2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-10-2000

Narin v Lower Merion Sch. Dist.

Precedential or Non-Precedential:

Docket 99-1029

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Recommended Citation

"Narin v Lower Merion Sch. Dist." (2000). 2000 Decisions. Paper 52.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/52
Filed March 10, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 99-1029 

SANDRA G. NARIN 

 Appellant 

v. 

LOWER MERION SCHOOL DISTRICT 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. Civ. No. 97-cv-6376) 

District Judge: Honorable J. Curtis Joyner 

Argued: November 2, 1999 

Before: NYGAARD, MCKEE and ROSENN, 

Circuit Judges. 

(Filed March 10, 2000) 

 Theodore R. Mann (Argued) 

 Neil C. Gever 

 Mann, Ungar, Spector & Labovitz 

 1709 Spruce Street 

 Philadelphia, PA 19103 

 Counsel for Sandra G. Narin 

 Kenneth A. Roos (Argued) 

 Justin M. O'Donoghue 

 Wisler, Pearlstine, Talone, Craig, 

 Garrity & Potash, LLP 

 484 Norristown Road -- Suite 100 

 Blue Bell, PA 19422-2326 

 Counsel for Lower Merion School 

 District 

OPINION OF THE COURT 

ROSENN, Circuit Judge. 

This appeal provides an excellent illustration of the 

difficulties that confront a claimant under the Age

Discrimination in Employment Act (ADEA). 29 U.S.C.S 621 
et seq. The plaintiff, Sandra G. Narin, applied for ten 

different teaching positions with the defendant, Lower 

Merion School District. The school district did not hire her 

for any of these positions, and it filled some of them with 

substantially younger applicants. 

Narin sought relief under the ADEA in a suit shefiled in 

the United States District Court for the Eastern District of 

Pennsylvania. The district court granted summary 

judgment in favor of Lower Merion on nine of her eleven 

claims of discrimination brought pursuant to that Act. The 

remaining two claims were tried to a jury, which returned 

a verdict in favor of Lower Merion. Before the conclusion of 

the trial, Narin uncovered additional evidence that cast 

doubt on the propriety of some of the district court's 

summary judgment rulings. She did not, however, request 

the district court to reconsider its rulings or grant her a 

new trial on the basis of the newly discovered evidence. 

After the trial and entry of judgment, Narin timely

appealed. Although this is a troublesome case, after hearing 

oral argument and carefully reviewing the record and briefs, 

we are constrained to affirm. 

I. 

Narin was born on April 2, 1941. From 1958 to 1962, she 

attended Bryn Mawr College where she earned a bachelor's 

 2 

degree in Russian with honors. From 1962 to 1965, Narin 

attended the University of Pennsylvania where she received 

a doctorate in Russian language. From 1980 to 1983, Narin 

attended Villanova University School of Law where she 

acquired a law degree. In 1994, Narin obtained teaching 

certifications in French and Russian from Bryn Mawr

College. In 1996, Narin also obtained a teaching 

certification in English from Eastern College. 

Narin completed her student teaching program in the

Lower Merion School District during the Spring of 1994. 

Thereafter, she served as a .2 long term substitute French 

teacher in the Lower Merion School District for the 1994-95 

school year.1 This position, which was temporary from the 

start, was eliminated as planned at the end of the school 

year. Narin, however, continued to work as a per diem 

substitute in the Lower Merion School District for the next 

two school years. During the 1995-96 school year, Narin 

substituted on 118 days out of the 180-day school year. 

During the 1996-97 school year, Narin substituted on 130 

days. While working as a per diem substitute, Narin applied 

for ten different teaching positions in the Lower Merion 
School District. 

First, she applied to teach French in a foreign language 

pilot program to be implemented at Cynwyd Elementary 

School. ("Count I"). She applied for this position by sending 

a letter dated April 15, 1996 to William Kearns, the director 

of personnel for the Lower Merion School District. Kearns 

replied to Narin by letter dated April 17, 1996 and informed 

her that, if the school board approved the pilot program, a 

fractional teacher would be needed for the 1996-97 school 

year. Although the program was later approved, Narin was 

neither hired nor interviewed for the position. Sandra 

Dunn, to whom Kearns delegated the responsibility of 

selecting applicants for interviews, testified in her 

deposition that she did not remember reviewing Narin's 

application, but probably would not have been interested in 

_________________________________________________________________ 

1. ".2" designates that the position involved 20% of the workload handled 

by a full-time teacher. A "long term substitute position" arises when 

there is a need to fill an extended, albeit temporary, vacancy such as 

when a teacher takes maternity or paternity leave. 

