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. e du/thir dc ir c uit_2001/205Filed September 7, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-2818

BERNADINE DUFFY

Appellant,

v.

PAPER MAGIC GROUP, INC.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 98-cv-01518) District Judge: The Honorable A. Richard Caputo

Argued: June 28, 2001

BEFORE: BECKER, Chief Judge, and NYGAARD, and REAVLEY* Circuit Judges.

(Filed: September 7, 2001)

Peter G. Loftus, Esq. (Argued)

Loftus Law Firm

Main Street

P.O. Box V Waverly, PA 18471

Attorney for Appellant Bernadine Duffy

___________________________________________________ ______________ * Honorable Thomas M. Reavley, Circuit Judge for th e United States Court of Appeals for the Fifth Circuit, sitting by designation.Daniel T. Brier, Esq.

Donna A. Walsh, Esq. (Argued) Myers, Brier & Kelly 425 Spruce Street

Suite 200 Scranton, PA 18503

Attorney for Appellee Paper Magic Group, Inc.

OPINION OF THE COURT

NYGAARD, Circuit Judge:

Bernadine Duffy brought an Age Discrimination in Employment Act claim, 29 U.S.C. S 621 et seq., agai nst her former employer, Paper Magic, Inc. Duffy argues tha t she was constructively discharged as a result of a cont inuing pattern of discrimination by Paper Magic. She appea ls from the District Court's summary judgment in favor of t he

defendant. We will affirm.

I.

Duffy began working for Paper Magic in 1986 as a Customer Service Representative. She was promoted t o Senior Customer Service Representative in January 1 987, and to Assistant Customer Service Manager in July 1 989. As Assistant Customer Service Manager, her responsibilities included overseeing the order proc essing

division.

Duffy alleges that in August 1993, she was "passed over" for a promotion to Manager of the Order Processing Customer Service Department, for someone younger th an she. A short time thereafter, however, Paper Magic promoted Duffy to Supervisor of Order Processing in the Order Processing/Customer Service Department. She contends that following this promotion, Paper Magic changed her title back to Assistant Customer Servic e Representative, even though her duties remained the same.

2In September 1994, Paper Magic transferred Deborah

Pica into the Order Processing/Customer Service Department as Supervisor of Customer Service. Pica was approximately thirty years old at the time. Duffy a lleges that after Pica arrived, one of her supervisors ref used to cooperate with her, continually harassed her, and r efuted any of her suggestions to improve or correct matter s in the department. In contrast, her supervisor "bent over

backwards" to make Pica's life easier.

In December of 1995, Duffy's title was changed to Supervisor of Order Processing. At this time, one o f her supervisors explained that she and Pica were gettin g 3% raises to take on the added responsibility of new acquisitions. Duffy contends, however, that her co- workers informed her that Pica really got a 25% raise. She states that, the company, to justify this differential, ma de Pica the new Customer Service/Order Processing Manager. Duff y contends that she expressed interest in this positi on but her supervisor discouraged her because of her age, and of the long hours the position would ostensibly requir e.

In addition, Duffy alleges that she was prevented f rom participating in the hiring process for the Order P rocessing Department, despite her supervisory position. She c laims that Pica handled all interviews, and rebuffed her input. She further contends that, unlike the Customer Serv ice side of the department, Order Processing had to wai t months before getting approval to hire new staff. A s a result, Duffy worked overtime hours, but unlike oth er salaried employees, did not receive overtime pay.

Duffy alleges other inequities. She was one of two supervisors excluded from a company meeting during May of 1996. She was also excluded from a training semi nar for supervisors. She further maintains that she was the only supervisor in the company who was given a weekly"re port card" on her job performance by the School Marketin g Department. She was also removed from all committee s, including the computer committee and the total qual ity management committee. Additionally, she contends th at she was reprimanded by the Human Relations Director for failing to participate in company events. According to Duffy, her nonparticipation resulted in a lack of cooperat ion from

3others for work-related projects. She states that s he

complained about such conduct but nothing changed. As a result of these working conditions, Duffy's health deteriorated, requiring that she consult with a phy sician.

