                                                               NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     __________

                                     No. 13-2839
                                     __________

                                 CASANDRA PAUL,
                                       Appellant

                                           v.

                                     HOVENSA
                                     __________

                On Appeal from the District Court of the Virgin Islands
                              (D.C. No. 1-07-cv-00051)
                   District Judge: Honorable Anne E. Thompson

                           ARGUED DECEMBER 12, 2013

            BEFORE: FISHER, COWEN, and NYGAARD, Circuit Judges


                                 (Filed: April 4, 2014)

Rhea R. Lawrence, Esq. [Argued]
Lee J. Rohn, Esq.
Lee J. Rohn & Associates
1101 King Street
Christiansted, VI 00820
       Counsel for Appellant

Stephanie L. Adler-Paindiris, Esq. [Argued]
Alicia M. Chiu, Esq.
Jackson Lewis
390 North Orange Avenue, Suite 1285
Orlando, FL 32801
Linda J. Blair, Esq.
Bryant, Barnes, Beckstedt & Blair
1134 King Street, 2nd Floor
P.O. Box 224589
Christiansted, St. Croix, VI 00820
       Counsel for Appellee

                                         __________

                                 OPINION OF THE COURT
                                       __________

NYGAARD, Circuit Judge.

         Cassandra Paul appeals the District Court’s grant of a motion for summary

judgment. She asserts error by the District Court for dismissing various claims under

Title VII,1 Americans with Disabilities Act,2 and the Virgin Islands Civil Rights Act.3

We will affirm.

         As this opinion lacks any precedential value, we write only for the benefit of the

parties whose familiarity with the case obviates the need for a full recitation of the facts

and procedural history. We exercise plenary review to the District Court’s grant of a

motion for summary judgment. Turner v. Hershey Chocolate U.S., 440 F.3d 604, 611

(3d Cir. 2006).

         We easily dispose of Paul’s contention that the District Court wrongly applied a

“but-for” standard, rather than a “motivating factor” test to review her Title VII, gender

discrimination claims. The District Court explicitly stated that it was the plaintiff’s

1
    42 U.S.C.A. § 2000e-2.
2
    42 U.S.C. §§ 12112.
3
    10 V.I.C. § 64.
                                               2
burden to demonstrate pretext by showing a factual dispute that discrimination was “more

likely than not a motivating factor.” Its analysis was consistent with this standard.

       As to the discrimination claims, we first consider Paul’s assertion that Hovensa

failed on two of her requests for accommodation under the ADA.4 Upon our review of

the record we conclude that the undisputed facts undermine both of her prima facie

claims for accommodation.

       Though Paul pressed a claim for failure to accommodate her mobility needs, the

District Court cited to numerous attempts by Hovensa to meet Paul’s request for work-

site transportation. In light of these efforts, we conclude that Hovensa’s denial of her

preferred accommodation, permission to drive her car onto terminal grounds, does not

ground a prima facie case.

       As to her request for an automatic door at her workplace, there is no dispute that

its installation took quite some time to accomplish. However, Paul did not build a factual

record to challenge Hovensa’s account of efforts they made to acquire and install the

door, nor did she proffer any evidence to reasonably infer bad faith delay. This, coupled

with the fact that Hovensa actually installed the door, made Paul’s assertion of an ADA

violation wholly inadequate. The District Court properly dismissed the accommodation

claims.


4
  Paul also claims on appeal that Hovensa failed to accommodate her disability by
refusing to change the demands placed upon Oil Movement Coordinators (OMCs), and
by failing to laterally transfer her to a different position. Additionally, Paul raises a
general claim that Hovensa failed to modify its facilities to meet ADA accessibility
requirements. She did not raise these claims before the District Court and we will not
consider them.
                                             3
         Paul next asserts Title VII, ADA, and VICRA violations based upon Hovensa’s

failure to promote her to a supervisor position.5 There are a number of allegations

associated with these claims.

         Paul emphasizes on appeal that, as to her application for promotion, Hovensa

disadvantaged her on the basis of gender and disability by refusing in prior years to give

her opportunities to “act up” as a temporary terminal dispatcher. Contrary to her

representation to this Court, Hovensa did not flatly deny Paul the opportunity to “act up.”

Paul admitted in deposition that, after she complained of being passed over to “act up,”

she accepted Hovensa’s subsequent offers to work as a temporary dispatcher. She also

asserts that Hovensa showed discriminatory intent by ignoring her years of experience as

an Oil Movement Coordinator (OMC). Yet, given that the interviewed applicants met the

minimum requirements for the position, Paul failed to ground any reasonable inference

that Hovensa’s assessment of their distinct work experiences strayed beyond the proper

bounds of business judgment.

         Paul next maintains that Hovensa interviewers arbitrarily used co-worker

animosity, that she links to her disability, to grade her “people skills” as inferior to the

applicant Hovensa promoted.6 We did find evidence suggesting an interviewer knew that


5
    Paul did not appeal the dismissal of her claim regarding a superintendent position.
6
  Paul also casts Hovensa’s evaluation of the promoted employee’s “people skills” as
evidence of discriminatory intent. She points to criminal charges filed against the other
applicant at the time of the interview, for which he was ultimately acquitted. Paul asserts
that Hovensa’s failure to account for these charges when it evaluated the employee
demonstrated a general disdain of woman among Hovensa management. However, there
is no reasonable basis to draw such an inference.
                                               4
some fellow employees disliked having to drive Paul on-site to accommodate her

mobility needs. However, even granting her every favorable inference, an interviewer’s

awareness of the attitudes of some co-workers on this single issue—linked solely by

Paul’s speculation to Hovensa’s decision to promote another employee—is far too

attenuated to credibly ground a claim of pretext.7 Similarly, Paul alleges that Hovensa

did not promote her to spare itself additional costs of new accommodations that would

have been necessary to make the work space encompassed by this job compliant with the

ADA. There is simply no evidence to raise this claim above the level of bald conjecture.

         With the dearth of evidence in this record to support an assertion of pretext, we

conclude that the District Court properly dismissed Paul’s disability-based failure to

promote claim. Moreover, given our assessment of the record on her gender-based

claims, the remaining evidence (the gender of the interviewers and the percentage of

female supervisors) was insufficient to take Paul’s Title VII and VICRA pretext claims to

trial. The District Court did not err.

         As to Paul’s ADA and Title VII claims arising from her termination, the District

Court correctly concluded that these were unrelated to her EEOC claims and that, as a

result, she failed to exhaust her administrative remedies. These causes were properly

dismissed.




7
    Hovensa was not obligated here to show the necessity of its evaluative criteria.
                                               5
       Finally, Paul failed to proffer any evidence of Hovensa’s fraud or bad faith to

support her claim of breach of good faith and fair dealing arising from her termination.

Her cause relies purely upon speculation. We conclude that this claim is meritless.

       For all of these reasons, we will affirm the order of the District Court.




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