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D ock e t 99-1029

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. e du/thir dc ir c uit_2000/52Filed 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 t he difficulties that confront a claimant under the Age Discrimination in Employment Act (ADEA). 29 U.S.C.S 621et seq. The plaintiff, Sandra G. Narin, applied for ten

different teaching positions with the defendant, Lo wer Merion School District. The school district did not hire her for any of these positions, and it filled some of t hem with substantially younger applicants.

Narin sought relief under the ADEA in a suit shefil ed in

the United States District Court for the Eastern Di strict of Pennsylvania. The district court granted summary judgment in favor of Lower Merion on nine of her el even claims of discrimination brought pursuant to that A ct. The remaining two claims were tried to a jury, which re turned

a verdict in favor of Lower Merion. Before the conc lusion of the trial, Narin uncovered additional evidence that cast doubt on the propriety of some of the district cour t's summary judgment rulings. She did not, however, req uest the district court to reconsider its rulings or gra nt her a new trial on the basis of the newly discovered evid ence.

After the trial and entry of judgment, Narin timely appealed. Although this is a troublesome case, afte r hearing oral argument and carefully reviewing the record an d 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 bache lor's

2

degree in Russian with honors. From 1962 to 1965, N arin attended the University of Pennsylvania where she r eceived a doctorate in Russian language. From 1980 to 1983, Narin attended Villanova University School of Law where s he acquired a law degree. In 1994, Narin obtained teac hing 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 1 994. 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 fr om the start, was eliminated as planned at the end of the school year. Narin, however, continued to work as a per di em substitute in the Lower Merion School District for the next two school years. During the 1995-96 school year, N arin substituted on 118 days out of the 180-day school y ear. During the 1996-97 school year, Narin substituted o n 130 days. While working as a per diem substitute, Narin applied for ten different teaching positions in the Lower M erionSchool District.

First, she applied to teach French in a foreign lan guage pilot program to be implemented at Cynwyd Elementar y School. ("Count I"). She applied for this position by sending a letter dated April 15, 1996 to William Kearns, th e 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 pr ogram, a fractional teacher would be needed for the 1996-97 school year. Although the program was later approved, Nari n was neither hired nor interviewed for the position. San dra Dunn, to whom Kearns delegated the responsibility o f selecting applicants for interviews, testified in h er deposition that she did not remember reviewing Nari n's application, but probably would not have been inter ested in

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1. ".2" designates that the position involved 20% o f the workload handled by a full-time teacher. A "long term substitute pos ition" arises when there is a need to fill an extended, albeit tempora ry, vacancy such as when a teacher takes maternity or paternity leave.

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Narin because she (i.e., Dunn) "very clearly wanted someone who had experience teaching, if not element ary school, at least middle school." Jt. App. at 161. M arie Wells, age 34, was ultimately hired for the positio n. Although, like Narin, Wells lacked full-time elemen tary 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 "Challeng e Teacher" at Cynwyd Elementary School. ("Count III") .2 Narin first expressed interest in this position in her Ap ril 15, 1996 letter to Kearns. At that time, however, the p osition was not yet posted, and Kearns did not respond to N arin's inquiries in regard to it. After the position was p osted formally on April 25, 1996, Narin sent another lett er to Kearns dated April 29, 1996, in which she reexpress ed 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 th e position because she lacked experience teaching at the elementary school level and did not possess an elem entary education certification. Lower Merion ultimately hi red Jill Horak, age 43, who possessed both.

Third, Narin applied "for the position of regular e ducationteacher for all four major subjects in an alternati ve setting."

("Count IV"). She did so by sending a letter to Kea rns dated April 29, 1996. Narin was never interviewed or cont acted in regard to this position. Throughout discovery and i n its motion for summary judgment, Lower Merion, relying on Kearns' affidavit and deposition testimony, contend ed that the position did not exist. In response, Narin poin ted to a portion of her deposition, in which she testified t hat she had read about the position in the paper and that

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2. Narin first contended that there were two"Challe nge Teacher" positions, and her complaint included two Counts (I I and III) based on those positions. However, at summary judgment she o nly produced evidence that one such position existed. Accordingl y, only the Count III "Challenge Teacher" position will be discussed in t his opinion.