 3 

Narin because she (i.e., Dunn) "very clearly wanted

someone who had experience teaching, if not elementary 

school, at least middle school." Jt. App. at 161. Marie 

Wells, age 34, was ultimately hired for the position. 

Although, like Narin, Wells lacked full-time elementary 

teaching experience, Wells had developed and run an afterschool French program for second, third, and fourth

graders. Wells also taught middle school from 1986 to 

1989. 

Second, Narin applied for a position as a "Challenge 

Teacher" at Cynwyd Elementary School. ("Count III").2 Narin 

first expressed interest in this position in her April 15, 

1996 letter to Kearns. At that time, however, the position 

was not yet posted, and Kearns did not respond to Narin's 

inquiries in regard to it. After the position was posted 

formally on April 25, 1996, Narin sent another letter to 

Kearns dated April 29, 1996, in which she reexpressed 

interest in the "Challenge Teacher" position. Again, 

however, Narin was not interviewed for the position. In his 

declaration in support of summary judgment, Kearns stated 

that Narin was neither hired nor interviewed for the 

position because she lacked experience teaching at the 

elementary school level and did not possess an elementary 

education certification. Lower Merion ultimately hired Jill 

Horak, age 43, who possessed both. 

Third, Narin applied "for the position of regular education 
teacher for all four major subjects in an alternative setting." 

("Count IV"). She did so by sending a letter to Kearns dated 

April 29, 1996. Narin was never interviewed or contacted in 

regard to this position. Throughout discovery and in its 

motion for summary judgment, Lower Merion, relying on 

Kearns' affidavit and deposition testimony, contended that 

the position did not exist. In response, Narin pointed to a 

portion of her deposition, in which she testified that she 

had read about the position in the paper and that 

_________________________________________________________________ 

2. Narin first contended that there were two"Challenge Teacher" 

positions, and her complaint included two Counts (II and III) based on 

those positions. However, at summary judgment she only produced 

evidence that one such position existed. Accordingly, only the Count III 

"Challenge Teacher" position will be discussed in this opinion. 

 4 

"Domenick someone" had been hired for it. 3 Narin also 

attached a copy of the formal posting for the position as an 

attachment to her sur-reply to Lower Merion's motion for 

partial summary judgment on the statute of limitations.4 

Fourth, at the suggestion of Nancy Pertschuk, the 

chairperson of the Harriton High School English 

Department, Narin applied for a position to teach English at 

Harriton High School for the 1996-97 school year. ("Count 

V"). She applied by sending a letter to Kearns dated July 

30, 1996. Narin was interviewed for the position on August 

1, 1996 by Pertschuk and Harriton High School's principal, 

Norton Seaman. Seaman, who possessed the authority for 

the hiring decision, subject to final approval by the 

superintendent, testified in his deposition that he chose 

Kathy Bress, age 38, over Narin because he believed that 

Bress performed better in her interview. Pertschuk, who 

stated that Narin was her first choice, also stated that 

Kathy Bress was on her "short list" for the position and 

that her leanings toward Narin probably reflected her 

friendship with Narin. 

Fifth, on October 21, 1996, Narin applied for a .6 longterm substitute position teaching French at Bala Cynwyd 

Middle School. ("Count VI"). Again, she did so by sending a 

letter to Kearns. Narin followed up with her application on 

several occasions. Between October and January, she made 

four phone calls to Lower Merion's personnel office in 

regard to the position, however, Narin was not interviewed 

until January 7, 1997. When she was interviewed, it was by 

Kearns and Dunn, who allegedly did not come away with a 

favorable impression. Both Kearns and Dunn stated that 

while they were impressed with Narin's academic 

_________________________________________________________________ 
3. After summary judgment was entered against Narin, she learned the 

identity of the person actually hired. "Domenick someone" turned out to 

be Domenick Pavia, age 35. 

