Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit
5-30-2008
Doe v. C A R S Protection Precedential or Non-Precedential: Precedential
Docket No. 06-3625
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Recommended Citation "Doe v. C A R S Protection" (2008). 2008 Decisions. Paper 1084. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1084
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
Nos. 06-3625, 06-4508 ___________
JANE DOE, Appellant at No. 06-3625
v.
C.A.R.S PROTECTION PLUS, INC.; FRED KOHL __________
JANE DOE
C.A.R.S PROTECTION PLUS, INC.; FRED KOHL
C.A.R.S Protection Plus, Inc., Appellant at No. 06-4508 ___________
On Appeal from the United States District Court for the Western District of Pennsylvania
(D.C. No. 01-cv-02352) District Judge: The Honorable Maurice B. Cohill, Jr. ___________
ARGUED OCTOBER 31, 2007
BEFORE: RENDELL and NYGAARD, Circuit Judges. and McCLURE,* District Judge.
(Filed: May 30, 2008) ___________
Gary M. Davis, Esq. (Argued) 428 Forbes Avenue Suite 1700 Lawyers Building Pittsburgh, PA 15219 Counsel for Appellant/Cross Appellee
Robert J. Waine, Esq. (Argued) C.A.R.S. Protection Plus, Inc. 4431 William Penn Highway Murrysville, PA 15668 Counsel for Appellee/Cross Appellant
*Honorable James F. McClure, Jr., District Judge for the United States District Court for the Middle District of Pennsylvania, sitting by designation.
2 ___________
OPINION OF THE COURT ___________
NYGAARD, Circuit Judge.
Jane Doe sued her former employer, C.A.R.S. Protection
Plus, Inc. (CARS), alleging employment discrimination based
on gender, in violation of Title VII of the Civil Rights Act, 42
U.S.C. § 2000e et seq. The District Court granted the
employer's motion for summary judgment, finding that Doe had
failed to establish a prima facie case of discrimination. We will
reverse.
I.
We exercise plenary review over the District Court's
grant of summary judgment and apply the same standard, i.e.,
whether there are any genuine issues of material fact such that
a reasonable jury could return a verdict for the plaintiff. F ED. R.
C IV. P. 56(c); Debiec v. Cabot Corp., 352 F.3d 117, 128 n. 3 (3d Cir. 2003) (citation omitted). We view the facts of this case in
the light most favorable to the nonmoving party and draw all
inferences in that party's favor. Armbruster v. Unisys Corp., 32
F.3d 768, 777 (3d Cir. 1994).
In an employment discrimination case, the burden of
persuasion on summary judgment remains unalterably with the
employer as movant. The employer must persuade us that even
if all of the inferences which could reasonably be drawn from
the evidentiary materials of record were viewed in the light most
favorable to the plaintiff, no reasonable jury could find in the
plaintiff's favor. See Sorba v. Pennsylvania Drilling Co., Inc.,
821 F.2d 200, 201-02 (3d Cir. 1987), cert. denied, 484 U.S.
1019 (1988).
A.
CARS does business in several states insuring used cars.
CARS hired Jane Doe as a graphic artist in June 1999. Doe's
Page -4- sister-in-law, Leona Dunnett, was the CARS office manager.
Fred Kohl, Vice-President and part-owner of the company, was
Doe's supervisor. In May of 2000, Doe learned that she was
pregnant. When she told Kohl she was pregnant, she asked
Kohl about making up any time missed for doctor's
appointments. Kohl told Doe they would "play it by ear."
On Monday, August 7, 2000, Doe's doctor telephoned
her at work to inform her that problems were detected in her
recent blood test and that further tests were necessary. An
amniocentesis test was scheduled for the next day. Kohl was not
in the office on August 7, 2000, so Doe told Leona Dunnett and
Alivia Babich (who was Kohl's personal secretary), that she
needed to be off work on Tuesday, August 8, 2000. Babich
notified Kohl that Doe would be absent.
