Likewise, disabilities are often unknown to the employer,

and, because of that, the plaintiff must demonstrate that the

defendant employer knew of the disability to state a prima facie

case of unlawful discharge.   See Hedberg v. Indiana Bell Tel.

Co., 47 F.3d 928, 932-33 (7th Cir. 1995).   In Hedberg, a case

filed under the Americans With Disabilities Act, a manager

claimed he was dismissed because he had a life-threatening

disease, but the court held that he must show that the employer

knew of his illness, reasoning that an employer cannot fire

someone because of a disability it knows nothing about.   Id.;

accord Morisky v. Broward County, No. 95-4808, 1996 WL 137386, *3

(11th Cir. Apr. 11, 1996) (per curiam); Landefeld v. Marion Gen.

Hosp., 994 F.2d 1178, 1181-82 (6th Cir. 1993) (Rehabilitation Act

of 1973).

     Pregnancy, of course, is different in that its obviousness

varies, both temporally and as between different affected

individuals.   It is difficult to imagine that an employer would

not be aware that an employee is in the later stages of her

pregnancy; at least if the employer sees the employee.    When the

pregnancy is apparent, or where plaintiff alleges that she has

disclosed it to the employer, then a question of the employer's

knowledge would likely preclude summary judgment.   If the

pregnancy is not apparent and the employee has not disclosed it

to her employer, she must allege knowledge and present, as part
of her prima facie case, evidence from which a rational jury

could infer that the employer knew that she was pregnant.

                                 III.

     The application of this legal framework to the facts of

Geraci's case need not detain us long.    Geraci was not visibly

pregnant; indeed, even Geraci herself did not know until shortly

before she told her coworkers.    She did not tell Moody

management, and she requested that the six friends and co-workers

to whom she disclosed her pregnancy not tell management.

     Geraci argues that because she told six out of twenty co-

workers that she was pregnant and that her pregnancy became a

"common topic of discussion in the office," management must have

known it before they terminated her.    But her managers filed

declarations disclaiming knowledge, and Geraci presented no

evidence to the contrary.   Geraci deposed only one of those co-

workers whom she told of her pregnancy, and he testified that he

did not tell management that she was pregnant.    Thus, Geraci

would have us remand this case for trial on the sheer speculation

that one or more of the people she entrusted with highly personal

information violated her confidence and that members of Moody

management lied about their lack of knowledge.    This is simply

insufficient to create a genuine issue of material fact.    See

Hedberg, 47 F.2d at 932 (speculation about employer's knowledge

of disability does not create a genuine issue of material fact;

"instead, it creates a false issue, the demolition of which is a

primary goal of summary judgment").
     Moody also points to undisputed evidence in the record that

it decided to lay Geraci off before even she knew she was

pregnant.   Again, Geraci offers only speculation that Moody must

have really made its decision to terminate her in January rather

than in December.   For the reasons already set forth, we must

reject that speculation.

     Finally, Geraci relies on Fuentes v. Perskie, 32 F.3d 759,

765 (3d Cir. 1994), for the proposition that a "pattern of

discrimination" and evidence that defendant's asserted non-

discriminatory reason was a pretext, supports an inference that

defendant knew that she was pregnant.   That contention is

illogical and unsupported by that case.

     In Fuentes, we did say that a pattern of discrimination

could support an inference of pretext, but we did not hold that

evidence of pretext makes out the plaintiff's prima facie case.

Indeed, such a holding would make no sense.   Essentially, Geraci

argues that because Moody had treated women (including pregnant

women) badly in the past, it must have known that Geraci was

pregnant, because she was treated badly.   This is flawed

reasoning which warrants no discussion.

     All of Geraci's remaining contentions go to the issue of

pretext and given our conclusion that she has failed to make out

a prima facie case of pregnancy discrimination, we need not

discuss them.

                               IV.
        We find error in neither the district court's reasoning nor

its conclusion that Geraci failed to state a prima facie case. We

will therefore affirm its summary judgment.
  298
    Honorable Donald P. Lay, Senior Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.