4. The posting, which ran in the April 28, 1996 Philadelphia Inquirer, 

stated: 

 Lower Merion School District has the following High School openings 

 for the 96-97 school year . . . Regular education but MULTI 

 CERTIFIED -- 6 -10 students teaching all four major subjects. Must 

 have experience teaching in an alternative setting. 

 5 

background they were concerned by Narin's lack of middle 

school experience. The two also felt that Narin performed 

poorly in her interview. Ultimately, the two recommended 

Julia Proger, a 23-year old with no experience teaching 

middle school students. Narin testified in her deposition 

that during the interview, Dunn asked her whether she "as 

a person who is returning to teaching at [her] age, after so 

long a time, could possibly adapt to the new humanistic 

methods."5 

Sixth, on December 19, 1996, Narin applied for a .4 longterm substitute position teaching English at Bala Cynwyd 

Middle School. ("Count VII"). Again, she applied by sending 

a letter to Kearns. Lower Merion contends that by the time 

Kearns received Narin's application, it had already hired 

Andrew Thomas, age 24. 

Seventh, on March 9, 1997, Narin applied for a long-term 

substitute position teaching English at Lower Merion High 

School. ("Count VIII"). Again, she did so by sending a letter 

to Kearns. Narin was interviewed for the position on March 

19, 1997 by Dr. Maher, Lower Merion High School's 

principal, and Dr. Hay, Lower Merion's coordinator of 

language arts. Dr. Maher rated Narin's interview 

performance as average. Dr. Hay rated Narin's interview 

performance slightly higher, but expressed concern about 

Narin's lack of full-time English-teaching experience. 

Ultimately, Dr. Maher, who had authority to make the 

hiring decision, subject to approval by the superintendent, 

recommended Deborah Gavin, age 27, instead of Narin. Dr. 

Maher and Dr. Hay both rated Gavin's interview 

performance highly and thought Gavin an "excellent fit" for 

the position. 

Eighth, on May 12, 1997, Narin applied for a full-time 

position teaching English at Lower Merion High School. 

("Count IX"). Again, Narin did so by sending a letter to 

Kearns. Narin was granted an interview for the position. Dr. 
Maher, Lower Merion High School's principal, conducted 

_________________________________________________________________ 

5. Narin also presented evidence that Kearns, during a 1996 faculty 

meeting, stated something to the effect that if anyone thought that Lower 

Merion hired only experienced teachers, one had but to look around at 

all the new young faces to dispel that idea. 

 6 

the interviews for the position in July of 1997. Dr. Maher's 

first choice for the position was Marsha Pincus, age 45. 

Pincus, however, withdrew her name from consideration 

after she was selected as the top candidate. Dr. Maher then 

extended an offer to Deborah Gavin, age 27. Dr. Maher 

stated that he chose Gavin over Narin because Gavin

performed better in her interview and because he had been 

favorably impressed with Gavin during her prior position as 

a long term substitute. 

Ninth, and also on May 12, 1997, Narin applied for a.8 

long-term substitute position teaching English at Harriton 

High School. ("Count X"). She expressed her interest in the 

position by sending a letter to Kearns. Narin was granted 

an interview for this position. Harriton High School 

principal Joel Bartolomeo, Lower Merion School District 

gifted education supervisor Cecil Frey, Harriton High School 

assistant principal William Loue, and student council 

president Benjamin Getto conducted the interviews for the 

position, including Narin's. Based on the interviews, the 

committee's first choice for the position was Rayna

Goldfarb, age 51. When Goldfarb withdrew her name from 

consideration, the committee opted to extend an offer to 

Rita Lerario, age 49. Out of the five candidates interviewed 

for the position, the committee ranked Narin fourth. 

Tenth, on June 19, 1997, Narin applied for a Challenge 

Teacher position at Welsh Valley Middle School. ("Count 

XI"). Again, she was not hired. Lower Merion contends that 

it did not interview any candidates for this position. 