The amniocentesis test was not performed on the 8th, but
a sonogram was, and additional tests were scheduled for the
Page -5- following day. Doe's husband telephoned Kohl and informed
him that there were problems with the pregnancy and that the
test would be performed on August 9th. Kohl approved the
absence and said to contact him the next day.
On Wednesday, August 9th, Doe learned that her baby
had severe deformities and her physician recommended that her
pregnancy be terminated. That afternoon, Doe's husband again
telephoned Kohl and told him that Doe would not be at work the
next day. Kohl approved the absence and asked that Doe’s
husband call him the following day.
Doe had an additional doctor's appointment on Thursday,
August 10th. Doe's husband testified that he called CARS again
on that Thursday, and first spoke to Leona Dunnett. Then, he
spoke with Kohl and told him that the pregnancy would be
terminated the following day. Doe's husband requested that she
be permitted to take one week of vacation the following week.
Page -6- According to Doe's husband's testimony, Kohl approved the
request for a one-week vacation. Her pregnancy was terminated
on Friday, August 11, 2000. Neither Doe nor her husband called
Kohl over the weekend of August 12th.
A funeral was arranged for Doe's baby on Wednesday,
August 16th. Kohl gave Leona Dunnett (the baby's aunt)
permission to take one hour off work to attend the funeral. As
she was leaving for the funeral, Leona noticed Babich packing
up Doe's personal belongings from her desk. After the funeral,
Leona told Doe what she had seen. Doe called Kohl who told
her that she had been discharged.
After Doe was discharged from her employment at
CARS, she filed a timely charge with the EEOC and was issued
a right-to-sue letter. Doe filed this lawsuit, alleging employment
discrimination based on gender, a violation of Title VII, as
amended by the Pregnancy Discrimination Act (PDA), 42
Page -7- U.S.C. § 2000e(k). Doe maintained that CARS terminated her
employment because she underwent a surgical abortion.
We note at the outset that Doe does not assert a typical
pregnancy discrimination claim. She does not claim, for
example, that she was discriminated against because she was
pregnant or that she had been fired while on maternity leave.
Instead, she argues that she was discharged because she
underwent a surgical abortion. Whether the protections
generally afforded pregnant women under the PDA also extend
to women who have elected to terminate their pregnancies is a
question of first impression in this Circuit.
II.
The PDA makes it an “unlawful employment practice for
an employer to discriminate against any of his employees
because he has opposed any practice made an unlawful
Page -8- employment practice by this subchapter.” 42 U.S.C. §
2000e-3(a); see also Curay-Cramer v. Ursuline Acad. of
Wilmington, Delaware, 450 F.3d 130 (3d Cir. 2006). In Curay-
Cramer, the Appellant argued that Title VII's opposition clause
protects any employee who has had an abortion, who
contemplates having an abortion, or who supports the rights of
women who do so. Id. at 134. Although we did not directly
address the question in that case, we pointed to a decision of the
Court of Appeals for the Sixth Circuit with approval:
We note that the Sixth Circuit Court of Appeals has held that “an employer may not discriminate against a woman employee because ‘she has exercised her right to have an abortion.’ ” Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1214 (6th Cir.1996) (quoting H.R. REP. NO. 95-1786 (1978) (Conf.Rep.), reprinted in 1978 U.S.C.C.A.N. 4749, 4765-66). Extending that principle, the Sixth Circuit further held that an employer “cannot take adverse employment action against a female employee for merely thinking about what she has a right to do.” Id. Likewise, the Equal Employment Opportunity
Page -9- Commission (EEOC) has taken the position that it is an unlawful employment practice to fire a woman “because she is pregnant or has had an abortion.” 29 C.F.R. pt. 1604, App. (1986).
Id. at 134 n.2.
The PDA states that
the terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.
42 U.S.C. § 200e(k). The EEOC guidelines interpreting this
section, to which we give a high degree of deference under
Griggs v. Duke Power, 401 U.S. 424, 433-34 (1971), expressly
state that an abortion is covered by Title VII:
The basic principle of the [PDA] is that women affected by pregnancy and related conditions must be treated the same as other applicants and
Page -10- employees on the basis of their ability or inability to work. A woman is therefore protected against such practices as being fired ... merely because she is pregnant or has had an abortion.
