NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 18-1345

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KYMBERLEY COLE ROSENCRANS,

Appellant

v.

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

_______________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-17-cv-00055)

District Judge: Honorable Richard P. Conaboy

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Submitted Under Third Circuit LAR 34.1(a)

November 2, 2018

Before: CHAGARES, JORDAN, and VANASKIE, Circuit Judges.

(Filed: November 27, 2018)

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OPINION*

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JORDAN, Circuit Judge.

Kymberley Cole Rosencrans appeals the grant of summary judgment for Quixote 

Enterprises, Inc. (“Quixote”) and Charles Eric Morrow (collectively, 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, we will vacate 

and remand.

I. BACKGROUND

In 2015, Rosencrans was hired to be a district manager at Quixote, an adult 

entertainment business. Morrow is the part-owner 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 developed a friendship, which, in May 

2015, led to their having sex. After that one-time encounter, the two remained on good 

terms. 

In the fall of 2015, Rosencrans and Morrow discussed having Rosencrans begin

work at Quixote. She asserts that Morrow complained 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 counter that Rosencrans pestered Morrow to hire her and he 

finally relented and allowed her to apply, despite having serious 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 dispute 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

Nonetheless, Morrow decided to hire Rosencrans as a district manager. After he 

informed Quixote’s office manager, Sharon Greco, and Quixote’s Controller, Larry 

Schemery, of that decision, Greco and Schemery met with Rosencrans to complete 

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 

“evaluation period.” (App. at 106-07.) 

On November 9, 2015, Rosencrans began her employment with Quixote. The 

parties disagree about much of what happened over the next eleven days –the entirety of 

Rosencrans’s tenure at the company. For example, the Defendants 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 

that is false. 

What is undisputed, however, is that on Sunday, November 15, Rosencrans flew to 

Las Vegas and got married. Four days later, on Thursday, November 19, she sent 

Morrow a text with that news. The next day, she was fired. 

Before she learned of her firing, she had sent Morrow another text, this one asking 

whether she would have a company car in time for her training in Syracuse. Morrow 

responded, “Change of plans... [T]alk to Larry [Schemery] in the office.” (App. at 228.) 

Rosencrans called Schemery, who told her she “wasn’t working out and ... they were 

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

152.) After the call, Rosencrans and Morrow exchanged a series of texts, in the course of 
4

which Morrow told Rosencrans, “Ur just not working out 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 Defendants maintain that it was 

Schemery, not Morrow, who 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 Schemery who terminated

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, when they asked for permission to discharge her, 

Morrow told them, “[D]o what you have to do.” (App. at 89.) 

In January 2017, Rosencrans filed suit against Quixote and Morrow in the United 

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 against Morrow a

violation 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 District Court 

granted that motion as to the quid pro quo sex discrimination claim against Quixote but 

denied it as to the other claims. The Defendants eventually moved for summary 
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judgment on Rosencrans’s remaining claims, and the Court granted that motion, 

concluding that Rosencrans had failed to establish a prima facie case of discrimination. 

Rosencrans timely appealed. 

II. DISCUSSION2

Rosencrans asserts that the District Court erred in granting summary judgment on 

her disparate treatment and aiding and abetting sex discrimination claims. We agree, 

because there is a genuine issue of material fact as to whether discriminatory animus 

motivated her firing.

The familiar McDonnell Douglas burden-shifting analysis applies to Rosencrans’s

discrimination claims under Title VII and the PHRA.

3 McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973). Under that framework, Rosencrans bears the initial burden 

of establishing a prima facie case of discrimination. Id. at 802-03. If she can do so, the 

burden of production shifts to the Defendants “to articulate some legitimate, 

nondiscriminatory reason” for her firing. Id. at 802. If the Defendants carry that burden, 

Rosencrans must then come forward with evidence that the legitimate reason offered by 

 

2 The District Court had jurisdiction under 28 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 as 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., 477 U.S. 242, 248 (1986).

3

Insofar as claims of the kind here are concerned, the 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, Rosencrans must show that (1) she is a member of a protected class; (2) 

she was qualified for the position; (3) she suffered an adverse employment action; and (4) 

the action occurred 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 position; 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 showing

that her termination occurred under circumstances giving rise to an inference of sex 

discrimination. Rosencrans rightly contends that that was error. 

A Title VII claim premised upon marital status raises “what 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 that burden by putting forth evidence showing she was treated less favorably than 

similarly situated men or through evidence of other circumstances, such as impermissible 

stereotyping, that gives rise to an inference 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 

her discharge occurred under circumstances giving rise to an inference of impermissible 

discrimination. For example, in response to Rosencrans’s text messages questioning her 

firing, Morrow texted back, “U have ... a new husband.” (App. at 228.) When asked at 

his deposition why 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 that girl. It is 

not my job.... Let him take care of her.” (App. at 181.) While the District Court 

credited this as evidence of impermissible stereotyping on Morrow’s part, it nonetheless 

concluded that Rosencrans’s claim failed because she could not show that Morrow was 

the decisionmaker behind her firing or that Schemery and Greco shared Morrow’s views. 

That conclusion, 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.) While Morrow testified that he does not “hire and fire 

people,” the evidence here can be viewed otherwise. (App. at 164.) Morrow was 
8

apparently the one who hired her,4and 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 

did seek his permission. And, of significance, there is a very close temporal proximity –

a single day – between when Rosencrans told Morrow she had gotten married and her 

termination. See Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 

1997) (“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 

circumstantial evidence sufficient to raise the inference that her protected activity was the 

likely reason for the adverse action.” (quotation marks and citation omitted)). Taking all 

of the evidence in the light most favorable to Rosencrans, there is sufficient evidence 

connecting her firing to impermissible discrimination to establish the requisite prima 

facie case under both Title VII and the PHRA.

5

 

 

4 As the Defendants describe Rosencrans’s hiring, “Morrow reluctantly 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 Rosencrans the position. 

Rosencrans says Morrow offered her the district manager position. Based on that record, 

it can be fairly understood that Morrow hired Rosencrans.

5 The Defendants argue that Rosencrans has failed to put forward sufficient 

comparator evidence to make out a prima facie case. She counters 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 during 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, as 
9

In short, we conclude that the District Court erred in granting summary judgment 

on Rosencrans’s Title VII and PHRA claims because there are yet factual disputes to 

resolve about whether she would have been terminated absent her marriage.

III. CONCLUSION

For the foregoing reasons, we will vacate the summary judgment order and 

remand for further proceedings.

 

the District Court rightly noted, such evidence is not the only way to satisfy the fourth 

prong. Back, 365 F.3d at 121.