Instead, it asserts that when Frank Panaia, a 54-year old 

social studies teacher at Welsh Valley, applied for a 

transfer, Lower Merion offered him the position. 

Finally, Narin also alleged that she was not hired for a 

number of instructional aide positions. ("Count XII"). 

However, Narin does not identify any specific instructional 

aide position for which she applied and was not hired. 

Understandably, Narin was extremely frustrated by Lower 

Merion's repeated rejections of her applications. She 

believed the rejections to be a result of her age rather than 

her qualifications, and, on June 10, 1997, shefiled a 
charge of discrimination with the Equal Employment 

 7 

Opportunity Commission ("EEOC") and the Pennsylvania 

Human Relations Commission ("PHRC"). After receiving a 

right to sue letter, Narin filed a complaint in the United 

States District Court for the Eastern District of 

Pennsylvania. In her complaint she alleged that Lower 

Merion's repeated refusals to hire her constituted age 

discrimination, in violation of the ADEA. 

After a lengthy period of discovery, Lower Merionfiled two 

motions for summary judgment: a motion for summary 

judgment on all counts and a motion for partial summary 

judgment based on the statute of limitations. In its motion 

for summary judgment on all counts, Lower Merion 

contended that with respect to each position for which 

Narin applied and was rejected, Narin either failed to 

establish a prima facie case or produced no evidence to 

suggest that Lower Merion's legitimate, nondiscriminatory 

reasons for not hiring her were pretext. In its motion for 

summary judgment based on the statute of limitations, 

Lower Merion asserted that Counts I through V of Narin's 

complaint were time barred under 29 U.S.C. S 626(d)(2) 

because the alleged unlawful employment practices 

underlying these Counts occurred more than 300 days

before Narin filed her complaint with the PHRC and the 

EEOC. 

The district court first considered Lower Merion's motion 

for summary judgment on all counts. It carefully reviewed 

the evidence produced during discovery and reached the 

following conclusions. First, with respect to Count IV, the 

district court determined that Narin failed to state a prima 

facie case of age discrimination because she produced 

insufficient evidence to demonstrate that the Count IV 

position had been filled with someone sufficiently younger 

to permit an inference of age discrimination. Next, with 

respect to Count III and Counts VII through XI, the district 

court determined that although Narin established a prima 

facie case as to these Counts, she failed to present evidence 

from which a reasonable trier of fact could conclude that 

Lower Merion's legitimate, nondiscriminatory reasons for 

not hiring her were pretext for age discrimination. Finally, 

with respect to the instructional aide positions referred to 

in Count XII, the district court reasoned that Narin failed to 

 8 

establish a prima facie case because she could not show 

that she applied for, or expressed interest in, these 
positions. 

After disposing of Lower Merion's motion for summary 

judgment on all counts, the district court turned to Lower 

Merion's motion for partial summary judgment based on 

the statute of limitations. Although the motion was directed 

at Counts I through V, the district court only addressed 

Counts I and V because it had already disposed of the other 

Counts in addressing Lower Merion's motion for summary 

judgment on all counts. As to Count I, the district court 

concluded that Lower Merion failed to demonstrate that 

Narin's cause of action accrued prior to the 300 day 

limitations period established by 29 U.S.C. S 626(d)(2). It 

therefore denied summary judgment on that Count. As to 

Count V, the district court found that Narin's cause of 

action had accrued outside of the 300 day limitations 

period and that the cause of action was therefore barred. 

The only Counts remaining, Counts I and VI, were tried 

to a jury, which returned a verdict in favor of Lower Merion. 

II. 

Narin contends that the district court erred in granting 

summary judgment on Counts III through V and Counts VII 

through XII. With respect to Count IV, Narin contends that 

the district court incorrectly determined that she failed to 

establish a prima facie case of discrimination. With respect 

to Count III and Counts VII through XII, Narin argues that, 

although she failed to produce any evidence to demonstrate 

that Lower Merion's reasons for not hiring her for the 

positions underlying these Counts were pretext, the district 

court nevertheless erred in granting summary judgment on 

them because it "erroneously considered each rejected 

application in isolation from all others and ignored the 

principle that if some of the proffered reasons advanced by 

a defendant employer are prextextual, `a factfinder may 

rationally disbelieve the remaining proffered reasons, even 

if no evidence undermining those remaining rationales in 

particular is available.' " App. Br. at 7 (quoting Fuentes v. 