Appendix 29 C.F.R. pt. 1604 App. (1986). Similarly, the
legislative history of section 2000e(k) provides the following
guidance:
Because [the PDA] applies to all situations in which women are “affected by pregnancy, childbirth, and related medical conditions,” its basic language covers women who chose to terminate their pregnancies. Thus, no employer may, for example, fire or refuse to hire a woman simply because she has exercised her right to have an abortion.
H.R. Conf. Rep. No. 95-1786 at 4 (1978) as reprinted in 95th
Cong., 2d Sess. 4, 1978 U.S.C.C.A.N. 4749, 4766. Clearly, the
plain language of the statute, together with the legislative history
and the EEOC guidelines, support a conclusion that an employer
may not discriminate against a woman employee because she
Page -11- has exercised her right to have an abortion. We now hold that
the term “related medical conditions” includes an abortion.
B.
We turn now to Doe’s pregnancy discrimination claims.
As earlier noted, Title VII prohibits employment discrimination
based on an individual’s sex. 42 U.S.C. § 2000e-2(a). The
prohibition is breached “wherever an employee’s pregnancy [or
related medical condition] is a motivating factor for the
employer’s adverse employment decision.” In re: Carnegie Ctr.
Assoc., 129 F.3d 290, 294 (3d Cir. 1997). The PDA does not,
however, require preferential treatment for pregnant employees.
Instead, it mandates that employers treat pregnant employees the
same as non-pregnant employees who are similarly situated with
respect to their ability to work. Id. at 297; see also Tysinger v.
Police Dept. City of Zanesville, 463 F.3d 569, 575 (6th Cir.
2006).
Page -12- Disparate treatment discrimination is proven by either
using direct evidence of intent to discriminate or using indirect
evidence from which a court could infer intent to discriminate.
Doe supports her claim with evidence from which
discrimination may be inferred. We therefore use the familiar
McDonnell Douglas burden-shifting framework to analyze her
Title VII pregnancy discrimination claims. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). Under this analysis,
the employee must first establish a prima facie case. If the
employee is able to present such a case, then the burden shifts to
the employer to provide a legitimate, nondiscriminatory reason
for its adverse employment decision. If the employer is able to
do so, the burden shifts back to the employee, who, to defeat a
motion for summary judgment, must show that the employer's
articulated reason was a pretext for intentional discrimination.
Page -13- The District Court recited a correct précis of a prima
facie case of gender discrimination. It did not, however,
acknowledge the “uniqueness” of pregnancy discrimination
cases and instead, incorrectly treated Doe’s claims as if they
were an ordinary case of gender discrimination. A prima facie
case cannot be established on a one-size-fits-all basis. Jones v.
School Dist. of Philadelphia, 198 F.3d 403, 411 (3d Cir. 1999).
Indeed, we have often remarked that “‘the nature of the
required showing’ to establish a prima facie case of disparate
treatment by indirect evidence ‘depends on the circumstances of
the case.’ ” Torre v. Casio, Inc., 42 F.3d 825, 830 (3d Cir.1994)
(citing Massarsky v. General Motors Corp., 706 F.2d 111, 118
n. 13 (3d Cir.), cert. denied, 464 U.S. 937 (1983)). Compare
Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 658 (6th Cir.
2000) (setting forth elements of a prima facie case of pregnancy
discrimination) with Peletier v. United States, 388 F.3d 984, 987
Page -14- (6th Cir. 2004) (setting out elements of a prima facie case of
gender discrimination).
We have cautioned that “the elements of that prima facie
case must not be applied woodenly, but must rather be tailored
flexibly to fit the circumstances of each type of illegal
discrimination.” Geraci v. Moody-Tottrup, Int'l, Inc., 82 F.3d
578, 581 (3d Cir. 1996). Moreover, the Supreme Court has
cautioned that the prima facie requirement for making a Title
VII claim “is not onerous” and poses “a burden easily met.”
