                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 17-2982
                                      ____________

                                 MATTIE M. COOPER,
                                           Appellant

                                             v.

                  THOMAS JEFFERSON UNIVERSITY HOSPITAL
                               ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (E. D. Pa. No. 2-16-cv-05587)
                      District Judge: Honorable Timothy J. Savage
                                      ____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   April 10, 2018

            Before: CHAGARES, VANASKIE and FISHER, Circuit Judges.

                                 (Filed: August 20, 2018)
                                      ____________

                                        OPINION*
                                      ____________



FISHER, Circuit Judge.




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       Mattie M. Cooper, an African American registered nurse, was terminated by her

employer, Thomas Jefferson University Hospital, after she allowed her nursing license to

expire. Cooper sued the hospital under 42 U.S.C. § 1981 for race discrimination. After

discovery, the District Court entered summary judgment in the hospital’s favor. Cooper

appeals. We will affirm.

                                             I.

       In Pennsylvania, individuals employed as registered nurses must be licensed.1

They also must renew their licenses every two years, and all state requirements must be

met before a renewed license can be issued.2 Starting in January 2015, in addition to

requiring a license fee and 30 continuing education units, the Commonwealth began

requiring registered nurses to take a three-hour course in child abuse recognition and

reporting.3

       Federal law requires that hospitals accepting federal Medicare and Medicaid funds

ensure that their employees comply with state licensing requirements.4 Accordingly,

Thomas Jefferson University Hospital offered on-site continuing education and issued its

own reminders of license renewal deadlines. The hospital’s Policy 200.04 made the

“employee . . . responsible for completing the necessary procedures for renewal of his/her



1
  28 Pa. Code § 109.7.
2
  49 Pa. Code § 21.29.
3
  63 Pa. Stat. § 222; 23 Pa. Stat. § 6383.
4
  42 C.F.R. § 482.11.

                                             2
license.”5 The policy established processes for verifying license renewal and suspending

employees who did not renew in advance of the deadline. It provided a ten-business-day

grace period after expiration, but ultimately prescribed termination for any employee who

failed to renew a required license.

        Cooper became a registered nurse in 1981 and began working as a staff nurse at

Jefferson Hospital in 2007. She was due to renew her license on October 31, 2015, as had

been required every two years throughout her career. Although she had paid the fee and

obtained the required continuing education units, her license expired on October 31

because she had not completed the newly-mandatory child abuse class. Cooper continued

to work and completed the class online on November 16; her renewed license was issued

the next day. Also on November 16, human resources manager Kathleen Shannon

recommended that Cooper’s employment be terminated for failing to meet job

requirements by not renewing her nursing license and working without a valid license.

On November 18, Shannon met with Cooper and terminated her.

        Cooper argues that her supervisor, Barbara Alpini, engaged in discriminatory

behavior at various times during Cooper’s employment. However, Alpini went on

medical leave on November 16 and did not return for more than a month. Alpini,

therefore, did not make the termination decision—a fact that Cooper does not dispute.




5
    App. 185-87.

                                            3
         Cooper filed a grievance, and the hospital sustained the termination. After filing a

complaint with the Equal Employment Opportunity Commission, Cooper brought suit

against the hospital in the District Court.

         Cooper alleged that she was terminated due to race discrimination—specifically,

Alpini’s personal bias and Alpini’s resentment over Cooper’s complaints that Alpini

made professional decisions based on race. Cooper also contended that the hospital’s

failure to suspend her in accordance with Policy 200.04 evidenced a discriminatory plan

to terminate her employment. Being suspended, she says, would have made it clear to her

that her license had not yet renewed. Having not been suspended, Cooper worked

throughout the first two weeks of November with an expired license. Yet Cooper

admitted that license renewal was her duty.

         Following discovery, the District Court granted the hospital’s motion for summary

judgment because Cooper did not establish a prima facie case of discrimination. Cooper

appeals.

                                              II.

         The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate

jurisdiction under 28 U.S.C. § 1291. We review a grant of summary judgment de novo. 6

Summary judgment is appropriate when, viewing the facts in the light most favorable to




6
    S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 256 (3d Cir. 2013).

                                               4
the non-movant, there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law.7

                                              III.

       On appeal, Cooper contends that she established a prima facie case of race

discrimination. She also argues that the hospital did not advance a legitimate non-

discriminatory reason for terminating her, and that the given reason was pretextual.

                                                A.

       Cooper does not present direct evidence that her termination was discriminatory.

Rather, she relies on the well-established McDonnell Douglas burden-shifting framework

to argue that discrimination may be inferred.8

       Under McDonnell Douglas, the employee must make out a prima facie case of

intentional discrimination.9 Whether the employee has done so is a question of law for

the court.10 If the plaintiff establishes a prima facie case, the defendant has a “relatively

light burden” to produce evidence of a legitimate, non-discriminatory reason for its

actions.11 The burden then shifts back to the plaintiff to show that the given reason was a

pretext for the defendant’s actual discriminatory motive.12 To avoid summary judgment,



7
  Id.; Fed. R. Civ. P. 56(a).
8
  McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
9
  Id. at 802.
10
   Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003).
11
   Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).
12
   McDonnell Douglas, 411 U.S. at 804.

                                               5
then, Cooper needed to establish a prima facie case of discrimination and produce

evidence that would allow a factfinder to reasonably conclude that any non-

discriminatory reasons articulated by the hospital were pretextual.13

       In order to establish a prima facie case of discrimination under McDonnell

Douglas, the plaintiff must prove that (1) she is a member of a protected class; (2) she

was qualified for the position; (3) she suffered an adverse employment action; and (4) the

circumstances could give rise to an inference of unlawful discrimination.14 Such an

inference may be drawn if the plaintiff identifies “a similarly situated individual outside

of the protected class, who engaged in the same conduct but was treated more

favorably.”15 There is no dispute that Cooper meets the first and third prongs: as an

African-American, she a member of a protected class, and her termination is an adverse

employment action.

