                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-17-2008

Cerol v. Temple Univ
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3644




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"Cerol v. Temple Univ" (2008). 2008 Decisions. Paper 92.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/92


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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-3644


                             MARIE-JOSEE CEROL, DR.

                                           v.

                TEMPLE UNIVERSITY OF THE COMMONWEALTH
                      SYSTEM OF HIGHER EDUCATION


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                              (D.C. Civ. No. 06-00213)
                    Honorable Mary A. McLaughlin, District Judge


                      Submitted under Third Circuit LAR 34.1(a)
                                 December 3, 2008

                BEFORE: AMBRO, and GREENBERG, Circuit Judges,
                        and RODRIGUEZ, District Judge*

                               Filed: December 17, 2008


                              OPINION OF THE COURT


GREENBERG, Circuit Judge.

      This matter comes on before this Court on an appeal from an order of the District


*The Honorable Joseph H. Rodriguez, Judge of the United States District Court for the
 District of New Jersey, sitting by designation.
Court entered on August 16, 2007, granting summary judgment to defendant Temple

University in this action brought against it by plaintiff Marie-Josee Cerol, a French citizen

from Guadeloupe, charging that Temple denied her a promotion to full professor in its

Department of African-American Studies by reason of national origin discrimination and

in retaliation for her earlier having filed a charge against Temple with the EEOC. See

Cerol v. Temple Univ., Civ. No. 06-00213, 2007 U.S. Dist. LEXIS 60056 (E.D. Pa. Aug.

16, 2007). Cerol filed the underlying EEOC charge because Temple allegedly denied her

merit salary increases because of the place of her national origin.

       Cerol brought this action under both Title VII and the Pennsylvania Human

Relations Act (“PHRA”), but, as the District Court noted, in this case the same standards

and decisional law apply to retaliation claims under both statutes. See Slagle v. County

of Clarion, 435 F.3d 262, 265, 265 n.5 (3d Cir. 2006). Inasmuch as Cerol abandoned her

national origin claim in the District Court, we are concerned only with her retaliation

claim. The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367, and

we have jurisdiction under 28 U.S.C. § 1291.

       The law governing this appeal is quite clear. We exercise plenary review over the

order of the District Court. See Baer v. Chase, 392 F.3d 609, 615 (3d Cir. 2004). Thus,

we determine whether when Temple moved for summary judgment, the pleadings,

deposition, answers to interrogatories, admissions, and affidavits showed that “there

[was] no genuine issue as to any material fact” and it was “entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). The burden-shifting law with respect to Title VII

                                             2
and the PHRA is equally clear and follows the framework that the Supreme Court

established 35 years ago in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93

S.Ct. 1817, 1824-25 (1973). As the District Court said:

       Under this framework, a plaintiff must first establish a prima facie case of
       retaliation. If the plaintiff succeeds, the burden shifts to the defendant to
       articulate some legitimate, nondiscriminatory reason for its actions. Should
       the defendant carry this burden, the plaintiff must convince the factfinder
       that this explanation was a pretext and that retaliation was the real reason
       for the adverse employment action.

Cerol, 2007 U.S. Dist. LEXIS 60056, at *21 (internal quotation marks and citation

omitted). The District Court concluded that Cerol had “failed to provide sufficient

evidence to establish a prima facie case or permit an inference that [Temple’s]

explanation for its action was pretextual.” Id.

       After our review of this matter, we have concluded that we are in full accord with

both the District Court’s analysis and the result it reached, and inasmuch as the District

Court’s opinion includes all of the facts and its reasoning we need not repeat what it said.

We, however, do add two points to its opinion. First, Cerol could prevail only if a court

adopted as the law a theory that once an employee files a discrimination case against an

employer, in any subsequent retaliation action predicated on the employer having taken

an adverse action against the employee, the complaint creates a jury question surviving

the employer’s motion for summary judgment no matter what evidence the employer

presents supporting its motion. Certainly that formulation is not the law and courts

should not adopt it as such.


                                              3
       Second, Cerol makes the following point:

       by email dated December 1, 2003, Susan Herbst, not the College Promotion
       Committee, informed Appellant on behalf of the Committee ‘her two books
       written in French will need to be translated, since the Committee cannot
       read it and therefore cannot evaluate it.’ Herbst knew this request was
       physically and economically impossible to do within ten days. Dean Herbst
       completed her email with the helpful suggestion ‘I suggest you withdraw
       your case until you can provide the above. Thank you.’ Cerol was being
       jerked around by Temple and she knew [it]. She refused to withdraw. She
       was in a no win ‘jump or be pushed’ situation and she knew it. She decided
       not to make it easy for Temple.

Appellant’s br. at 13-14 (footnote and record citations omitted). In a footnote to the

foregoing quotation Cerol set forth the following point: “With less than ten days to go of

consideration of this promotion, [Susan Herbst] demanded that [Cerol] have two of her

books, which were authored in French, translated into English.” Id. at 13 n.3.

       We do not doubt that Cerol could not obtain the requested translations within ten

days. Nevertheless, it cannot be argued reasonably that it was wrong for Herbst on behalf

of the Committee to request them. Yet Cerol makes the unappealing argument that when

Herbst informed her that her books had to be translated to English and suggested that she

withdraw her application until she could provide the translations, she, Cerol, was being

“jerked around.”

       Even if we assume that Temple could have made the request for translations

sooner, surely Herbst’s suggestion that Cerol withdraw her case until she could provide

them was reasonable. After all, Herbst suggested a procedure that preserved Cerol’s right

to seek a promotion to professor. In sum, we find that the request for translations, even


                                             4
though part of a larger picture that Cerol presented, cannot be a basis for a retaliation

lawsuit against Temple.

       For the foregoing reasons and for the reasons the District Court set forth, we will

affirm the order of August 16, 2007, granting Temple summary judgment.




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