Perskie, 32 F.3d 759, 764 n. 7 (3d Cir. 1994)). As to Count 

 9 

V, Narin argues that the district court incorrectly concluded 

that this claim was time barred under 29 U.S.C.S 626(d)(2). 

We undertake plenary review of the district court's grant 

of summary judgment, see Fuentes, 32 F.3d at 763, and 

address each of Narin's contentions.6 

A. 
To establish a prima facie case of age discrimination 

under the ADEA, a plaintiff must establish that: (1) she was 

over 40 at the time she applied for the position in question; 

(2) she was qualified for the position in question; (3) despite 

her qualifications she was rejected; and (4) the employer 

ultimately filled the position with someone sufficiently 

younger to permit an inference of age discrimination. See 

Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d 

Cir. 1995). Sempier v. Johnson & Higgins, 45 F.3d 724, 728 

(3d Cir. 1995). The district court concluded that Narin 

failed to establish a prima facie case as to Count IV 

because she could not establish that the position was filled 

by someone sufficiently younger to permit an inference of 

age discrimination. 

At the time the district court entered summary judgment 

on Count IV, Narin only presented evidence that"Domenick 

somebody" had been hired to fill the teacher in the

alternative setting position. She did not know the 

_________________________________________________________________ 

6. As a preliminary matter, we note that counsel for Lower Merion has 

submitted a letter pursuant to Federal Rule of Appellate Procedure 28(j), 

in which he contends that the Supreme Court's decision in Kimel v. 

Florida Board of Regents, ___ U.S. #6D6D 6D#, 120 S.Ct. 631 (2000) renders 

the 

ADEA inapplicable to Lower Merion. This contention is meritless. In 

Kimel, the Supreme Court held "only that, in the ADEA, Congress did 

not validly abrogate the States' sovereign immunity to suits by private 

individuals." Lower Merion, however, is not a state or an arm of the state 

for eleventh Amendment purposes and therefore is not entitled to 

sovereign immunity. See Lester H. v. Gilhool, 916 F.2d 865, 870-71 (3d 

Cir. 1990) cert. denied, 499 U.S. 923 (1991)(holding that school districts 

do not share in the Commonwealth of Pennsylvania's Eleventh 

Amendment sovereign immunity, because they are not alter egos of the 

Commonwealth)(citing Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 

429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977)). 

 10 

individual's last name. Nor did she know his age. It was 

only after summary judgment was entered that Narin 

learned that "Domenick somebody" was actually Domenick 

Pavia, age 35. However, we do not understand Narin's 

argument on appeal to be that the district court erred in 

granting summary judgment on the basis of evidence she 

failed to present. Rather, we understand Narin to argue 

that her failure to produce the age and identity of the 

individual who ultimately filled the position should have 

been excused because she presented evidence at the 

summary judgment stage establishing that the Count IV 

position existed, thus severely undermining Lower Merion's 

repeated contention that the position did not exist. 
Although we recognize that the elements of the prima 

facie discrimination case are not to be applied rigidly, see 

E.E.O.C. v. Metal Serv. Co., 892 F.2d 341, 348 (3d Cir. 

1990), we do not believe the district court erred in granting 

summary judgment. In producing the posting that 

established the existence of the Count IV position, Narin 

undoubtedly produced evidence suggesting that she had 

been treated unfairly by Lower Merion. But, to survive 

Lower Merion's motion for summary judgment Narin 

needed to do more than present evidence suggesting that 

she had been treated unfairly by the school district. She 

needed to present evidence suggesting that the unfair 

treatment she received was a result of her age. Because 

Narin presented no evidence that the Count IV position was 

filled by someone sufficiently younger than Narin, we 

cannot fault the district court for not finding that it could 

infer age discrimination. 