Finally, Duffy maintains that her superiors made derogatory remarks about her age. Specifically, she alleges that her supervisor told her that "she was getting older and wasn't remembering things as she got older." Anothe r supervisor reminded her that she was getting older and advised her to look for another job requiring fewer hours.

Generally, Duffy was rated as an average to above average individual worker. However, her annual performance evaluations consistently reflected weak ness in the areas of supervisory, managerial, and organizat ional skills. For example, in 1996, she was rated "high a verage" for her work but "low average, at best" for her sup ervisory skills. However, Duffy's salary was not reduced as a result of her evaluation nor were her responsibilities mod ified. She received an increase in salary for each year betwee n 1986 and 1996 and her salary doubled in the ten years th at she was employed by Paper Magic.

On July 24, 1996, Duffy resigned from her position at Paper Magic. On February 3, 1997, she filed an administrative charge of discrimination with the Eq ual Employment Opportunity Commission. She also filed a n administrative complaint with the Pennsylvania Huma n Relations Commission on February 19, 1997. On May 7

, 1997, the PHRC formally dismissed Duffy's charge of discrimination as untimely, and for lacking any bas is for equitable tolling of the time limitations.

Later, Duffy filed this action against Paper Magic, alleging claims under the Age Discrimination in Employment A ct, 29 U.S.C. S 621 et seq., the Americans with Disabil ities Act, 42 U.S.C. S 12101 et seq., the Worker Adjustment an d Retraining Notification Act ("WARN"), 29 U.S.C. S 2 101 et seq., the Pennsylvania Human Relations Act, 43 P.S. S 951 et seq., and Pennsylvania common law.

Paper Magic filed a 12(b)(6) motion to dismiss each count of Duffy's complaint. Duffy voluntarily withdrew he r PHRA and wrongful discharge claims. The District Court t hen

4partially granted Paper Magic's motion, and dismiss ed

Duffy's ADA and WARN claims. The District Court concluded that Duffy failed to state a claim under the ADA since merely being overweight is not a disabling im pairment under the ADA. The court dismissed Duffy's WARN cla im because she failed to allege a "plant closing" or " mass layoff " triggering the statute's notice obligation

.

Discovery closed and Paper Magic moved for summary judgment on Duffy's ADEA claim, her only remaining claim. The District Court concluded that Duffy failed to demonstrate that she was constructively discharged or otherwise suffered an adverse employment action wit hin the purview of the ADEA and entered summary judgment in favor of Paper Magic.

Duffy filed a notice of appeal, challenging only th e entry of summary judgment in favor of Paper Magic on her claim of age discrimination. We exercise plenary review t he District Court's decision to grant summary judgment . See Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992).

II.

The ADEA prohibits employers from discriminating against individuals in hiring, discharge, compensat ion, term, conditions, or privileges of employment on th e basis of their age. See 29 U.S.C. S 623(a)(1). Age discri mination may be established by direct or indirect evidence. See Connors v. Chrysler Fin. Corp., 160 F.3d 971, 972 ( 3d Cir. 1998). When evaluating ADEA discrimination claims b ased on indirect evidence, a plaintiff may establish a p rima facie case of age discrimination under the ADEA by demonstrating that she: (1) was a member of a prote cted class, i.e., that she was over forty, (2) is qualif ied for the position, (3) suffered an adverse employment decisi on, (4) and was ultimately replaced by a person sufficientl y younger to permit an inference of age discriminatio n. See id. at 973.1 To survive a motion for summary judgme nt, the

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1. A prima facie case creates an inference of unlaw ful discrimination. The burden of production then shifts to the employer wh o can dispel the

5evidence must be " `sufficient to convince a reason able

factfinder to find all of the elements of [the] pri ma facie case.' " Id. (quoting Keller v. Orix Credit Allianc e, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en banc)). Here, th e District Court found that Duffy had failed to show a prima facie case because she did not produce evidence suf ficient

to convince a reasonable fact finder that she had established any adverse employment action. We agree

.