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981); see also Scheidemantle v. Slippery Rock Univ., State
Sys. of Higher Educ., 470 F.3d 535, 539 (3d Cir. 2006). The
prima facie phase of discrimination litigation “merely serves to
raise a rebuttable presumption of discrimination by ‘eliminating
the most common nondiscriminatory reasons for the employers
treatment’ of a plaintiff.” Burdine, 450 U.S. at 253-54.
Page -15- 1.
We have previously indicated that establishing a prima
facie case of pregnancy discrimination differs from establishing
a prima facie case of gender discrimination. In Geraci, we
wrote that
were Geraci alleging that [her employer] 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.
82 F.3d at 580. We modified the first element of a prima facie
case of pregnancy discrimination to require that an employer
have actual knowledge of an employees’ pregnancy, reasoning
that “pregnancy, of course, is different in that its obviousness
varies, both temporally and as between different affected
individuals.” Id. at 581. Therefore, in a case alleging pregnancy
discrimination, to raise an inference of any unlawful discharge
Page -16- a plaintiff must adduce evidence that she was pregnant, and, that
the employer knew it. Id. at 580-81; accord Prebilich-Holland
v. Gaylord Entm’t. Co., 297 F.3d 438, 444 (6th Cir. 2002).
Because we did not need to address the remaining elements of
the prima facie case of pregnancy discrimination in Geraci, we
must do so here.
The next two elements of the prima facie case remain the
same as those of gender discrimination. The plaintiff must be
qualified for her job and she must have suffered an adverse
employment decision. The fourth element requires that a
plaintiff show some nexus between her pregnancy and the
adverse employment action. The nexus between a plaintiff’s
pregnancy and an adverse employment action raises an inference
of discrimination.
2.
Page -17- Neither party disputes that Doe has met her burden on the
first three elements of a prima facie pregnancy discrimination
case: 1) she is or was pregnant and that her employer knew she
was pregnant; 2) she was qualified for her job; and, 3) she
suffered an adverse employment decision. It is the fourth
element that is in dispute, namely whether there is some nexus
between her pregnancy and her employment termination that
would permit a fact-finder to infer unlawful discrimination.
The evidence most often used to establish this nexus is
that of disparate treatment, whereby a plaintiff shows that she
was treated less favorably than similarly situated employees who
are not in plaintiff's protected class. See Iadimarco v. Runyon,
190 F.3d 151, 162 (3d Cir. 1999); see also In re Carnegie
Center Associates, 129 F.3d at 297. Although we have held that
“the PDA does not require that employers treat pregnant
employees better than other temporarily disabled employees” In
Page -18- re Carnegie Center, 129 F.3d at 295, the PDA does require that
employers treat pregnant employees no worse. Comparing Doe
to other non-pregnant workers who were temporarily disabled,
we conclude that Doe has provided sufficient evidence to satisfy
the fourth element of the prima facie case and has thus raised an
inference of discrimination sufficient to defeat summary
judgment.
3.
Our factual analysis starts with CARS’ somewhat less
than compassionate leave policies. A memorandum authored by
Kohl reveals that CARS employees were given no personal or
sick leave. After one year on the job, employees were given five
days’ paid vacation. After five years’ employment, they were
given ten days. Any time taken off during a work day was to be
deducted from the employee’s vacation time or be unpaid.
Page -19- Kohl testified that when an employee is so ill that he or
she cannot work, CARS required the employee or spouse to call
him or another designated supervisor on a daily basis.
Employees could also arrange in advance if they knew that their
illness or condition would entail missing more than one day’s
work. Kohl also acknowledged that there are circumstances
where it is not necessary to call each day, particularly in
situations where it is clear from the nature of the illness or injury
that the employee cannot work. This statement contradicted
Kohl’s statements to the EEOC wherein he testified to the
EEOC investigator that employees “needed to call off every
day.”