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"Domenick someone" had been hired for it. 3 Narin a lso attached a copy of the formal posting for the posit ion as an attachment to her sur-reply to Lower Merion's motio n for partial summary judgment on the statute of limitati ons.4

Fourth, at the suggestion of Nancy Pertschuk, the chairperson of the Harriton High School English Department, Narin applied for a position to teach E nglish at Harriton High School for the 1996-97 school year. ( "Count V"). She applied by sending a letter to Kearns date d July 30, 1996. Narin was interviewed for the position on August 1, 1996 by Pertschuk and Harriton High School's pri ncipal, Norton Seaman. Seaman, who possessed the authority for the hiring decision, subject to final approval by t he 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 positio n and that her leanings toward Narin probably reflected h er friendship with Narin.

Fifth, on October 21, 1996, Narin applied for a .6 longterm substitute position teaching French at Bala Cy nwyd Middle School. ("Count VI"). Again, she did so by s ending a letter to Kearns. Narin followed up with her applic ation 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 inte rviewed until January 7, 1997. When she was interviewed, it was by Kearns and Dunn, who allegedly did not come away wi th a favorable impression. Both Kearns and Dunn stated t hat 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 so meone" turned out to be Domenick Pavia, age 35.

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

stated:

Lower Merion School District has the followi ng High School openings for the 96-97 school year . . . Regular educ ation but MULTI CERTIFIED -- 6 -10 students teaching all fou r major subjects. Must have experience teaching in an alternative s etting.

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background they were concerned by Narin's lack of m iddle school experience. The two also felt that Narin per formed poorly in her interview. Ultimately, the two recomm ended Julia Proger, a 23-year old with no experience teac hing middle school students. Narin testified in her depo sition that during the interview, Dunn asked her whether s he "as a person who is returning to teaching at [her] age, after so long a time, could possibly adapt to the new humani stic

methods."5

Sixth, on December 19, 1996, Narin applied for a .4 longterm substitute position teaching English at Bala C ynwyd Middle School. ("Count VII"). Again, she applied by sending a letter to Kearns. Lower Merion contends that by t he 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 Merio n High School. ("Count VIII"). Again, she did so by sendin g a letter to Kearns. Narin was interviewed for the position o n 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 inter view performance slightly higher, but expressed concern about Narin's lack of full-time English-teaching experien ce. Ultimately, Dr. Maher, who had authority to make th e hiring decision, subject to approval by the superin tendent, 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-t ime position teaching English at Lower Merion High Scho ol. ("Count IX"). Again, Narin did so by sending a lett er to Kearns. Narin was granted an interview for the posi tion. Dr.Maher, Lower Merion High School's principal, conduc ted

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5. Narin also presented evidence that Kearns, durin g a 1996 faculty meeting, stated something to the effect that if any one thought that Lower Merion hired only experienced teachers, one had but to look around at all the new young faces to dispel that idea.

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the interviews for the position in July of 1997. Dr . Maher's first choice for the position was Marsha Pincus, ag e 45. Pincus, however, withdrew her name from considerati on after she was selected as the top candidate. Dr. Ma her then extended an offer to Deborah Gavin, age 27. Dr. Mah er stated that he chose Gavin over Narin because Gavin performed better in her interview and because he ha d been favorably impressed with Gavin during her prior pos ition as a long term substitute.

Ninth, and also on May 12, 1997, Narin applied for a.8 long-term substitute position teaching English at H arriton High School. ("Count X"). She expressed her interes t in the position by sending a letter to Kearns. Narin was g ranted an interview for this position. Harriton High Schoo l principal Joel Bartolomeo, Lower Merion School Dist rict gifted education supervisor Cecil Frey, Harriton Hi gh School assistant principal William Loue, and student counc il president Benjamin Getto conducted the interviews f or the position, including Narin's. Based on the interview s, the committee's first choice for the position was Rayna Goldfarb, age 51. When Goldfarb withdrew her name f rom consideration, the committee opted to extend an off er to Rita Lerario, age 49. Out of the five candidates in terviewed for the position, the committee ranked Narin fourth

.

Tenth, on June 19, 1997, Narin applied for a Challe nge Teacher position at Welsh Valley Middle School. ("C ount XI"). Again, she was not hired. Lower Merion conten ds that it did not interview any candidates for this positi on. Instead, it asserts that when Frank Panaia, a 54-ye ar 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 instr uctional aide position for which she applied and was not hir ed.