Duffy asserts that she established a prima facie ca se because she was constructively discharged, and thus suffered an adverse employment action. We employ an objective test to determine whether an employee can recover on a claim of constructive discharge. See i d. at 974. Specifically, a court must determine "whether a rea sonable jury could find that the [employer] permitted condi tions so unpleasant or difficult that a reasonable person wo uld have felt compelled to resign." Id. (citations omitted).

Duffy claims that she was constructively discharged because she experienced a "continuous pattern of discriminatory treatment" at Paper Magic. As noted earlier, she contends that: 1) she was not considered for a promotion to Manager of the Customer Service/Order Processing Department because of her age; 2) her department was consistently understaffed and manage ment delayed in providing needed assistance; 3) her supe rvisors made negative remarks about her age; 4) she was exc luded from a training seminar for managers; 5) she was re moved from work-related committees, such as the computer committee and the total quality management control committee; 6) she was prevented from participating in the hiring for the Order Processing Department, even th ough she was the Supervisor; 7) other employees and

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inference by articulating a legitimate, nondiscrimi natory reason for its actions. See Connors, 160 F.3d at 974 n.2. If the e mployer meets this burden, the employee must then prove by a preponder ance of the evidence that the articulated reasons are a pretext for discrimination. See id. Where the employee is unable to establish a prima facie case, however, no inference of discrimination is raised a nd the employer has no burden to proffer a reason for any action. Spang le v. Valley Forge Sewer Auth., 839 F.2d 171, 174 (3d Cir. 1988).

6departments failed to cooperate with her; 8) she wa s the

only supervisor in the company who was given a week ly "report card" by the School Marketing Department; 9 ) Human Resources reprimanded her for failing to part icipate in company events; and 10) other salaried employees were paid for overtime work, while she was not.

The District Court held that, although the above allegations indicated that Duffy experienced stress and discomfort on the job, she did not provide sufficie nt evidence that she was constructively discharged or otherwise suffered an adverse employment action. Th e Court reasoned that Duffy's testimony focused almos t entirely on her subjective view that Paper Magic constructively discharged her. Moreover, the Court noted that Duffy established none of the situations that we identified in Clowes v. Allegheny Valley Hospital, 991 F.2d 1159, 1161 (3d Cir. 1993), as suggesting constructi ve discharge. Specifically, Paper Magic never threaten ed to fire Duffy, encouraged her to resign from her position, or involuntarily transferred her to a less desirable p osition. Moreover, she received satisfactory job evaluations throughout her employment. And finally, there was n o evidence that Duffy utilized an internal grievance procedure or requested a transfer within the company.

The District Court correctly recognized that Duffy had failed to demonstrate any of the factors listed in Clowes. However, it is important to note that we have never made the Clowes factors an absolute requirement for reco very. See id. (noting that the plaintiff "cannot rely on many of the factors commonly cited by employees who claim to ha ve been constructively discharged") (emphasis added). The absence of the factors in Clowes is not necessarily dispositive. Nonetheless, we agree with the Distric t Court that Duffy was not constructively discharged.

We have held that constructive discharge may occur "when the employer is aware that the employee has b een subjected to a continuous pattern of harassment and the employer does nothing to stop it." Aman v. Cort Fur niture Rental Corp., 85 F.3d 1074, 1084-85 (3d Cir. 1996). In Aman, the plaintiff was continuously subjected to r aciallybased insults and false accusations of favoritism,

7wrongdoing, and incompetence; she was repeatedly

admonished not to touch or steal anything; she was forced to do menial tasks not assigned to white employees; her coworkers withheld information and stole documents th at she needed to perform her job; and her employer threate ned to "get rid of her." 85 F.3d at 1077-80. When the empl oyee retained an attorney and submitted a formal complai nt of discrimination, she was subjected to additional fal se accusations of incompetence and the abusive conduct of

her co-workers intensified. See id. at 1085. On the se facts, we held that the employer was not entitled to summa ry judgment on a claim of constructive discharge. See id.

