NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 1 8

- 1345

_____________ KYMBERLEY COLE ROSENCRANS ,

Appellant

v. QUIXOTE ENTERPRISES , INC. , d/b/a Adult World ; CHARLES ERIC MORROW

_______________ On Appeal from t he United States District Court for the Middle District of Pennsylvania (D.C. No. 3

- 17

- cv - 00 0 55 ) District Judge: Honorable Richard P. Conaboy

_______________ Submitted Under Third Circuit LAR 34.1(a)

November 2 , 2018 Before: CHAGARES, JORDAN, and VANASKIE , Circuit Judges.

(Filed : November 27, 2018 )

_______________ OPINION *

_______________ JORDAN, Circuit Judge

. Kymberley Cole Rosencrans appeals the grant of summary judgment for Quixote Enterprises, Inc. (“Quixote”) and Charles Eric Morrow (collectiv ely, the “Defendants”)

* This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.2

on her employment discrimination claims

. For the reasons that follow, w e will vacate and remand.
I. B ACKGROUND In 2015 , Rosencrans was hired to be a district manager at Quixote , a n adult entertainment business

. Morrow is the part

- own er and , as he has said, the “boss” of Quixote who “make[s] the major decisions that need to be made” at the company. (App. at 164.) Prior to her employment with Quixote, Rosencrans worked as Morrow’s
housecleaner. 1 During that time, she and Morrow deve loped a friendship , which , in May 2015, le d to the ir having sex . After th at one - time encounter, the two remained on good
terms

. In the fall of 2015 , Rosencrans and Morrow discussed having R osencrans begin work at Quixote. She asserts that Morrow compl ained to her about problems with one of his district managers and that she told him “she’d be willing to do the job

. ” (App. at 130.) The Defendants co unter that R osencrans pestered Morrow to hire her and he finally relented and allowed her to apply , desp ite having s erious reservations about her ability to adequately fill the position

. He was particularly concerned that she would have trouble commuting for an hour and a half and being available on an emergency basis , because Rosencrans was a single mother with four children

.

1 Rosencrans began cleaning Morrow’s house in 2008. At some point between 2008 and 2015, Rosencrans stopped doing that. The parties dispu te when that occurred and why. The details of that dispute, however, are not relevant to the issues on appeal. It is uncontested that, by April 2015, Rosencrans had resumed cleaning Morrow’s house.3

Nonethe less, Morrow decided to hire Rosencrans as a district manager. After he informed Quixote’s office manager, Sharon Greco, and Quixote’s C ontroller , Larry Schemery, of that decision , Greco and Schemery met with Rosencrans to c omplete required paperwork and review her job duties. Rosencrans received a copy of the Quixote employee handbook , which contains an at

- will employment provision and a provision specifying that an employee’s first three months at the company are an “ev alu ation period.” (App. at 1 06

- 0 7 .) On November 9, 2015 , Rosencrans began her employment with Quixote. The parties dis agree about much of what happened over the next eleven days

– the entirety of Rosencrans’ s tenure at the company. For example, the Defen dants assert that Rosencrans failed to show up for work on Veterans’ Day, played on her personal computer during work hours, and refused to attend training in Syracuse , New York . Rosencrans says all of th at is false

. What is undisputed, however, is t hat on Sunday, November 15, Rosencrans flew to Las Vegas and got married. Four days later, o n T hursday , November 19 , she sent Morrow a text with that news

. The next day, she was fired

. B efore she learned of her firing, s he had sent Morrow another te xt, this one asking whether she would have a company car in time for her training in Syracuse. Morrow responded, “C hange of plans

... [T] alk to Larry [Schemery] in the office.” ( App. at 228

. )
Rosencrans c alled Schemery , who told her she “wasn’t working ou t and

... t hey were giving the other girl a chance, and they would call [her] if that didn’t work out.” ( App. at
1 52

. ) After the call , Rosencrans and Mo rrow exchanged a series of texts, in the course of4

which Morrow told Rosen crans , “Ur just not working ou t and I gave the other girl another chance