The appropriateness of the district court's decision to 

grant summary judgment on Count IV also is supported by 

Narin's failure to establish that she was qualified for the 

position: element two of the prima facie case. See Brewer, 

72 F.3d at 330. The Count IV position required a multicertified teacher with experience in an "alternative setting." 

Although Narin possesses certifications in two foreign 

languages and in English, she lacks certification to teach 

mathematics and science. Perhaps certifications in 

mathematics and science were not necessary, but the

burden to establish their irrelevance was Narin's. She failed 

 11 

to present any evidence in this regard. In addition, Narin 

also failed to present evidence demonstrating that she had 

experience teaching in an "alternative setting," which the 

advertisement expressly required. Although the court will 

not countenance any unlawful discrimination because of 

age, we recognize that the district court must weigh 

carefully the evidence or lack thereof of discrimination. 

In sum, although we are disturbed by the actions of

Lower Merion in insisting that the Count IV position did not 

exist, we do not believe that those actions, reprehensible as 

they may be, were sufficient to permit an inference of ADEA 

discrimination and excuse Narin's failure to establish two 

elements of the prima facie case.7 Accordingly, we are 

constrained to affirm the district court's grant of summary 

judgment as to Count IV. 

B. 

Narin next contends that the district court erred in 
granting summary judgment as to Count III and Counts VII 

through XII. In this connection, Narin does not argue that 

the district court incorrectly concluded that she failed to 

produce evidence specifically directed at undercutting the 

credibility of Lower Merion's legitimate, nondiscriminatory 

reasons for not hiring her for the positions underlying these 

Counts. Rather she argues that summary judgment was

inappropriate even in the absence of such evidence.

Specifically, she asserts that the evidence of pretext with 

respect to Counts I, V, and VI coupled with the evidence of 

what she considers to be Kearns' central and deceptive role 

in the hiring process provided a sufficient basis from which 

a rational trier of fact could have concluded that all of 

Lower Merion's justifications for not hiring her were pretext. 

_________________________________________________________________ 

7. We also note that when Narin uncovered the posting for the Count IV 

position, the proper course would have been to request a continuance to 

take additional discovery. See Fed. R. Civ. P. 56(f). Alternatively, when 

Narin learned the age and identity of "Domenick somebody" before the 

commencement of the trial, she also could have requested the district 

court to reconsider its grant of summary judgment on the Count IV 

position. 

 12 

In support of her position, Narin principally relies on this 

Court's decision in Fuentes. In Fuentes , this Court held 

that "to avoid summary judgment, the plaintiff's evidence 

rebutting the employer's proffered legitimate reasons must 

allow a factfinder reasonably to infer that each of the 

employer's proffered nondiscriminatory reasons . . . was 

either a post hoc fabrication or otherwise did not actually 

motivate the employment action." Fuentes, 32 F.3d at 764. 

However, in announcing this holding, we were careful to 

note that it is not necessary for a plaintiff to"cast doubt on 

each proffered reason in a vacuum." Id. at 764 n. 7. Rather, 

"[i]f the defendant proffers a bagful of legitimate reasons, 

and the plaintiff manages to cast substantial doubt on a 

fair number of them, the plaintiff may not need to discredit 

the remainder." Id. This is so "because the factfinder's 

rejection of some of the defendant's proffered reasons may 

impede the employer's credibility seriously enough so that 

a factfinder may rationally disbelieve the remaining 

proffered reasons, even if no evidence undermining those 

remaining rationales in particular is available." Id. at 764- 

765 n. 7. 

Lower Merion contends that this aspect of the Fuentes 

decision has no application to Narin's case. It argues that 

the above-quoted statements apply only in situations where 

the defendant offers several nondiscriminatory reasons for 

a single employment decision rather than where, as here, 
the defendant offers separate reasons for separate 

employment decisions. We need not decide the issue. Even 

if we were to give Fuentes the expansive reading that Narin 

suggests, Narin's evidence of pretext with respect to Counts 

I, V, and VI, even when coupled with the evidence of 

Kearns' central and allegedly hostile role in the hiring 

process, would not warrant reversal of summary judgment 

on the remaining Counts. 