Understandably, Narin was extremely frustrated by L ower Merion's repeated rejections of her applications. S he believed the rejections to be a result of her age r ather than her qualifications, and, on June 10, 1997, shefiled acharge of discrimination with the Equal Employment

7

Opportunity Commission ("EEOC") and the Pennsylvani a Human Relations Commission ("PHRC"). After receivin g 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 Low er Merion's repeated refusals to hire her constituted age discrimination, in violation of the ADEA.

After a lengthy period of discovery, Lower Merionfi led two motions for summary judgment: a motion for summary judgment on all counts and a motion for partial sum mary judgment based on the statute of limitations. In it s motion for summary judgment on all counts, Lower Merion contended that with respect to each position for wh ich Narin applied and was rejected, Narin either failed to establish a prima facie case or produced no evidenc e to suggest that Lower Merion's legitimate, nondiscrimi natory reasons for not hiring her were pretext. In its mot ion for summary judgment based on the statute of limitation s, Lower Merion asserted that Counts I through V of Na rin'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 re viewed the evidence produced during discovery and reached the following conclusions. First, with respect to Count IV, the

district court determined that Narin failed to stat e a prima facie case of age discrimination because she produc ed

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 presen t evidence

from which a reasonable trier of fact could conclud e that Lower Merion's legitimate, nondiscriminatory reason s for not hiring her were pretext for age discrimination. Finally, with respect to the instructional aide positions re ferred to in Count XII, the district court reasoned that Nari n failed to

8

establish a prima facie case because she could not show that she applied for, or expressed interest in, the sepositions.

After disposing of Lower Merion's motion for summar y judgment on all counts, the district court turned t o 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 addr essed Counts I and V because it had already disposed of t he other Counts in addressing Lower Merion's motion for summ ary judgment on all counts. As to Count I, the district court

concluded that Lower Merion failed to demonstrate t hat Narin's cause of action accrued prior to the 300 da y 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 caus e of action had accrued outside of the 300 day limitatio ns period and that the cause of action was therefore b arred.

The only Counts remaining, Counts I and VI, were tr ied to a jury, which returned a verdict in favor of Low er Merion.

II.

Narin contends that the district court erred in gra nting summary judgment on Counts III through V and Counts VII through XII. With respect to Count IV, Narin conten ds that the district court incorrectly determined that she failed to establish a prima facie case of discrimination. Wit h respect to Count III and Counts VII through XII, Narin argu es that, although she failed to produce any evidence to demo nstrate 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 judgme nt on them because it "erroneously considered each reject ed application in isolation from all others and ignore d the principle that if some of the proffered reasons adv anced by a defendant employer are prextextual, `a factfinder may rationally disbelieve the remaining proffered reaso ns, even if no evidence undermining those remaining rational es 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 62 6(d)(2).

We undertake plenary review of the district court's grant of summary judgment, see Fuentes, 32 F.3d at 763, a nd

address each of Narin's contentions.6

A.To establish a prima facie case of age discriminati on

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 em ployer ultimately filled the position with someone suffici ently younger to permit an inference of age discriminatio n. See Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995). Sempier v. Johnson & Higgins, 45 F.3d 7 24, 728 (3d Cir. 1995). The district court concluded that N arin failed to establish a prima facie case as to Count IV because she could not establish that the position w as filled by someone sufficiently younger to permit an infere nce of age discrimination.

At the time the district court entered summary judg ment on Count IV, Narin only presented evidence that"Dom enick somebody" had been hired to fill the teacher in the alternative setting position. She did not know the

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6. As a preliminary matter, we note that counsel fo r Lower Merion has submitted a letter pursuant to Federal Rule of Appe llate Procedure 28(j), in which he contends that the Supreme Court's decis ion 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 AD EA, 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 no t 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)(holdin g 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 )).

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individual's last name. Nor did she know his age. I t was only after summary judgment was entered that Narin learned that "Domenick somebody" was actually Domen ick Pavia, age 35. However, we do not understand Narin' s argument on appeal to be that the district court er red in granting summary judgment on the basis of evidence she failed to present. Rather, we understand Narin to a rgue that her failure to produce the age and identity of the individual who ultimately filled the position shoul d have been excused because she presented evidence at the summary judgment stage establishing that the Count IV position existed, thus severely undermining Lower M erion's repeated contention that the position did not exist

.Although we recognize that the elements of the prim a

facie discrimination case are not to be applied rig idly, 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 i n granting summary judgment. In producing the posting that established the existence of the Count IV position, Narin undoubtedly produced evidence suggesting that she h ad been treated unfairly by Lower Merion. But, to surv ive 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 distric t. She needed to present evidence suggesting that the unfa ir treatment she received was a result of her age. Bec ause Narin presented no evidence that the Count IV posit ion was filled by someone sufficiently younger than Narin, we cannot fault the district court for not finding tha t it could infer age discrimination.