... U have a [manager] job at the bar and a new husband

... .” ( App. at 228

. ) Despite Morrow’s text, which appears to take responsibility for the decision to give another woman the district manager position , the De fendants maintain that it was Schemery , not Morrow , w ho decided to fire Rosencrans . According to the Defendants , Morrow had asked Schemery and Greco to “[l]eave [him] out of ” all decisions involving Rosencrans’ s employment . (App. at 196 .) It was thus Sc hemery who terminate d
Rosencrans , and, in the Defendants’ telling, he did so because of her lateness, personal computer use, and “general poor attitude.” (App. at 53.) Greco testified that while Schemery and Greco did, in fact, “run [ the firing decision ] by Morrow,” they were not required to do so. (App. at 89.) And, w hen they asked for permission to discharge her,
Morrow told them, “[D]o what you have to do.” (App. at 89.) In January 2017, Ros encrans filed suit against Quixote and Morrow in the Uni ted
States District Court for the Middle District of Pennsylvania , alleging against Quixote violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) , for quid pro quo and disparate treatment sex discrimination , and a gainst Morrow a vi olation of the Pennsylvania Human Relations Act , 43 P.S. § 951 et seq. (“PHRA”) , for aiding and abetting sex discrimination

. The Defendants moved to dismiss the complaint in its entirety. The Dis trict Court granted that motion as to th e quid pro quo sex discrimination claim against Quixote but denied it as to the other claims. The Defendants eventually moved for summary5

judgment on Rosencrans’ s remaining claims , and t he Court granted that motion, concluding that Rosencrans had failed t o establish a prima facie case of discrimination. Rosencrans timely appeal ed

. II. D ISCUSSION 2
Rosencrans asserts t hat the District Court erred in granting summary jud gment on her disparate treatment and aiding and abetting sex discrimination claims

. W e ag ree , because there is a genuine issue of material fact as to whether discriminatory animus motivated her firing

. T he familiar McDonnell Douglas burden

- shifting analysis applies to Rosencrans’ s discrimination claims under Title VII and the PHRA

. 3 McDo nne ll Douglas Corp. v.
Green , 411 U.S. 792 (1973)

. Under that framework, Rosencrans bears the initial burden of establish ing a prima facie case of discrimination

. I d. at 802

- 03. If she c an do so, the burden of production shifts to the Defendants “to articu late some legitimate, nondiscrim inatory reason ” for her firing. Id. at 802. I f the Defendants carry th at burden,
Rosencrans must then come forward with evidence that the legitimate reason offered by

2 The Distric t Court had jurisdiction under 2 8 U.S.C. § § 1331 and 1367 . We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’ s grant of summary judgment de novo and “view inferences to be drawn from the underlying facts in the light most favorable to the nonmoving party. ” Montanez v. Thompson , 603 F.3d 243, 248 (3d Cir. 2010) (citation omitted)

. “Summary judgment is appropriate where the [c]ourt is satisfied ‘that there is no genuine [dispute] as to any material fact and that the moving party is entitled to a judgment a s a matter of law.’” Celotex Corp. v. Catrett , 477 U.S. 317, 330 (1986) (citation omitted). A genuine dispute exists only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. , 4 77 U.S. 242, 248 (1986).

3 Insofar as c laims of the kind here are concerned, t he PHRA is interpreted to be coextensive with Title VII. See Kelly v. Drexel Univ. , 94 F.3d 102, 105 (3d Cir. 1996).6

them was merely a pretext for discrimination. Tex

. Dep ’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 253 (1981). To establish a prima facie case of gender discrimination under a disparate treatment theory , Rosencra n s must show that (1) she is a member of a protected class; (2) she was qualified for the positi on; (3) she suffered an adverse employment action; and (4) the action oc curred under circumstances giving rise to an inference of intentional discrimination. See Makky v. Chertoff , 541 F.3d 205, 214 (3d Cir. 2008). Her prima facie burden is not “ onerous . ” Burdine , 450 U.S. at 253. “[W] e have repeatedly emphasized that the requirements of the prima facie case are flexible , and in particular that ‘ the fourth element must be relaxed in certain circumstances ....’ ” Pivirotto v. Innovative Sys., Inc. , 191 F.3d 344, 357 (3d Cir. 1999) (quoting Torre v. Casio, Inc. , 42 F.3d 825, 831 (3d Cir. 1994)). The first three elements are not in dispute. Rosencrans, a female, is a member of a protected class; there is no contention that she was not qualified for her positi on; and she was fired from Quixote. The District Court granted summary judgment based on the fourth element , concluding that Rosencrans had failed to make a prima facie show ing that her termination occurred under circumstances giving rise to an inference of sex discrimination. Rosen crans rightly contends th at that was error . A Title VII claim premised upon marital status raises “ w hat has come to be known as a ‘sex