Later, in Levandos v. Stern Entertainment, 860 F.2d 1227 (3d Cir. 1988), we held that several incidents of discriminatory conduct were legally sufficient to r aise the issue of constructive discharge.2 Specifically, the plaintiffemployee filed an affidavit stating, inter alia , t hat: she was the only woman in a management position; she was excluded from management meetings; the general mana ger of the restaurant boasted that the plaintiff `would not be there long'; management told other employees that t he plaintiff did not fit the mold of a maitre d'hotel because she was a woman; the owner asked an employee to find a man to replace the plaintiff; management falsely accuse d her of stealing, drinking, and fraternizing with employees ; and on one evening, she discovered wine bottles in her loc ker to make it appear as if she were stealing. See id. at 1228. Additionally, a co-worker submitted an affidavit pr aising the plaintiff 's work and reputation and stating th at management disliked women. In a complaint filed wit h the EEOC, the plaintiff alleged that she was not permit ted to order supplies although a male manager was able to do so, and that she was replaced by a male friend of the c hef. The plaintiff resigned, stating that her decision was p recipitated by the accusations of stealing.

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2. We also emphasized that a single, non-trivial in cident of discrimination may be egregious enough to compel a reasonable person to resign. See Levandos, 860 F.2d at 1232. In such a case, "an employment discrimination plaintiff may simply face a more difficult burden of proof in establishing the employer's liab ility . . . ." Id.

8We reversed the District Court and held that the re cord

"contain[ed] more than a scrap of evidentiary mater ial, . . .

from which a fact-finder could infer that condition s at the

restaurant were so intolerable that a maitre'd of r easonable sensitivity would be forced to resign," and that th e plaintiff 's affidavit alone was sufficient to defe at summary judgment. Id. at 1231 & n.7.

Although the present case is similar to Aman and Levendos in that it concerns a pattern of conduct r ather than an isolated incident, the situation does not r each the threshold of "intolerable conditions." Although cer tainly stressful and frustrating, the alleged conduct woul d not compel a reasonable person to resign. For example, in contrast to the changing duties of the plaintiffs i n Aman, Duffy's tasks remained the same while she was the Supervisor of Order Processing. She was never assig ned degrading or menial tasks and she consistently rece ived pay increases during her employment. Duffy does all ege that her department was understaffed and that management deliberately delayed providing needed assistance, thereby making her job more difficult. Duffy's job, however, did not become impossible as a result of these staff shortages. Rather, the shortages simply requi red her to work longer hours until help arrived. This made her job more stressful, but not unbearable. See Connors , 1 60 F.3d at 975 ("[E]mployees are not guaranteed stress-free environments and [ ] discrimination laws`cannot be transformed into a palliative for every workplace g rievance, real or imagined, by the simple expedient of quitti ng."). And, as Duffy admits, Paper Magic did eventually pr ovide assistance to her department.

Like the staff shortages, Duffy's exclusion from committees, hiring decisions, a single staff meetin g, and a single supervisor seminar would not render a job so unbearable that she was forced to resign. Although they may have disappointed and somewhat upset her, such exclusions did not affect Duffy's ability to do her job as Supervisor of Office Processing. As such, although Duffy may have subjectively believed that these circumsta nces were too onerous to bear, no reasonable trier of fa ct could conclude that exclusion from committee membership o r

9lack of hiring authority renders working conditions

objectively intolerable. See Gray, 957 F.2d at 1083 ("The law does not permit an employee's subjective percep tions to govern a claim of constructive discharge.").