The appropriateness of the district court's decisio n to grant summary judgment on Count IV also is supporte d 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 mu lticertified teacher with experience in an "alternativ e setting." Although Narin possesses certifications in two fore ign languages and in English, she lacks certification t o 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," wh ich the advertisement expressly required. Although the cour t will not countenance any unlawful discrimination because of age, we recognize that the district court must weig h carefully the evidence or lack thereof of discrimin ation.

In sum, although we are disturbed by the actions of Lower Merion in insisting that the Count IV positio n did not exist, we do not believe that those actions, repreh ensible as they may be, were sufficient to permit an inference of ADEA

discrimination and excuse Narin's failure to establ ish 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 i ngranting summary judgment as to Count III and Count s VII

through XII. In this connection, Narin does not arg ue that the district court incorrectly concluded that she f ailed to produce evidence specifically directed at undercutt ing the credibility of Lower Merion's legitimate, nondiscri minatory reasons for not hiring her for the positions underl ying these Counts. Rather she argues that summary judgment was inappropriate even in the absence of such evidence. Specifically, she asserts that the evidence of pret ext with respect to Counts I, V, and VI coupled with the evi dence of what she considers to be Kearns' central and decept ive role in the hiring process provided a sufficient basis f rom which

a rational trier of fact could have concluded that all of Lower Merion's justifications for not hiring her we re pretext.

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7. We also note that when Narin uncovered the posti ng for the Count IV position, the proper course would have been to requ est a continuance to take additional discovery. See Fed. R. Civ. P. 56(f ). Alternatively, when Narin learned the age and identity of "Domenick som ebody" before the commencement of the trial, she also could have requ ested the district court to reconsider its grant of summary judgment o n the Count IV position.

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In support of her position, Narin principally relie s on this Court's decision in Fuentes. In Fuentes , this Cour t held that "to avoid summary judgment, the plaintiff's ev idence rebutting the employer's proffered legitimate reaso ns 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 a t 764. However, in announcing this holding, we were carefu l to note that it is not necessary for a plaintiff to"ca st 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 factfin der's rejection of some of the defendant's proffered reas ons may impede the employer's credibility seriously enough so that a factfinder may rationally disbelieve the remainin g proffered reasons, even if no evidence undermining those remaining rationales in particular is available." I d. at 764-

765 n. 7.

Lower Merion contends that this aspect of the Fuent es decision has no application to Narin's case. It arg ues that the above-quoted statements apply only in situation s where the defendant offers several nondiscriminatory reas ons 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 th at Narin suggests, Narin's evidence of pretext with respect to Counts I, V, and VI, even when coupled with the evidence o f Kearns' central and allegedly hostile role in the h iring process, would not warrant reversal of summary judg ment on the remaining Counts.

First, we note that, although the district court co ncluded otherwise, Narin's evidence of pretext with respect to the Count V position (Harriton High School English Teac her) was insufficient as a matter of law. Principal Seam an, who possessed authority for the hiring decision, testif ied 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

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another candidate, Kathy Bress. To demonstrate that this subjective justification constituted pretext, Narin principally relied on the deposition testimony of her other int erviewer, Nancy Pertschuk. Pertschuk testified that she rated Narin's interview performance highly and considered Narin t he top choice for the position. However, Pertschuk also te stified that Kathy Bress was on her "short list" of two for the position and that her leanings toward Narin probabl y reflected that she was friends with Narin. Thus, ra ther than undercut Principal Seaman's justification for not h iring Narin, a decision made principally on the basis of a subjective interview, which is a ready tool for discrimination, Pertshuk's testimony tends to subst antiate

it.8

Second, as to the positions underlying Counts VIII through XI, we do not see how Narin's evidence of p retext with respect to Counts I and VI, or her evidence th at Kearns lied about the existence of the Count IV pos ition, 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 Merio n 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 t he record is devoid of any evidence suggesting that the justi fications of these decision makers for not hiring Narin amoun ted to pretext. Because Kearns had nothing to do with the decisions reached in these counts, his lack of cred ibility may not be attributed to the hiring decisions. Thus , without evidence of pretext relevant to the justifications for nothiring Narin for these positions, no rational trier of fact

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8. Accordingly, we will affirm the district court's grant of summary judgment as to Count V on the ground that Narin fai led 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).