- plus’ problem , ” which “ arises whenever an employer adds a criterion or factor for one sex (e.g., marital status), which is not added for the other sex.” Bryant v. Int’l Sch. Servs., Inc. , 675 F.2d 562, 573 & n.18 (3d Cir. 1982) (citation omitted) . In a “sex

-7

plus” case like this , the plaintiff must show that her employer treated married women “in a manner which ‘but for [that person’s] sex would

. . . be [] different.’” Id. at 575 (quoting City of L .A. Dep’t of Water v. Manhart , 435 U.S. 702, 711 (1978) )

. A plaintiff meets th at burden by putting forth evidence showing she was treated less fav orably than similarly situated m en or through evidence of other circumstances, such as impermissible stereotyping, that give s r ise to an i nference of gender discrimination. Back v. Hastings on Hudson Union Free Sch. Dist. , 365 F.3d 107, 121 (2d Cir. 2004)

. Here, Rosencrans has put forth sufficient evidence for a prima facie showing that
h er discharge occurred under circumstances giving rise to an inference of impermissible discrimination

. For example, i n response to Rosencrans’ s text messages question ing her firing, Morrow t exted back , “U have

.. . a new husband.” (App. at 228

. ) When asked at his deposition wh y he included that fact in his response , Morrow testified , “ Because she just got married

.... She ’ s not my problem .... It ’s not my job to support th at girl. It is not my job

... . Let him take care of her.” ( App. at 181

. ) While t he Distr ict Court credited this as evidence of impermissible stereotyping on Morrow’s part, i t nonetheless concluded that Rosencrans ’ s claim failed because she could not show tha t Morrow was the decisionmaker behind her firing or that Schemery and Greco shared Morrow’s views.
Th at con clusion, however, overlooks evidence from Rosencrans that Morrow may well have been the decisionmaker

. Notably, after Rosencrans was fired , Morrow described the decision in personal terms , explaining, “ I gave the other girl another chance...

. ” (App. at 228

. ) W h ile Morrow testified that he does not “hire and fire people , ” the evidence here can be viewed otherwise. (App. at 164.) M orrow was8

apparent ly the one who hired her, 4 and his later text message can be read as taking responsibility for replacing her

. In addition, regardless of whether Schemery and Greco were required to get Morrow’s permission to fire Rosencrans, it is not disputed that they d id seek his permission. And, of significance, there i s a very close temporal proximity

– a single day

– between when Rosencrans told Morrow she had gotten married and her termination

. See Kachmar v. SunG ard Data Sys., Inc. , 109 F.3d 173, 177 (3d Cir. 199 7) (“Cases in which the required causal link has been at issue have often focused on the temporal proximity between the employee’s protected activity and the adverse employment action, because this is an obvious method by which a plaintiff can proffer circ umstantial evidence sufficient to raise the inference that her protected activity was the likely reason for the adverse action.” ( quotation marks and citation omitted) )

. T aking all of the evidence in the light most favorable to Rosencrans, there is suffic ient evidence connecting her firing to impermissible discrimination to establish the requisite prima facie case under both Title VII and the PHRA

. 5

4 As t he Defendants describe Rosencrans’ s hiring , “Morrow r eluctantly agreed to let Rosencrans apply and see if it would work out...” (App. at 50.) But Quixote’s employees testified that Morrow was the one who hired her and “sent her over” to them to discuss her job duties and pay , having already offered Rosencran s the position

. Rosencrans says Morrow offered her the district manager position

. Based on th at record, it can be fairly understood that Morrow hired Rosencrans.

5 The Defendants argue that Rosencrans has failed to put forward sufficient comparator evid ence to make out a prima facie case

. She co unters that , in a response to a request for admission, the Defendants’ “admission” that “Defendants Quixote and Morrow never fired anyone, male or female, because they were married or became married durin g their employment with Quixote ” is sufficient to show that she was treated less favorably than similarly situated males. (App. at 244.) We do not have to decide whether the Defendants’ discovery answer constitutes comparator evidence because, as9

In short, w e conclude that the District Court erred in granting summary judgment on Rosencrans’ s Title VI I and PHRA claims because there are yet factual disputes to resolve about whether she would have been terminated absent her marriage.
III. C ONCLUSION For the foregoing reasons, we will vacate the summary judgment order and remand for further proceedings.

the District Co urt rightly noted, such evidence is not the only way to satisfy the fourth prong. Back , 365 F.3d at 121.