First, we note that, although the district court concluded 

otherwise, Narin's evidence of pretext with respect to the 

Count V position (Harriton High School English Teacher) 

was insufficient as a matter of law. Principal Seaman, who 

possessed authority for the hiring decision, testified that he 

did not hire Narin for the Count V position because he felt 

that Narin did not perform as well in her interview as 

 13 

another candidate, Kathy Bress. To demonstrate that this 

subjective justification constituted pretext, Narin principally 

relied on the deposition testimony of her other interviewer, 

Nancy Pertschuk. Pertschuk testified that she rated Narin's 

interview performance highly and considered Narin the top 

choice for the position. However, Pertschuk also testified 

that Kathy Bress was on her "short list" of two for the 

position and that her leanings toward Narin probably 

reflected that she was friends with Narin. Thus, rather than 

undercut Principal Seaman's justification for not hiring 

Narin, a decision made principally on the basis of a 

subjective interview, which is a ready tool for 

discrimination, Pertshuk's testimony tends to substantiate 

it.8 

Second, as to the positions underlying Counts VIII 

through XI, we do not see how Narin's evidence of pretext 

with respect to Counts I and VI, or her evidence that 

Kearns lied about the existence of the Count IV position, 

renders summary judgment inappropriate as to those 

Counts. At the time Narin applied for the positions

underlying Counts VIII through XI, Narin had spoken with 

Kearns and expressed her suspicion that Lower Merion was 

discriminating against her on the basis of her age. After 

this discussion, Kearns automatically forwarded any

application he received from Narin to the building principal 

responsible for the hiring decision. Narin then was

interviewed by several different individuals, and the record 

is devoid of any evidence suggesting that the justifications 

of these decision makers for not hiring Narin amounted to 

pretext. Because Kearns had nothing to do with the 

decisions reached in these counts, his lack of credibility 

may not be attributed to the hiring decisions. Thus, without 

evidence of pretext relevant to the justifications for not 
hiring Narin for these positions, no rational trier of fact 

_________________________________________________________________ 

8. Accordingly, we will affirm the district court's grant of summary 

judgment as to Count V on the ground that Narin failed to produce 

sufficient evidence of pretext, rather than on the ground that the claim 

was time barred under 29 U.S.C. S 626. An appellate court may affirm 

a decision on a ground other than that relied on by the district court. 

Myers v. American Dental Assoc., 695 F.2d 716, 725 (3d Cir. 1982). 

 14 

could find them unworthy of credence. See Fuentes, 32 

F.3d at 764.9 

Count XII likewise cannot be saved from summary 

judgment on the basis of Narin's evidence of pretext derived 

from Counts I, IV, and VI because Narin failed to establish 

a prima facie case with respect to Count XII. In her 

complaint Narin alleged that she was not hired for various 

instructional aide positions on the basis of her age. 

However, as the district court noted, the record is devoid of 

any evidence that Narin ever applied for these positions or 

expressed interest in them. Because she did not do so, she 

cannot predicate a claim of discrimination on Lower

Merion's failure to hire her for those positions. See In re 

Carnegie Ctr. Assocs., 129 F.3d 290, 298 (3d Cir. 1997). 

Finally, turning to Counts III and VII, we again conclude 

that no rational trier of fact could find that Lower Merion's 

justifications for not hiring Narin for the positions referred 

to in these Counts were pretextual. As to Count III, Lower 

Merion produced evidence tending to demonstrate that it 

did not interview Narin because she lacked elementary 

school teaching experience as well as an elementary school 

certification. Discovery revealed that the individual 

ultimately hired for the position possessed both. As to 

Count VII, Lower Merion presented evidence that it did not 

hire Narin for the position because it had alreadyfilled the 

position by the time Narin applied for it. Narin produced no 

evidence to contradict this legitimate, nondiscriminatory 

reason. Although Kearns was involved in the screening of 

Narin's application for both of these positions, we do not 

believe his actions in connection with Counts IV and VI 

provide a sufficient basis from which a rational trier of fact 

could conclude that the reasons for not hiring Narin for the 

above positions amounted to pretext. We believe a court 

must exercise caution in permitting claims to proceed to 

_________________________________________________________________ 

9. Moreover, we also think that as to Counts X and XI Narin failed to 

establish a prima facie case of discrimination. Lower Merion hired Rita 

Lerario, age 49, and Frank Panaia, age 54, for the Count X and XI 
positions. Because these individuals' ages do not differ materially from 

Narin's, we cannot conclude that Lower Merion ultimately filled the 

Count X and XI positions with someone sufficiently younger to permit an 

inference of discrimination. See Brewer, 72 F.3d at 330. 