Moreover, Duffy's weekly "report card" and lack of overtime pay do not warrant resignation. Although t he "report card" constituted close supervision, Duffy does not allege that it placed greater requirements on her t han others or imposed unreasonably exacting standards o f her job performance. It merely provided her with feedba ck and information. Thus, it does not amount to overzealou s supervision that supports an inference of intolerab le working conditions. With respect to the lack of ove rtime pay, it is undisputed that Duffy was an exempt supe rvisory employee who was not entitled to overtime pay under federal law. See 29 U.S.C. S 213(a)(1).

Duffy's attempt to use her physician's opinion that her job had an adverse affect upon her health to prove that her working conditions were intolerable also fails. The se health problems support an inference that Duffy's environm ent was stressful. However, as noted above, a stressful

environment does not amount to constructive dischar ge.

Duffy's contentions that her supervisors, because o f her age, made disparaging remarks and failed to give he r a promotion provide some support for her claim. With respect to the alleged remarks about age, she contends that one of her supervisors told her that "she was getting olde r and wasn't remembering things as she got older." She al so contends that another supervisor reminded her that she was getting older and suggested that she look for a nother job with fewer hours. She alleges that these commen ts were made several times over the course of her employmen t with Paper Magic.3 Although these comments were inappropriate, they were not sufficiently derogator y or offensive to compel a reasonable person to resign. Additionally, they did not happen on a constant or even frequent basis. Thus, they did not create intolerab le working conditions.

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3. Duffy also alleges demeaning remarks about her w eight but they are not relevant to her age discrimination claim.

10Regarding her "missed" promotion, Duffy's depositio n

asserts that her supervisor told her that Pica was better suited for the position because she was younger and therefore could manage the longer hours. She report s that her supervisor told her that "she was getting older now" and that she "should just do her regular job." We r ecognize that being "passed over" for a promotion based on a ge rather than merit would be highly frustrating and u psetting to a reasonable employee. However, because Duffy ha s not produced evidence that she was qualified for the po sition of Customer Service/Order Processing Department Manage r, her missed promotion cannot support her constructiv e discharge claim. See Spangle, 839 F.2d at 173-74 (dismissing constructive discharge claim where empl oyee's prima facie case was insufficient because he was no t qualified for supervisory position). Duffy's job ap praisals indicate weakness in the areas of supervisory, mana gerial, and organizational skills. For example, Duffy was c ounseled on several occasions to improve her supervisory ski lls. In her 1994 appraisal, her supervisor wrote: "It is fe lt that Bernie at times is part of the problem not the solu tion. Bernie must become a supervisor and separate hersel f from friends and the company grapevine." Duffy's 1995 performance evaluation included similar comments concerning her supervisory and management skills:"N o problems with quality of work--only question is qua lity of supervision part of job." The 1995 report concludes : "Bernie, as an individual worker, is high average o r above, but when considering performance as m[anager] of dep[artment], the rating is low average, at best, a nd below average at times when she is upset or in disagreeme nt with m[anagement]." In 1996, her overall performance was rated average, but she was again rated "low average, at b est" for her supervisory skills. Without proof of her qualif ication to perform the supervisory duties of the management promotion, the fact that Duffy may reasonably have found it intolerable that she was "passed over" for her a ge is not enough to raise an inference of age discrimination.

Finally, we note that Duffy's own explanation as to why she left Paper Magic supports our conclusion that s he was not constructively discharged. When pressed to expl ain why she elected to resign, Duffy responded that her dec ision

11was based, in part, on her son's recent graduation from

college and her resultant financial ability to leav e. She

stated:

Well, I thought about it, and I just couldn 't take it no more. I wasn't getting cooperation from anyb ody. In my opinion, I was just being forced out. Plus, I had my son in college and he was on his own, so in that situation I could, you know, I could afford to leave. Other years

I couldn't afford to leave and stuff.

App. at 323. This admission undermines Duffy's clai m that she was constructively discharged.

III.

In sum, we hold that Duffy did not produce evidence from which a reasonable jury could find an adverse employment action, which is a prerequisite to a suc cessful age discrimination claim. Therefore, we will affirm the District Court's summary judgment.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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