The record shows that different CARS employees were
treated differently. Mike King, for example, suffered a heart
attack while he was employed by CARS and testified that,
although he or his wife did call to tell Kohl he was still in the
Page -20- hospital, they did not do so daily, and that he was paid during his
absence. King missed two and a half days of work due to his
heart attack. Babich also testified that King's wife called in once
to tell the office how he was doing, but that no one called every
day.
Another employee, Bruce Boynton, left work in the
middle of the day and admitted himself into a psychiatric
hospital. Kohl called Boynton while he was in the hospital and
told him to report back to work or be fired. On another
occasion, Boynton went to the emergency room after work. He
called Kohl the next morning and called at least once more
during the three days he missed for a hernia and back problem.
The testimony of Alivia Babich, Kohl’s secretary,
confirms this disparate treatment. Babich testified that for every
employee, CARS had a “separate set of rules” and that there was
no uniformly enforced rule concerning the use of vacation or
Page -21- sick time. She specifically indicated that there was no rule at
CARS which required an employee who was sick to call the
company every day to report that they would miss work due to
illness. Babich also testified that when CARS employee
Michael King suffered a heart attack, neither King nor his wife
called-in every day. Further, Babich testified that at least two
other employees who missed work due to illness were not
required to telephone the company every day. See Appendix at
215-216. This testimony indicates that although other
employees were not expected to call the office every day, Doe’s
employment was terminated for precisely this reason. This
testimony alone satisfies Doe’s burden of establishing that other
employees who were similarly situated were treated differently
than her. But, there is more.
The District Court dismissed this discrepancy because
none of these employees reported to Kohl — they had other
Page -22- supervisors. Whether these other employees had other
supervisors is irrelevant – based on Kohl’s own testimony in
which he indicates that he and he alone could give employees
permission to be off sick. In his deposition, he testified:
Q: . . . was there a policy [regarding sick leave and calling-in]? A: Yes, you had to call in to make somebody aware that you weren’t coming in or when you planned on coming back. Q: Who did you need to call? A: Myself. Q: Was it acceptable to call anybody else? A: If I wasn’t there, Mr. Tedesco would have been. Q: Would it have been acceptable to call Alivia Babich? A: No. Q: Would it have been acceptable to call Leona Dunnett? A: No. Q: Did you have to call in yourself? If you, if you were unable or sick, could you have a spouse call? A: Absolutely.
Page -23- Appendix at 103-104. According to this testimony, all
employees had to receive permission from Kohl to be off sick
and that the discretion was his alone to grant or deny permission
to miss work when an employee was sick. It is irrelevant that
the other employees in question (King, etc.) had other
supervisors. Babich did report directly to Kohl and did not call
every day or give a precise return date when she was out. The
District Court found that Doe could not point to any evidence
from which a reasonable jury could find similarly situated
CARS employees were treated differently regarding calling off
work because they were sick. That finding is not supported.
Babich’s testimony as well as Kohl’s own testimony establishes
that the treatment given other employees differed from that
given to Doe. This raises an inference of discrimination
sufficient to satisfy her minimal burden of establishing a prima
facie case.
Page -24- The District Court also indicated that these employees
had all made arrangements before missing work. There is
evidence, however, that Doe did exactly that. Her husband
testified that he called Kohl to request a week of vacation for his
wife to recover from her surgical procedure and that Kohl
agreed to the request. Doe’s husband testified that all of the
phone calls to Kohl were made from his father’s house. Doe’s
husband further testified that he talked to Kohl on Thursday,
August 10th and got Kohl’s permission for his wife to take a
vacation the following week. The District Court discounted this
testimony because telephone records do not show a phone call
from Doe’s father-in-law’s number to CARS telephone number.
Doe’s husband’s testimony on this point, however, at least raises
an issue of material fact. Doe testified that the call from her
father-in-law’s house may have originated from a cell phone as
“there was a lot going on at that time.” Appendix at 51-52.
