Delaski v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

65 F. App'x 368
CourtCourt of Appeals for the Third Circuit
DecidedOctober 31, 2002
DocketNo. 01-4527
StatusPublished

This text of 65 F. App'x 368 (Delaski v. Merrill Lynch, Pierce, Fenner & Smith, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delaski v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 65 F. App'x 368 (3d Cir. 2002).

Opinion

[369]*369OPINION

PER CURIAM.

Cynthia de Laski' brought this employment discrimination lawsuit against her former employer, Merrill Lynch, Pierce, Fenner & Smith, Inc. She alleges that when Merrill Lynch terminated her employment it did so on the basis of sex in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et seq., and the Pennsylvania Human Relations Act, 43 Pa. Stat. § 951, et seq.1 The District Court granted summary judgment in favor of Merrill Lynch, holding that de Laski could not make out a prima facie case of sex discrimination and, alternatively, that she provided no evidence that Merrill Lynch’s asserted non-discriminatory reasons for the termination were pretextual or that discrimination was more likely than not a motivating cause of the termination. We agree with the District Court’s conclusion that de Laski can demonstrate neither pretext nor that discrimination was a motivating cause of her termination. We therefore affirm the summary judgment.2

BACKGROUND

De Laski worked at Merrill Lynch as a financial consultant from 1982 until July 1992. She sues for discrimination only in regard to the termination of her employment in July 1992. She nonetheless alleges that during her years as a Merrill Lynch employee the company discriminated against her on the basis of sex in the allocation of office space, the distribution of unassigned accounts, the quality of the sales staff assigned to her, and by permitting a sexist environment in the office.

The events leading to de LasM’s termination concerned the allocation of office space in Merrill Lynch’s Bala Cynwyd, Pennsylvania, office, at which de Laski worked. Merrill Lynch renovated the Bala Cynwyd office in 1992. On July 12, while the renovation was ongoing, de Laski received a copy of a floor plan that assigned private offices in the Bala Cynwyd space after the renovation. Upon discovering that she would not receive a private office, which she believed was due to gender discrimination, de Laski “blew her top.” She went to the head of the Bala Cynwyd office, Resident Vice President (“RVP”) Charles Haraburda.

Haraburda was out of the office when de Laski came looking for him, and an administrative assistant, Fran Duffy, so informed de Laski. She nonetheless demanded to see Haraburda. She yelled words to the effect of: “I don’t care if he’s with the (obscenity) Pope, I want to see him now.” Duffy made some attempt to calm de Laski, who shortly thereafter returned to her desk.

Duffy and Haraburda’s secretary reported to Haraburda what had occurred. When Haraburda returned to the office, he asked de Laski if she had made the “Pope” statement, and she admitted that she had. Haraburda then fired her.

DISCUSSION

We review de novo the District Court’s grant of summary judgment. Blair v. Scott Specialty Gases, 283 F.3d 595, 602-03 (3d Cir.2002).

The McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 [370]*370(1973), burden-shifting analysis applies to this case. Under this analysis,

a plaintiff must initially establish a minimal prima facie case — essentially, that he or she is a member of a protected class and was qualified for an employment position, but that he or she was ... fired from it “under circumstances that give rise to an inference of unlawful discrimination.”

Waldron v. SL Industries, Inc., 56 F.3d 491, 494 (3d Cir.1995) (quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253,101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).

“Once the plaintiff establishes his or her prima facie case, the burden shifts to the defendant to articulate one or more legitimate, non-discriminatory reasons for its employment decision.” Id. If the defendant does so, the plaintiff, in order to survive a motion of summary judgment,

generally must submit evidence which: 1) casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication; or 2) allows the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.

Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir.1994).

De Laski argues that the non-discriminatory reasons proffered by Merrill Lynch to explain her termination are a pretext hiding the real reason for doing so — discrimination. We discuss this issue first and conclude as a matter of law that de Laski cannot show that any of the three proffered reasons for her termination were pretextual.

De Laski also asserts that evidence of sex discrimination and harassment that she suffered while working at Merrill Lynch would allow a jury reasonably to find that discrimination was more likely than not a motivating cause of her termination. We address this argument second and also reject it.

A. Reasons for the Termination

Haraburda testified that he fired de Laski because of her “admitted mistreatment of an office subordinate, coupled with her prior history of poor interpersonal relationships with subordinates and her below average production performance.” As noted above, de Laski argues that each of these reasons is merely a pretext for discrimination.

1. Mistreatment of a subordinate

De Laski does not deny that she made the “Pope” statement to an administrative assistant. She contends instead that if she were a man Merrill Lynch would not have fired her on account of her behavior on July 12.

The District Court correctly recognized, however, that de Laski offered no' evidence that Merrill Lynch retained any male employee who acted similarly to de Laski. To the contrary, Haraburda testified that he fired two male employees for using abusive language (albeit one of these occasions involved the use of such language to a client and the factual scenario behind the other termination is not clear from the record). See In re Carnegie Ctr. Assocs., 129 F.3d 290, 297 (3d Cir.1997) (noting that an employer had never had another employee similarly-situated to the plaintiff, but nonetheless affirming summary judgment for the employer on the ground that the plaintiff could not demonstrate that the employer would have treated a non-similarly-situated employee differently).3 De [371]*371LasM cannot show that Merrill Lynch used her July 12 misconduct as a pretext to terminate her on the basis of sex.

2.

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65 F. App'x 368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delaski-v-merrill-lynch-pierce-fenner-smith-inc-ca3-2002.