NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-4741

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GARY E. SMITH, SR.,

 Appellant

v.

HOUSING AUTHORITY OF THE COUNTY OF DAUPHIN

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 1-09-cv-00765)

District Judge: Honorable John E. Jones, III

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Submitted Pursuant to Third Circuit LAR 34.1(a)

July 12, 2011

Before: RENDELL, SMITH and FISHER, Circuit Judges.

(Filed: July 26, 2011)

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OPINION OF THE COURT

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FISHER, Circuit Judge.

Gary E. Smith, Sr., appeals from the District Court’s entry of summary judgment 

disposing of his Title VII employment discrimination claims arising from his not being 
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selected for a new position with the Dauphin County Housing Authority (“DCHA”). For 

the reasons set forth below, we will affirm.

I.

We write principally for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we set forth only those facts necessary to our 

analysis.

Gary E. Smith, Sr., a black male, has been employed by the DCHA as a Project 

Manager since 1998. Throughout his employment, Smith has shown himself to be 

competent and dedicated to his work responsibilities, as reflected in several favorable 

evaluations. However, his employment record also reveals a pattern of aggression and 

conflict with tenants and coworkers, including his supervisor, Charles Gassert, Executive 

Director of DCHA.

In January 2007, Gassert contacted the Pennsylvania Civil Service Commission 

requesting to create a position for a Social Services Director, which would ultimately 

come to be known as the Senior Citizens Service Coordinator. The duties of the position 

included counseling elderly residents and assisting them in obtaining services and 

coordinating activities.

Later that January, Gwen Copeland, a white female and project manager from the 

City of Harrisburg Housing Authority, contacted Gassert to express her interest in the 

new position and met with him to discuss it. In mid-February, Smith also met with 

Gassert to discuss his interest in the new position. At such time, the position had not 
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been officially announced. After the position was posted, Smith and Copeland applied, 

and Gassert selected Copeland.

Smith filed administrative complaints with the Pennsylvania Human Relations 

Commission and the Equal Employment Opportunity Commission (“E.E.O.C.”) for 

discrimination. Smith was granted permission to sue by the E.E.O.C. and filed suit 

immediately thereafter. Smith’s original complaint contained claims for “sex” and “race” 

discrimination and “retaliation” under Title VII, 42 U.S.C. § 2000e, et seq., and for 

“retaliation” under the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. 

§§ 951-963. Smith subsequently dropped his retaliation claims under Title VII and 

PHRA.

At the close of discovery, the DCHA moved for summary judgment. Finding that 

Smith had failed to discredit the DCHA’s legitimate nondiscriminatory reason for not 

selecting Smith, the District Court granted summary judgment in favor of the DCHA. 

Smith timely appealed.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and supplemental 

jurisdiction over the state law claim pursuant to 28 U.S.C. § 1367. We have jurisdiction 

under 28 U.S.C. § 1291. We review grants of summary judgment de novo, construing all 

conflicting facts and reasonable inferences in the light most favorable to the non-moving 

party. P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir. 2006).

III.
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Title VII employment discrimination analysis involves a three-step burden-shifting 

paradigm. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The plaintiff 

carries the initial burden of establishing a prima facie case of discrimination.

1

 1 A prima facie case can be made by showing “(i) that [plaintiff] belongs to a 

racial minority; (ii) that [plaintiff] applied and was qualified for a job for which the 

employer was seeking applicants; [and] (iii) that, despite [plaintiff’s] qualifications, he 

was rejected . . . .” McDonnell, 411 U.S. at 802. Solely for the purposes of the summary 

judgment, DCHA conceded that Smith was able to make a prima facie case.

 Id. The 

burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the 

challenged employment action. Id. The burden then shifts back to the plaintiff. Id. To 

survive summary judgment, a plaintiff must show that the employer’s proffered reasons 

were merely pretexts for discrimination by pointing to sufficient evidence, “direct or 

circumstantial, from which a factfinder would reasonably either (1) disbelieve the 

employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory 

reason was more likely than not a motivating or determinative cause of the employer’s 

action.” Jones v. Sch. Dist. of Phila., 198 F.3d 403, 413 (3d Cir. 1999) (quoting Fuentes 

v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)) (the “Fuentes prongs”). To discredit the 

proffered nondiscriminatory reasons and satisfy the first Fuentes prong, “the nonmoving 

plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, 

incoherencies, or contradictions in the employer’s proffered legitimate reasons for its 

actions that a reasonable factfinder could rationally find them unworthy of credence.” Id.

(quoting Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108-09 (3d Cir. 1997)).
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Smith contends that he provided sufficient evidence to discredit DCHA’s claim 

that it was Smith’s aggressive and confrontational personality that compelled it not to 

select him for the position of SCCC. We are not persuaded. Smith relies mostly on his 

annual work evaluations from 1998 to 2007 for his current position with the DCHA. 

While it is true that these evaluations provide positive comments about his work ethic and 

dedication to his job, they do not, as Smith argues, indicate that he is objectively the most 

qualified for the position, nor do they adequately rebut the articulated reasons for his 

nonselection. Smith does not respond to the litany of documentation revealing a pattern 

of conflicts, confrontations, and aggression toward tenants and coworkers. (See App. at 

305-22.) We hold that Smith failed to discredit DCHA’s proffered reason for not 

selecting him for the position. The DCHA met its burden, and Smith failed to establish 

sufficient evidence that could lead a factfinder to reasonably disbelieve DCHA’s 

assertion that it believed Smith’s temperament made him ill-suited for a position that 

requires patience, demonstrable compassion, and social mediation skills. See Tex. Dept. 

of Cmty. Affairs v. Burdine, 450 U.S. 248, 256-57 (1981) (holding that the employer 

“need only produce admissible evidence which would allow the trier of fact rationally to 

conclude that the employment decision had not been motivated by discriminatory 

animus”).

Smith next argues that pretext can be inferred from an employer giving a 

significant advantage exclusively to the selected candidate. Smith only mentions two 

alleged advantages. He asserts that Copeland received an unfair advantage when she was 
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allowed to meet with Gassert to discuss the position before it was posted. But Smith also

met with Gassert to discuss the position before it was posted. Smith also argues that 

Gassert’s secretary assisted Copeland in completing the application paperwork for the 

position and that he did not receive similar assistance. But the assistance provided was 

minor and bears no relation to the DCHA’s decision to hire Copeland instead of Smith. 

The sole, articulated reason for Smith’s nonselection was Smith’s history of 

confrontations. Construing all conflicting facts and reasonable inferences in the light 

most favorable to Smith, we find that the grant of summary judgment was proper.

IV.

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