Page -25- Additionally, Doe points to testimony of Leona Dunnett
to re-enforce the point. Leona Dunnett testified that on August
10th, Kohl asked her about coverage of the reception desk for
the following week:
Q: What was the substance of the conversation [with Kohl]? A: About coverage for the reception desk for the following week. He asked me if I had everything covered. Q: Did [Doe] regularly cover the reception desk? A: Yes. Q: All day long? A: No. Just for the lunch hour. Q: What was said? A: There was specific personnel that he did not want answering the phones, so I needed to rearrange lunch schedules so that it was covered without having those persons answering the phones for the following week. Q: Did [Kohl] say that [Doe] would not be in work for the next week? A: He said we needed to arrange coverage for the next week.
Page -26- Appendix at 179. Doe points to this as confirmation that the
August 10th phone call did take place – Kohl wanted to make
sure that the telephones were covered because he knew Doe
would be off the following week.
The District Court further found that Doe had not met
this fourth element of the prima facie case because the record
shows no discriminatory animus toward her for having an
abortion. Doe counters with the following testimony of Leona
Dunnett:
Q: What was the situation surrounding your leaving CARS? A: On a daily basis, I go into Mr. Kohl’s office to check the warranties, and I was there as he and Alivia were working on whatever, I was checking through the warranties and Alivia said, “I don’t know what all this secrecy behind [the plaintiff] losing her baby was.” And Mr. Kohl said “ she didn’t w a n t to ta ke responsibility.” Which upset me.
Page -27- The District Court found these to be “stray remarks” and did not
give them much weight. True enough, we held in Ezold that
stray remarks by decision-makers, which were unrelated to the
decision-making process, are rarely to be given weight,
particularly if they are made temporally remote from the date of
the decision. See Ezold v. Wolf, Block, Schorr & Solis-Cohen,
983 F.2d 509, 545 (3d Cir. 1992). However, we later explained
that such remarks could provide background evidence that may
be critical to a jury’s determination of whether the decision-
maker was more likely than not acting out of a discriminatory
motive. Antol v. Perry, 82 F.3d 1291, 1302 (3d Cir. 2006). As
the Court of Appeals for the Eighth Circuit has opined,
“although ... stray remarks, standing alone, may not give rise to
an inference of discrimination, such remarks are not irrelevant.”
Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 922 (8th Cir.
2000).
Page -28- Here, we focus on Kohl’s remarks in which he indicated
that Doe “did not want to take responsibility.” A finder of fact
could infer that Kohl was referring to Doe’s abortion because
before this remark, Babich was talking about her disagreement
with the “secrecy” surrounding Doe’s baby. It is unclear,
however, what “responsibility” Kohl felt Doe should take. Kohl
may have been referring to Doe’s failure to take responsibility
for her selection of an abortion procedure. Kohl may have been
referring to Doe’s failure to take responsibility for her own job
termination. Kohl’s commentary could also have been
insinuating that Doe did something to cause the loss of her own
baby. Or, Kohl could have been castigating Doe for not
acknowledging the abortion because of an anti-abortion
environment at CARS or Kohl’s own personal beliefs about
abortion. What is clear is that this particular remark may raise
a reasonable inference that the abortion was a factor in
Page -29- terminating Doe’s employment. Such comments are “surely the
kind of fact which could cause a reasonable trier of fact to raise
an eyebrow, thus providing additional threads of evidence that
are relevant to the jury.” Bevan v. Honeywell, Inc., 118 F.3d
603, 610 (8th Cir. 1997) (citations and quotations omitted)1
Finally, Doe argues that her discharge only three working
days after having an abortion raises an inference of
discrimination because the temporal proximity between her
abortion and the adverse employment action is “unusually
suggestive.” We have held temporal proximity sufficient to
create an inference of causality to defeat summary judgment.
1. Although Bevan was on appeal following a jury verdict in favor of the plaintiff and the district court's denial of the defendant's motion for judgment as a matter of law, the Supreme Court in Reeves stated that the standard applied in reviewing a judgment as a matter of law is identical to that applied in reviewing a grant of summary judgment. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000).