 15 

trial on the basis of evidence of pretext presented in 

connection with other claims, and we therefore see no error 

in the district court's exercise of that caution here. 

Accordingly, we will affirm the district court's grant of 

summary judgment as to Counts III and V and Counts VII 

through XII. 

III. 

In addition to her challenges to the district court's 

summary judgment rulings, Narin also challenges three 

evidentiary rulings of the district court. Where a party 

makes known the substance of the evidence she desires to 

introduce, we review the district court's decision to exclude 

the evidence for an abuse of discretion. See Walden v. 

Georgia Pacific Corp., 126 F.3d 506, 517 (3d Cir. 1997). 

However, where a party fails to make known the substance 

of the evidence she desires to introduce, we review only for 

plain error. See id. 

A. 

Narin first argues that the district court abused its 

discretion in excluding evidence related to Counts III and IV 

and Counts VII through XII. Specifically, she claims that 

"[t]he jury should have been permitted to hear evidence of 

pretext pertaining to one or more of the nine dismissed 

counts in evaluating the reasons proffered for the Count I 

and VI rejections." But, with respect to Count III and 

Counts VII through XII, Narin produced no evidence of 

pretext. Thus, the district court did not abuse its discretion 

by excluding evidence Narin simply did not have. As to 

Count IV, although Narin possessed evidence undermining 

the credibility of Kearns with respect to the Count IV 

position, the record does not disclose that Narin ever 

attempted to offer this evidence, and we perceive no plain 

error in the district court's failure to advise her to introduce 

the evidence. 

B. 

Narin's next argument is that the district court abused 

its discretion in excluding evidence of pretext produced in 

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connection with Count V. The district court excluded the 

evidence because it believed evidence of time barred claims 

inadmissible to show pretext. In our view, even assuming 

the district court's evidentiary ruling in this regard was 

erroneous, the error was harmless. First, as noted above, 

Narin's evidence of pretext with respect to Count V was 

insufficient as a matter of law and, therefore, not

particularly helpful to establish pretext with respect to 

Counts I and VI. Second, even if Narin had produced

evidence sufficient to undermine the credibility of Principal 

Seaman's justification for not hiring Narin for the Count V 

position, the evidence would still be irrelevant to Counts I 

and VI because Seaman had nothing to do with the 

decisions not to hire Narin for the positions underlying 

Counts I and VI. 

C. 

Narin's final evidentiary point is that the district court 

abused its discretion in excluding certain numerical 

evidence pertaining to Lower Merion's hiring practices. 

Specifically, Narin sought to introduce yearly lists 

containing the names and ages of the individuals hired by 

Lower Merion for every year beginning with 1986 and

continuing through 1997. Narin asserts in this appeal, as 

she did in the district court, that the lists demonstrate that 

in 1992 Lower Merion began to hire substantially more 

teachers under the age of 35, and that this hiring practice 

continued at least until 1997. 

The district court permitted Narin to offer a list for the 

1996-97 school year, the time during which Narin was 

applying for jobs in the Lower Merion school district. 

However, it refused to permit Narin to introduce hiring lists 

for any other years on the ground that they were irrelevant. 

Again, we perceive no abuse of discretion. The lists Narin 

sought to introduce provided the ages of the individuals 

Lower Merion actually hired. In addition, the lists reflected 

that Lower Merion hired more individuals younger than 

forty years of age than older. However, we think these 

figures could only be probative of discriminatory intent if, 

at the very least, it also were shown that roughly equivalent 

numbers of over-forty and under-forty individuals applied 

 17 

for employment with Lower Merion. Otherwise, the lists 

simply show that Lower Merion hires young individuals -- 

not that Lower Merion hires young individuals to the 

exclusion of older ones. 
IV. 

Accordingly, for the reasons set forth above, the 

judgment of the district court will be affirmed. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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