       A plaintiff is not qualified for a position, as required by the second prong—and

her prima facie case fails—if there is objective evidence she did not possess minimal job

qualifications such as “a license or a similar prerequisite.”16 Cooper says she was

minimally qualified because on the date of her termination, she had a valid license. The

hospital says she was not minimally qualified because before she was terminated, she



13
   Fed. R. Civ. P. 56(c), (e); see also Fuentes, 32 F.3d at 763.
14
   Mandel v. M & Q Packaging Corp., 706 F.3d 157, 169 (3d Cir. 2013).
15
   Id. at 170.
16
   Makky v. Chertoff, 541 F.3d 205, 216 (3d Cir. 2008).

                                             6
worked for several days without a license. We think it unlikely that an employee who

lacks a required license for some period of time during her employment is minimally

qualified for her position.

       We need not resolve the minimal qualifications question, however, because

Cooper’s prima facie case falls short elsewhere. She did not establish the fourth element:

that the circumstances could give rise to an inference of unlawful discrimination. A

plaintiff may meet this fourth element by presenting evidence that similarly situated

employees outside the protected class were treated more favorably, but Cooper does not

pursue that strategy.17 Instead, she asserts that she should have been suspended under

Policy 200.04, and the fact that she was not suspended, but terminated, could give rise to

an inference of discrimination.

       Cooper bases this argument on a step-by-step recounting of the timeline leading up

to her termination. For example, Cooper argues that Alpini should have suspended her

when she failed to renew her license five days before the renewal deadline, as Policy

200.04 provided. Alpini spoke with Cooper at that point, and Cooper told Alpini that she

had renewed her license, offering to produce the receipt for the license fee payment.

Alpini “claims she took Ms. Cooper at her word, despite the fact that the only acceptable

proof of license renewal is the license itself.” Appellant’s Br. 29. Because Alpini took


17
   Cooper argued in the District Court that a white nurse was allowed to work without a
license in 2009, but her argument was contradicted by the hospital’s records and Alpini’s
testimony. Cooper abandoned the argument on appeal.

                                             7
Cooper at her word, she did not suspend her, but continued to put her on the nursing

schedule. Cooper argues that Alpini should have suspended her.

       Cooper argues, in other words, that the facts give rise to an inference of

discrimination because her supervisor gave her the benefit of the doubt and believed her

when she said she had renewed her license. We disagree that supervisory forbearance and

trust give rise to an inference of discrimination. The remainder of the timeline leading to

Cooper’s termination likewise lacks any whiff of discrimination, and therefore similarly

fails to give rise to the required inference.

       Cooper also argues that there could be an inference of discrimination because

Alpini made supervisory decisions based on race—something Cooper had complained

about in the past. Cooper admits, however, that Alpini did not terminate her; Alpini was

on leave, and HR manager Kathleen Shannon made the decision.

       Therefore, Cooper failed to make out a prima facie case, and the District Court

correctly granted summary judgment.

                                                B.

       Because Cooper failed to establish a prima facie case of discrimination, the

District Court did not proceed further with the McDonnell-Douglas burden-shifting

analysis. However, the record shows that the hospital’s proffered reason for terminating




                                                8
Cooper was legitimate, non-discriminatory, and non-pretextual. This is an alternative

ground for affirmance.18

       Where the defendant establishes a legitimate non-discriminatory reason for

termination, the burden shifts back to the plaintiff to prove the reason is pretextual.19 To

show pretext, the plaintiff must offer evidence that “(1) casts doubt upon the legitimate

reason proffered by the employer such that a fact-finder could reasonably conclude that

the reason was a fabrication; or (2) would allow the fact-finder to infer that

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

employee’s termination.”20

       Policy 200.04, the hospital’s cited reason for terminating Cooper, provided for the

termination of any employee who failed to renew a required license within ten business

days of its expiration. Cooper contends this was not a legitimate, non-discriminatory reason

because neither state law nor the hospital’s accrediting body required termination. In other

words, Cooper argues that in order to be legitimate and non-discriminatory, Policy 200.04

needed to be embodied in a statute or accreditation requirement. Cooper cites no authority

to support this novel position, which is entirely unpersuasive. Her argument amounts to an

attack on the strength or wisdom of the policy, but we are not an “arbitral board[] ruling on


18
   Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (“We . . . may affirm the District
Court’s judgment on any basis supported by the record.”).
19
   Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Doe v. C.A.R.S. Prot.
Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008).
20
   C.A.R.S. Prot. Plus, Inc., 527 F.3d at 370.

                                              9
the strength of cause for discharge. The question is not whether the employer made the

best, or even a sound, business decision; it is whether the real reason is discrimination.”21

Cooper has not pointed to evidence that would allow a factfinder to reasonably conclude

that the hospital’s articulated reason for termination was a pretext for discrimination.

       Cooper argues that Alpini’s asserted bias shows that the reason for termination was

pretextual. As explained, however, Alpini did not terminate Cooper. Therefore, Alpini’s

behavior does not establish that Policy 200.04 was merely a pretext for termination.

                                            IV.

       We will affirm the District Court’s judgment.




21
   Keller v. Orix Credit Alliance Inc., 130 F.3d 1101, 1109 (3d Cir. 1997) (alteration and
internal quotation marks omitted (quoting Carson v. Bethlehem Steel Corp., 82 F.3d 157,
159 (7th Cir. 1996)).

                                             10