Page -30- LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n., 503 F.3d 217,
232-233 (3d Cir. 2007). In assessing causation, we are mindful
of the procedural posture of the case. See id. at 279 n. 5 (“There
is ... a difference between a plaintiff relying upon temporal
proximity to satisfy her prima facie case for the purpose of
summary judgment, and to reverse a verdict.”) (internal citation
omitted).
Here, Doe was fired on the day her baby was buried, just
three working days after she notified Kohl that she would have
to undergo an abortion. Because the District Court found Doe’s
discharge to coincide with her failure to “make further phone
calls to Kohl as he had asked her to do,” it reasoned that the
timing was not unusually suggestive of discrimination. The
temporal proximity, however, is sufficient here to meet Doe’s
minimal prima facie case burden as to the causal connection
element. See e.g. Fasold v. Justice, 409 F.3d 178, 189-90 (3d
Page -31- Cir. 2005) (discussing a period less than one month and noting
that “a short period of time” may provide the evidentiary basis
of an inference of retaliation)).
Summary judgment is to be used sparingly in
employment discrimination cases, especially where, as here, we
are viewing the case at first glance. Mindful that the plaintiff's
burden at this first stage is not particularly onerous, we conclude
that Doe has established a prima facie case.
C. Pretext
The District Court held that even if Doe had established
a prima facie case, she failed to show that the nondiscriminatory
reasons for her employment discharge were pretextual. The
record refutes the holding. Once the plaintiff establishes a
prima facie case, the burden of production shifts to the employer
to articulate some legitimate, nondiscriminatory reason for the
adverse employment action. See McDonnell Douglas, 411 U.S.
Page -32- at 802; see also Goosby v. Johnson & Johnson Med., Inc., 228
F.3d 313, 319 (3d Cir. 2000). When the plaintiff meets this
burden, the court's “factual inquiry then proceeds to a new level
of specificity.” Burdine, 450 U.S. at 255. The presumption of
discrimination established by the prima facie showing “simply
drops out of the picture.” St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 511 (1993).
If the defendant meets this burden, the plaintiff must then
show that the legitimate reasons offered by the defendant are
merely a pretext for discrimination. See Jones, 198 F.3d at 410.
In order to show pretext, a plaintiff must submit evidence which
(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.
Page -33- See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994);
Chauhan v. M. Alfieri Co., Inc., 897 F.2d 123, 128 (3d Cir.
1990). Put another way, to avoid summary judgment, the
plaintiff's evidence rebutting the employer's proffered legitimate
reasons must allow a fact-finder reasonably to infer that each of
the employer's proffered non-discriminatory reasons was either
a post hoc fabrication or otherwise did not actually motivate the
employment action (that is, that the proffered reason is a
pretext). See Anderson, 13 F.3d at 1124; Bodenheimer v. PPG
Indus., Inc., 5 F.3d 955, 958 (5th Cir.1993).
Lastly, it is important to remember that the prima facie
case and pretext inquiries often overlap. As our jurisprudence
recognizes, evidence supporting the prima facie case is often
helpful in the pretext stage, and nothing about the McDonnell
Douglas formula requires us to ration the evidence between one
stage or the other. Farrell, 206 F.3d at 286; see also Iadimarco,
Page -34- 190 F.3d at 166 (explicitly referring to the evidence of the prima
facie case in finding evidence supporting pretext); Jalil, 873
F.2d at 709 n. 6 (“Although this fact is important in establishing
plaintiff’s prima facie case, there is nothing preventing it from
also being used to rebut the defendant's proffered explanation.”).
1.
CARS maintains that it fired Doe because she abandoned
her job (the week she thought she was ‘on vacation’ following
the abortion and the funeral). Specifically, CARS asserts that
Doe was fired because neither she nor her husband called to
request Friday, August 11th or the week of August 14th off from
work. Unexcused absence from work is a legitimate,
nondiscriminatory reason for terminating employment.