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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 pretex t derived from Counts I, IV, and VI because Narin failed to e stablish a prima facie case with respect to Count XII. In he r complaint Narin alleged that she was not hired for various instructional aide positions on the basis of her ag e. However, as the district court noted, the record is devoid of any evidence that Narin ever applied for these posi tions 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. S ee In re Carnegie Ctr. Assocs., 129 F.3d 290, 298 (3d Cir. 1 997).

Finally, turning to Counts III and VII, we again co nclude

that no rational trier of fact could find that Lowe r Merion's justifications for not hiring Narin for the positio ns referred to in these Counts were pretextual. As to Count III , Lower Merion produced evidence tending to demonstrate tha t it

did not interview Narin because she lacked elementa ry school teaching experience as well as an elementary school certification. Discovery revealed that the individu al ultimately hired for the position possessed both. A s to Count VII, Lower Merion presented evidence that it did not hire Narin for the position because it had alreadyf illed the position by the time Narin applied for it. Narin pr oduced no evidence to contradict this legitimate, nondiscrimi natory reason. Although Kearns was involved in the screeni ng of Narin's application for both of these positions, we do not

believe his actions in connection with Counts IV an d VI provide a sufficient basis from which a rational tr ier of fact could conclude that the reasons for not hiring Nari n for the above positions amounted to pretext. We believe a c ourt must exercise caution in permitting claims to proce ed to

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9. Moreover, we also think that as to Counts X and XI Narin failed to establish a prima facie case of discrimination. Low er Merion hired Rita Lerario, age 49, and Frank Panaia, age 54, for the Count X and XIpositions. Because these individuals' ages do not d iffer materially from

Narin's, we cannot conclude that Lower Merion ultim ately 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 he re.

Accordingly, we will affirm the district court's gr ant 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 thr ee evidentiary rulings of the district court. Where a party

makes known the substance of the evidence she desir es 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. 1 997). However, where a party fails to make known the subs tance of the evidence she desires to introduce, we review only for plain error. See id.

A.

Narin first argues that the district court abused i ts discretion in excluding evidence related to Counts III and IV and Counts VII through XII. Specifically, she claim s that "[t]he jury should have been permitted to hear evid ence of pretext pertaining to one or more of the nine dismi ssed 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 undermi ning the credibility of Kearns with respect to the Count IV position, the record does not disclose that Narin e ver attempted to offer this evidence, and we perceive n o 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 ab used its discretion in excluding evidence of pretext pro duced in

16connection with Count V. The district court exclude d the

evidence because it believed evidence of time barre d claims inadmissible to show pretext. In our view, even ass uming the district court's evidentiary ruling in this reg ard 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 resp ect 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 under lying

Counts I and VI.

C.

Narin's final evidentiary point is that the distric t court abused its discretion in excluding certain numerica l evidence pertaining to Lower Merion's hiring practi ces. Specifically, Narin sought to introduce yearly list s containing the names and ages of the individuals hi red by Lower Merion for every year beginning with 1986 and continuing through 1997. Narin asserts in this appe al, as she did in the district court, that the lists demon strate that in 1992 Lower Merion began to hire substantially mo re 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 wa s applying for jobs in the Lower Merion school distri ct. However, it refused to permit Narin to introduce hi ring lists for any other years on the ground that they were ir relevant. Again, we perceive no abuse of discretion. The list s Narin sought to introduce provided the ages of the indivi duals Lower Merion actually hired. In addition, the lists reflected that Lower Merion hired more individuals younger th an forty years of age than older. However, we think th ese figures could only be probative of discriminatory i ntent if, at the very least, it also were shown that roughly equivalent numbers of over-forty and under-forty individuals a pplied

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for employment with Lower Merion. Otherwise, the li sts simply show that Lower Merion hires young individua ls -- not that Lower Merion hires young individuals to th e 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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