Before the District Court and again before us on appeal,
Kohl asserts that he never received a telephone call from Doe’s
husband informing him that Doe would be off work on Friday
Page -35- the 11th and would need vacation time for the week of the 14th.
As we noted earlier, that fact is subject to dispute from
contradictory evidence. Doe pointed to her husband’s testimony
to the contrary. The District Court discounted Doe’s husband’s
testimony, finding it “belied by the telephone records of calls
from [Doe’s husband’s] father’s telephone number.” Dist. Ct.
Op. at 12. Here, the District Court inappropriately narrowed
Doe’s husband’s testimony, who indicated that he may have
called from a borrowed cell phone. Appendix at 86-87. This
testimony is also backed-up by Doe’s own testimony that the
call “had to be from a cell phone” and that “ there was a lot
going on at that time.” Appendix at 51-52.
Additionally, the testimony of Leona Dunnett could be
viewed by a fact-finder as substantiating Doe’s claim that the
call was made and that she received a week of vacation from
Kohl. Leona Dunnett testified that Doe’s husband called her on
Page -36- Friday, August 11th and asked what he would need to do for
Doe to use vacation time for the week of August 14th. Dunnett
also testified that she explained to Doe’s husband that he would
need to request it from Kohl, and that she then transferred the
call to Kohl. She further testified that, after that call, Kohl
asked her to make sure she had the receptionist station covered
by other employees during the lunch hour for the week in
question (a task for which Doe was usually responsible). Kohl’s
awareness of a receptionist-coverage issue permits an inference
that he knew Doe would be on vacation that week.
The District Court held that Doe produced no evidence
from which a reasonable jury could disbelieve CARS’ asserted
reason for firing her and concluded, instead, that she was
discharged for discriminatory reasons. The record refutes this
conclusion. This testimony creates a genuine issue of material
Page -37- fact as to whether CARS’ proffered reasons for terminating
Doe’s employment were a pretext.
Finally, the District Court did not believe that Doe had
pointed to any evidence which cast doubt on whether Kohl had
a good faith belief that Doe had abandoned her job. The
conversation between Kohl and Babich, in which Kohl remarked
that Doe had not taken responsibility for her abortion indicates
that Kohl may have had other reasons for terminating Doe’s
employment than her “abandonment” of her job. These are
questions for a jury – not ones that should be resolved on
summary judgment. Doe produced testimony which creates
genuine issues of material fact, the resolution of which may lead
a jury to determine that CARS’ asserted reasons for discharging
her are pretext.
Page -38- III.
CARS has filed a cross appeal alleging that the District
Court improperly sealed the case. “[O]rders releasing sealed
material and denying a motion to unseal are collateral orders
within the meaning of 28 U.S.C. § 1291,” Republic of
Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 658 n.
4 (3d Cir. 1991), and we review the grant or modification of a
confidentiality order for an abuse of discretion. Pansy v.
Borough of Stroudsburg, 23 F.3d 772, 783 (3d Cir. 1994).
There was no abuse of discretion. The record fully supports the
District Court's order.2
2. CARS also challenges Does’ use of a pseudonym. We acknowledge that the use of pseudonyms to conceal a plaintiff's identity has no explicit sanction in the federal rules. Nonetheless, the Supreme Court has given the practice implicit recognition in two abortion cases, Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973). Although we have yet to address the issue, the decision whether to allow a (continued...)
Page -39- IV. Conclusion
Doe has established a prima facie case. Furthermore,
she has pointed to sufficient evidence from which a fact-finder
could infer that the CARS' non-discriminatory reason for firing
Doe was a pretext. The District Court’s order will be reversed
and the cause remanded for further proceedings not inconsistent
with this opinion.
2. (...continued) plaintiff to proceed anonymously rests within the sound discretion of the court. See Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992); Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir.), cert. denied, 444 U.S. 856 (1979). After a careful review of all the circumstances of this case (including the District Court’s thorough hearing), we cannot say the trial court abused its discretion in granting Doe's motion to proceed anonymously.